Indigenous local structures for post-conflict justice in Southern Africa

Local structures for justice are integral for societies emerging from conflict. Of particular relevance to post-conflict societies are the institutions set up to address past wrongdoings and to respond to victims and perpetrators. Examples of such institutions include international tribunals, the International Criminal Court, the Rwandan gacaca courts, and the South African Truth and Reconciliation Commission (TRC). In post-conflict societies, these institutions have a dual function in that they aim to fulfil their justice mandate while, simultaneously, their good functioning entrenches the normative shift of a transforming society. In more orthodox conceptions such institutions are often seen as having a broader scope than courts in stable societies and as such, these various duties are often delegated to a number of different institutions. In the indigenous inkundla/lekgotla courts of Southern Africa, however, one can find a local justice system that, while promoting restorative justice, also looks to address the collective nature of wrongdoings, facilitate truth-telling and truth-seeking processes, and allows for amnesties to be granted without also granting impunity.

The traditional Afro-communitarian or Ubuntu understanding of persons sees individuals as inherently communally embedded and sees conflict as damaging not just to the victims, but to communities @AdamRandera

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The traditional Afro-communitarian or Ubuntu understanding of persons sees individuals as inherently communally embedded and sees conflict as damaging not just to the victims, but to communities. This lends itself to the idea that addressing conflict is a co-operative communal endeavour. Justice processes, particularly those relating to conflict, then become open processes that can include the chief or headman, village elders, the families of the conflicting parties and even the entire community. These systems gained international attention with the use of the gacaca courts in Rwanda and the mato oput ceremonies in Uganda, however, in South Africa such systems are most commonly known as inkundla or lekgotla. The openness of these processes were necessary as, due to the communally embedded nature of personhood, the group or family to which perpetrators and victims belonged were also considered relevant parties in the dispute, and they, along with the community more generally, even bore a secondary responsibility for the conflict.

The inkundla/lekgotla was presided over by the king, chief or headman, depending on the issue being addressed, as well as family and village elders and other respected persons, but the entire community could be involved in the process. Traditionally, a plaintiff could make an appeal directly to the inkundla/lekgotla forum and would be asked to explain their case in full, while the defendant would be called upon to respond to the accusations. Neither party received formal legal counsel and there was no official public prosecutor, rather, questions could be put to both parties by anyone on the council, the families of either party, or other members of the community, including passers-by. Members of the public were allowed to offer information or their opinions and suggest ways forward for the council to consider. If the king, chief or headman presiding over the issue made a decision without consulting the broader community, they would become the target of attack and would lose their support, their status, and potentially their position. A way forward was arrived at through discussion and consensus and the decision was then binding for the conflicting parties. Involving those accused of wrongdoing in reaching this decision made it possible for all parties to accept the outcome.

The inkundla/lekgotla system, being as it is, inclusive of all parties, inherently communal, and focused on reconciliation and returning to harmony, seems to be a promising, locally driven and embedded method of transformative justice @AdamRandera

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These processes were aimed at reconciliation, and thus adopted a restorative approach, which has been described by Murithi (2009) as consisting of five stages, namely: 

1. A fact-finding process whereby victims, perpetrators, witnesses, and community members are heard-out. At this stage, the council may also perform an investigative role. If judged to have done wrong, those accused would be encouraged by the community and the council to acknowledge their responsibility.
2. Perpetrators would be asked to repent to their victims and the community and demonstrate remorse.
3. Once perpetrators had asked for forgiveness, victims would be encouraged to forgive them, or at least show mercy.
4. If deemed necessary by the council and the community, perpetrators could be asked to pay an appropriate compensation or reparation. This was often symbolic, aimed at reinforcing the remorse of the perpetrators.  
5. Parties were encouraged to embrace reconciliation, coexistence and co-operation. This process could include the families of, or the groups associated with, the victims and perpetrators. In this way harmony could be restored. 

Murithi acknowledges that this process is often forestalled or resisted at various stages, but delineating the process as he does, makes clear the ways in which it addresses many of the problems associated with post-conflict justice. Firstly, the truth-seeking elements of the first stage satisfy many of the demands of victims in the light of wrongdoings, but also ensure that victims are acknowledged as victims. These ends are satisfied even if the perpetrators refuse to acknowledge responsibility in the second stage. Secondly, as mentioned, including both victims and perpetrators in decision-making makes the outcomes more acceptable to all, but it can also ensure all parties are able to trust in the justice system more generally. This is amplified by the fact that giving victims and their extended communities the right to participate in, and make recommendations to the council helps to address the structural inequality and harmful institutional norms and practices they would otherwise be subject to. Thirdly, the fact that perpetrators are asked to pay reparations, even once they have been forgiven in some cases, demonstrates that they were still considered accountable for their actions. Other punishments may include being ostracised or prohibited from social gatherings for a defined period, however, once a perpetrator has fulfilled their punishment, they are embraced without stigma and can return to normal life. Thus, while amnesty is granted to perpetrators, this does not amount to impunity. The possibility of amnesty, however, incentivises participation in the process. Finally, conceiving of both conflicting parties as communally embedded, and giving the entire community the right to participate and testify helps understand the harm on a communal level, and means that the communal nature of wrongdoings can be addressed. The reconciliatory nature of the process allows the parties involved to think of it not in terms of who will win or lose their case, but in terms of finding a ‘win-win’ outcome.

It is natural to assume that some nuances will need to be made to this system so as to account for the complexities of the 21^st century, such as making allowances for international observers, or providing both those involved with legal and psychological counselling. This being said, however, the inkundla/lekgotla system, being as it is, inclusive of all parties, inherently communal, and focused on reconciliation and returning to harmony, seems to be a promising, locally driven and embedded method of transformative justice in a broader peacebuilding context.

Adam Joshua Randera is a Programme Officer in the Operations Division at ACCORD.

This article is derived from Adam Joshua Randera’s MPhil in International Peace Studies dissertation completed at Trinity College, Dublin.