List of Tables
Chapter 11: Conclusions, Policy Implications and Recommendations
2.10.1 Empowerment through forum shopping across plural justice systems
Applying a gender perspective, scholars suggest that forum shopping may improve access to justice for women (Chopra and Isser, 2012:353; Sandefur and Siddiq, 2011:113; Harper et al, 2011:179; Curran and Bonthuys, 2004:6). Harper, et al 2011:178.) believe that “genuine choice only exists when both options, formal and customary, are accessible, efficient and viable”. High usage of “non-formal justice systems in rural areas does not automatically mean that these systems are the best: it could simply mean that they are the only ones available”. Chopra and Isser (2012:353) contend that many factors “need to be taken into consideration when developing approaches to improve women’s access to justice in legally plural environments”. They note that “legal pluralism is not a passing phenomenon”; indeed, it is becoming more complex in a globalised and capitalist world. Chopra and Isser argue that upholding “women’s rights therefore requires engaging with legal pluralism, rather than seeking its demise”. For Harper et al, 2011:178 the “capacity to make, and act on free informed choice is a fundamental characteristic of a legally empowered person”.
In terms of choice of forum, according to Chopra and Isser (2012:252), traditional justice “systems are neither essentially bad nor good for women. It depends how they are interpreted and applied by various communities and the power dynamics and general inequalities that informs justice processes. Most discriminatory elements are not engrained in a specific justice system, but in asymmetric power relations in society, including those between men and women”. Curran and Bonthuys (2004:6) observe that southern African women “very rarely live exclusively in terms of either ‘traditional’ or ‘modern’ identities”.
According to these authors, legal strategies of women are informed by choice associated with multiple identities (p. 6). Rather than focus on choice of forum, Moult (2005:21) notes that South African women prefer to use multiple structures to curb abusive behaviour by their partners, including mediation and protection orders.
Chopra and Isser (2012:353) argue that talking about dual legal systems does not reflect reality on the ground. The formal and the traditional justice system are not the only justice systems operating in communities; other justice orders include religious legal orders and paralegal movements, to name but a few.
While Chopra and Isser (2012:352) acknowledge that these alternative legal orders do not operate in a clear- cut manner, the formal and the traditional justice systems should not be the only entry point. Discussions on justice systems and the theories governing them should therefore include alternative approaches. This study focuses on alternative approaches administered by CBPs.
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To Stapleton (2007:15) “domestic violence is a real issue in rural areas”. Yet women in rural areas “face unique challenges in gaining access to the traditional justice system”. These difficulties are “compounded by cultural practices that undermine their status such as the issue of inheritance, owning property, cultural beliefs and taboos, all of which make women even more vulnerable” (p. 15). Harper et al (2011:178) point out that “in situations where state justice is inaccessible or otherwise unresponsive to community needs, and where there are impediments to accessing justice through traditional systems, one solution may be the creation of new institutions that offer alternative forms of dispute resolution. Such institutions operate parallel to the traditional justice system, complementing or supplementing it”. The authors suggest that such an institution could be run by trained paralegals. This would increase access to justice for victims discontent with the traditional justice system and the formal justice system (Harper, et al, 2011:179).
Legal pluralism provides an environment for justice forum shopping. In their study based in rural Liberia, Sandefur and Siddiqi (2011:113) used game theory to conceptualise a model of forum choice. These authors explain that game theory plays out where a “dispute resolution is conceived as a dispute between a victim and an offender, a forum shopping decision by the plaintiff, and a verdict and corresponding legal remedy offered through the traditional justice system, formal justice system and an alternative (informal justice) system”. Sandefur and Siddiqi observe that the game theory proceeds sequentially in three distinct stages:
1. “The offender chooses whether to inflict harm on the victim and the harm is conceived broadly as encompassing violent crime and economic losses resulting in a dispute.
2. In response to the harm, the victim chooses whether to take the case to the traditional court or formal court, or neither and considers an alternative available.
3. The presiding officer of the selected justice system offers a legal remedy which is essentially an offer to redistribute resources from the offender to the victim to compensate for the harm caused”
(Sandefur and Siddiqi, 2011:113).
According to Sandefur and Siddiqi (2011: 114), “equilibrium in the game would involve an optimal level of harm by the offender, a forum shopping decision by the victim, and a remedy from the presiding officer. All parties are assumed to have full information about each other’s utility functions and the structure of payoffs.
