CHAPTER 5 FRAMING THE FUNCTIONING OF COMMUNITY COURTS IN MAPUTO THROUGH
5.6 C ONCLUDING REMARKS
113 The training opportunities, however, divided the national community between those who are pro and others who are contra such learning opportunities. The interview with the organisation CEPAJI, involved in training activities with community courts judges, found that training provided good opportunities for judges to become familiar with the new legal developments and be sensitised about the human rights of vulnerable groups.658 This opinion was shared by development actors involved in funding such opportunities (including the United Nation Development Program, UNICEF and the Danish Development Cooperation).659 These development actors argue that the presence of non-state mechanisms of conflict resolution (including community courts) can no longer be ignored, and that there is consequently an urgent need to further the knowledge and awareness of human rights in these institutions.660
In an interview with the director of a CSO who was a legal pluralist academic, the director found the idea of such training a westernised one, and one that likely only appealed because of the funding it brought to the organisers.661 In this interview, the director argued that community court judges had no need of such training. The director explained that community court judges were likely too old to take in new concepts (such as the idea of domestic violence as it is perceived and understood today), and besides, the main objective of community courts is (in the legal pluralist perspective) the application of traditions and customs.662
Lively debate about whether training presents a good opportunity or an obstacle to community courts in enhancing access to justice will continue. Legal pluralism and postcolonial theory both agree that if such training is conducted by Western-trained personnel, it only distance community court judges from their constituencies and force them to assume all the problems faced by judicial judges. If such training is conducted by legal pluralists applying postcolonial studies to criminal justice, community courts judges may come to understand that they have respected knowledge and that they can play an important role in the criminal justice system.
114 pluralism as applied to criminal justice, and as provided by article 4 of the Mozambican Constitution.
At the national level, the existence of legal pluralism, the regular increase of community courts, and the recognition of community courts by political representatives are the main factors enabling community courts to improve access to justice for all in the country. The fieldwork conducted in the city of Maputo confirmed these factors, as well as other practical opportunities, which outnumber the practical obstacles.
As shown in the chapters of this thesis, however, recognition of only legal pluralism in practice is not enough. The weak approach of legal pluralism to criminal matters must be accompanied by a theoretical framework of postcolonial studies, the application of which was analysed through the below characteristics of community courts.
The existence of the community courts’ commission represents one way in which judges can share their opinions and positions on different issues as well as improve collaboration with different external stakeholders.
The gender balance among judges is shown to be important not only for gender equity, but also for its many repercussions on how cases involving gender issues are dealt with at the courts (for example, domestic violence). Interest in achieving such a balance is also visible in the new training opportunities made available to community court judges, and particularly those around issues of domestic violence and general family law. In terms of the composition of the community courts, having judges live in the same community in which they work helps to improve equitable access to criminal justice, as the judges are more aware of the problems in their own communities and better understand their causes and ways of addressing them.
Court proceedings and their characteristics represent the most important practical opportunities for community courts to improve access to criminal justice and improve conditions in the prison system. Community courts provide simplified mechanisms of conflict resolution with respect to the languages used, offer better timeframes for case resolution, and are less expensive to run and participate in. Conversely, in the judicial courts, several factors undermine equal access to the justice system. These include the well-known bureaucracy of the judicial courts and the delays this causes, the use of the Portuguese language and technical terminologies that are largely unknown to the majority of Mozambicans, and the high costs of bringing cases to court.
Community courts – in the ways in which decisions are taken at the community level, and the kind of remedies and penalties put forward – practise and embody the principles of restorative justice. On the other hand, judicial courts practise and embody the ideas of retributive justice, and show little interest in understanding either the causes of crime or the consequences that imprisonment can have, both for offenders and their families. At the judicial courts, judges apply the law while community courts reach their decisions by forging consensus between the parties. The judges of the community courts act as mediators, involving extended families and local communities where necessary. Community courts apply fines and issue community service orders. Their decisions are monitored not only by the courts, but also by families and the local communities. For community courts, the aim of punishment is the restoration of the social harmony broken by the dispute.
Concerns were noted throughout this chapter in relation to the love-hate relationship that community courts have with the secretaries of the neighbourhoods. On the one hand, the
115 physical proximity of the courts to the secretaries of the neighbourhoods can strengthen collaboration. On the other hand, as critics highlight, this may lead to a politicisation of the courts in which community court judges become agents of the ruling political party rather than acting as the providers of a non-partisan public service. The concern about the politicisation of the community court judges is also stressed in relation to the issue of the subsidies that judges regularly request from the state. These concerns, however, will only be removed when a democratic system governs all sectors of the country.
Finally, the relationship between the judicial courts and non-state mechanisms of conflict resolution represents a practical opportunity for the criminal justice system. The use of non- state conflict resolution mechanisms will decrease the number of cases that have to go through the criminal justice system. But relations between the judicial courts and community courts remain challenging. It is only by strengthening collaboration and creating regular and effective channels of communication between the two court systems that this relationship will improve.
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