Since the 2012 crisis in Mali, international and national actors have looked to strengthening its justice sector as one way to build peace and stability. Because the state has no real presence in the northern regions of Mali, the justice ecology there is dominated by customary justice mechanisms, with which stakeholders must therefore engage if they are to make significant headway in local justice sector development. However, information is not available on how customary justice systems in the north function, what their strengths and limitations are and their ability to make needed changes. This mapping study, based on interviews by local researchers across six administrative ‘circles’ in the northern regions of Gao, Mopti and Tombouctou, seeks to fill this information gap.

This report reveals distinct customary justice mechanisms in each of the subject circles, but certain commonalities as well. For example, the customary justice leaders tend to be older males who already hold important roles in their communities. Religious customary leaders usually have some formal training, but for others training can be nonexistent or based solely on observation of other customary justice leaders. In general, the leaders speak with both sides to a dispute, hear witnesses, allow each side to confront each other and make their decisions in a public manner without fear of repercussions. Interviewees prefer to keep disputes among their families or neighbours, rather than dealing with them outside of the village level. The customary justice mechanisms handle a wide-array of disputes including land, inheritance, theft or marital issues. Customary leaders can also refuse a case, with some preferring not to handle serious crimes like rape and murder, crimes related to the 2012 crisis, boundary disputes and sorcery.

Interviewees who had direct experience as a participant in a customary justice process reported an 84 percent satisfaction rate, and the majority of this report’s respondents spoke in favour of the continual usage of these systems. Interviewees like that customary justice mechanisms are free, easily accessible and more efficient than the formal justice system. However, they can also take longer than the formal justice system to resolve disputes, and a lack of written decisions weakens the enforceability of their decisions. Of the 25 customary justice leaders interviewed, 24 percent already collaborate with the formal justice system, and 52 percent stated that they would like to collaborate more with that sector in the future.

There is a strong preference for customary justice leaders to be divorced from politics to ensure that their decisions are based on what they believe to be right in their conscience. A majority of those who discussed the issue of corruption also viewed the formal justice system as being more corrupt than customary justice mechanisms, and very few shared examples of bypassing customary justice leaders in order to find a fairer outcome. Many also viewed customary justice systems as being corrupt, but believed that those systems are more likely than the formal system to return to a form of ‘pure justice.’

Customary justice mechanisms are trusted in large part because of their ability to preserve social cohesion, whereas modern justice is seen as destroying the social fabric, complicating social interactions and disrespecting traditions and values. As members of the communities they serve, customary leaders are also seen as being more aware of the social implications of their decisions, and more willing to take efforts to create compromises between parties. Interviewees expressed that even if they disagreed with a decision, they would likely still adhere to it to maintain peace in the community.

There were mixed views in terms of whether these mechanisms are suitable to handle cases related to vulnerable groups. Many expressed the belief that women are marginalized or prevented from directly participating in these systems, especially at the leadership level. The reasoning for this difference in treatment was often justified through statements from the Qur’an, and also led some respondents to believe that modern justice would handle women’s issues better, as it provides more equality between the sexes. However, out of 57 respondents across the three regions who gave a response on the issue as to whether customary systems can become more inclusive of women, 22 answered yes, 18 answered no and 17 were uncertain.

This report was unable to gain much information on these systems’ treatment of the youth population, as many interviewees did not address the issue, and we were not able to interview more than a few people under the age of 30. Of the responses obtained there is a mixed view, with some believing that the systems can evolve in relation to youth, but others stating that as the roles and privileges of community members are strictly defined by tradition, change will be hard to implement. Some also pointed out that more rights are afforded to youth by the formal justice system than customary justice traditions. However, the customary systems are seen as being accessible to the youth.

Most dismissed inquiries into customary justice’s treatment of slaves as irrelevant given that slavery no longer exists. However, some also held that slavery still exists, and among this group there was a split between those who believed that the customary systems could evolve in relation to slaves and those who did not. It was also asserted by one interviewee that younger slaves are more likely than older slaves to bring their masters to justice.

There are two themes that are particularly policy relevant in terms of supporting customary justice mechanisms: the potential revalorisation of the role of the qadi, and the role of customary justice leaders in land disputes. The qadi is an Islamic judge that is comparable to a judge in western systems, and is used predominantly in the northern regions of Mali. Both the 2015 peace agreement and a 2017 reconciliation conference held in Bamako called for the revalorisation of this mechanism to mediate civil disputes. Interviewees described the qadis’ processes as being very similar to those of the other customary leaders referenced above, and this report made the notable finding that none of our respondents identified the institution of the qadi as being corrupt or political.

Respondents identified land issues as being the most popular area for which they have brought a dispute to a customary leader. However, they also identified drawbacks of going to customary justice for help in this area. For example, the report’s respondents revealed a concern that the decision-making regarding land disputes could be arbitrary or lack enforcement power. However, the report also describes how a new national law passed in March of 2017, which attributes specific roles to customary leaders over the registering of land and resolving land disputes, has the potential to address these weaknesses in addition to forging a greater connection between the customary and formal justice systems.

When asked how the customary justice mechanisms in their regions could be strengthened and improved, respondents largely pointed in the direction of capacity-building measures such as training in their own methods and in disciplines such as human rights, technology, science and war crimes. Respondent suggestions also revealed an interest in raising awareness about how these localised systems work, of making clearer links or divisions of labour between the customary and formal systems, and of supporting discussions that could ultimately lead to the creation of a new integrated dispute resolution system that draws on the qualities of both.

We have identified seven specific policy recommendations — some context-specific, some sector-wide — for future engagement with these systems: 1) this study has found that each circle has its own specific traditions, and hence despite some commonalities, there is no one customary justice mechanism in Mali. Due to these differences, each locality will therefore require a context specific approach; 2) where it was revealed that certain interventions would be welcomed, for example in terms of capacity building measures and making clear links between the customary systems and formal system, it would be advantageous to build on the already existing momentum for change; 3) justice gaps specified by respondents, such as in the treatment of crimes related to the crisis and the distribution of property in the circle of Mopti to those who have left and then returned, can be a ripe entry point for interventions; 4) certain groups, such as women, youth and slaves are still vulnerable to unfair treatment by these mechanisms and a remedy for this will likely require the use of interventions such as quotas, the creation of competing mechanisms, and community debate on whether biased treatment aligns with the core values of the local customary mechanisms; 5) it would be beneficial to help the customary and formal justice systems create a more coherent system for working together through facilitating dialogue between the groups at the local or national level, for example at justice summit type of events, or through the use of creative storytelling methods to help explain the systems to each other and to show how they could work well together; 6) a follow-up study targeting the youth population would be helpful to ensure their buy-in for the future use of these mechanisms; and 7) some recommendations, such as for the customary leaders to make written records of their judgments, will need to be addressed by a sector-wide approach, in this case literacy training, in order to be effectively addressed.