A fixed cost of reporting to either forum, incurred by the victim, is also assumed”. Sandefur and Siddiqi (2011: 114) contend that the theory is best understood by referring to the similarities and differences between the available justice systems. The first is bias in both systems. In the formal and the traditional justice system the presiding officer may be biased towards the offender or the victim. With the full information assumption, Sandefur and Siddiqi contend that the victim and the offender are aware of each
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justice official’s bias in advance of making a decision to cause harm or choosing a forum to pursue remedies for the harm caused (Sandefur and Siddiqi, 2011: 114).
The second is the remedy at the presiding officer’s disposal. Sandefur and Siddiqi (2011: 114) argue that,
“while the differences between the formal system and the traditional justice system in terms of rights are widely acknowledged, differences in remedies are less commonly discussed”. It is assumed that there are advantages of compensatory over purely punitive remedies. Sandefur and Siddiqi submit that “pure punishment entails a social loss, relative to compensation. Furthermore, traditional courts’ presiding officers have an absolute cost advantage in enforcing redistribution of resources from the offender to the victim through a range of informal remedies that provides compensation to the victim”. Such remedies could include material reparation for the victim; cultural cleansing and an apology. The offender receives the full
“benefit of committing the harm and suffers the full disutility of being penalized by the remedy of both systems. The victim receives the full benefit of the remedy in the customary system, but only a partial benefit in the formal system. Thus, formal remedies cause the offender to suffer more than they console the victim. Punishments meted out to the offenders in the formal system do not fully benefit the victim”.
Sandefur and Siddiqi (2011:116) argue that, by “predicting the remedies that presiding officers or judges will offer, victims choose a forum that maximises their benefits. In turn, offenders predict the victim’s choice and the presiding officer’s or judge’s remedies and choose levels of harm that most benefit them”. The victim compares the cost of reporting and the remedies available from either the presiding officer or judge. In turn,
“the remedy depends on the bias of the presiding officer of the traditional court and the efficiency of the formal remedy”. Sandefur and Siddiqi (2011:116) advance the view that if the presiding officer of the traditional court is pro-offenders, the victims “are more likely to take their case to the formal justice system”.
Yet, while the game theory model of forum shopping relies heavily on bias of presiding officers of traditional courts, Sandefur and Siddiqi (2011:120) acknowledge that there was no attempt made to observe such biases. Rather, the authors “posited that the chief’s bias in a given case will be determined by the characteristics of both the plaintiff and the defendant, reflecting the hegemony of certain social and economic groups”.
Scholars suggest that forum shopping is not necessarily unidirectional (Sandefur and Siddiqi, 2011:117;
Benda-Beckmann; 1981:117). Sandefur and Siddiqi (2011:117) hypothesise that forum officials may compete with each other for plaintiffs. Although these scholars did not wish to take the logic further, the hypothesis is not far fetched. For example, in his study based in West Sumatra, Indonesia, Benda- Beckmann’s (1981:117) study found state and non-state justice officials shopping for disputants in addition
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to disputants choosing among multiple forums in the context of legal pluralism. However, forum officials sought to attract plaintiffs for political reasons, some of which were related to the nature of the dispute.
Returning to the issue of gender, Chopra and Isser (2012:353) point out that forum shopping in a plural justice system may “present an opportunity to contest prevailing social norms and to promote women’s rights”. This is especially true of the traditional justice system that is fluid and depends “on the definition and interpretation of norms by community members and can readily adjust to social change”. The existence of alternative fora for dispute resolution creates multiple legal orders, which according to Chopra and Isser (2012:353), offer women “an opportunity to select the institution that is more likely to facilitate access to justice”. To these authors legal pluralism allows the various justice systems to contest each other and can make women and activist groups “more active in shaping and defining legal norms and processes in order to advance access to justice for women”.
Simojoki (2011:47) points out that in a pluralistic context, “access to justice might best be seen as creating a more even playing field where all users have viable and realistic pathways to suitable outcomes. Viewed in this way, a holistic approach to enhancing access to justice that targets all stakeholder groups and components of the justice system is most likely to yield results”.
The discussion now turns to community engagement as well as use of language as components of legal empowerment.