CHAPTER 5 FRAMING THE FUNCTIONING OF COMMUNITY COURTS IN MAPUTO THROUGH
5.2 A N OVERVIEW OF COMMUNITY COURTS IN M OZAMBIQUE
Mozambique has a heterogeneoussystem of community justice institutions.436 Community- based authorities, such as the regulos,437 secretaries of the neighbourhood and community courts438 are some of the non-state mechanisms of conflict resolution which exist in the country.
Others are represented by police stations, the Office for the Assistance to Children and Family Victims of Domestic Violence (Gabinete de Atendimento à Família e Menores Vítimas de Violência Doméstica, GAFMVV), CSOs, churches, mosques, and legal clinics at universities.439 Mozambique is a social field where more than one legal order exists, and as such it conforms with the definition of legal pluralism given by Griffiths in 1986.440
Community courts, specifically, originate from the popular courts of the localities, villages, and neighbourhoods (Tribunais Populares das Localidade, Aldeias e Bairros) which were
435 The Island of Kayaka was left out due to time constraints and transport difficulties, with no regular boat service. Although it is possible to fly to the island from Maputo, the cost of a return fare is a prohibitive 150 USD, which is equivalent to about 2,000 South African Rands.
436 De Sousa Santos, B. (2006) ‘The Heterogeneous State and Legal Pluralism in Mozambique, Law &
Society Review, 40 (1), pp. 39-75.
437 Meneses, M.P. (2006), pp. 93-120. See also Meneses, M. P. (2009), pp. 9-42. Isaacman, A. (1987)
‘Régulos, diferenciação social e protesto rural. O regime do cultivo forçado do algodão em Moçambique 1938-1961’, Revista Internacional de Estudos Africanos, 6-7, pp. 37-82.
438De Sousa Santos, B. e Trindade J. C. (eds). (2003).
439 Araújo S. (2014) Ecologia de Justiças a Sul e a Norte. Cartografias Comparadas das Justiças Comunitárias em Maputo e Lisboa. Tese de Doutoramento. Universidade de Coimbra.
440 Griffiths, J. (1986), 24.
78 established in 1978.441 Popular courts of the community level were then renamed and legally recognised as community courts through Law 4/1992. Differently from the popular courts of the community level,442 which were part of the judicial system, community courts were left outside the state system. Like the interviews with the judges of the popular courts at the community level,443 the focus group discussions conducted in Maputo showed that community court judges deal with civil and minor criminal cases and base their decisions on the traditions and values of the community in which they operate.
Since 1994, the number of community courts continued to increase, so much so that in 2011 there were as many as 1,688 community courts in the country, operating in the remote rural areas as well as in the bigger cities of Pemba, Quelimane, Beira and Inhambane, among others.444 Between 5,000 and 7,000 judges were working at the community courts in 2011.445 In 2011, only 18 out of a total of 128 districts did not have community courts.446 According to the most recent official data from 2017, there were about 2,500 community courts in the country.447 If this data is still correct, it means that, in a population of about 28 million people, there is just one community court per 11,000 people, as compared to one judge of a judicial court per 80,000 people.448 The numerical gap shows that community courts offer greater access to justice than the judicial courts.
The possibility that community courts serve a larger number of people in need than judicial courts is also supported by the fact that community courts are trusted by the people, and so are highly used by them. In Mozambique, more than 80 per cent of conflicts are resolved through non-state mechanisms of conflict resolution, community courts included.449 The courts are utilised not only by people in rural areas (representing more than 65 per cent of the population) but also by those in the most urbanised centres of the country, especially for issues related to family and community disputes.450 A recent study by UNDP on access to justice in the country states:
There is greater confidence in community courts compared to formal judicial courts, where 70% of respondents consider that [community courts]
are an effective source of conflict resolution at the community level,
441 Sachs, A. and Honwana-Welch, G. (1990). Gundersen, A. (1992) ‘Popular Justice in Mozambique:
Between State Law and Folk Law’, Social & Legal Studies, 1, pp. 257-82.
442 Honwana-Welch, G. (1982) ‘Tribunais de Base ou a Base da Justiça Popular’, Justiça Popular, 5, pp.
4-5.
443 Ibid.
444 See the Centro de Pesquisa e Apoio à Justiça Informal (2013). The study states that in 2011 there were 1,688 community courts in the country. Most of the community courts can be found in the North (43.1%) and Centre (46%) of the country, particularly the northern provinces of Nampula and Cabo Delgado and the central provinces of Tete and Zambezia.
445 Ibid.
446 Ibid.
447 Centro de Formação Jurídica e Judiciária (2017). Maputo.
448 Ordem dos Advogados de Moçambique (2019).
449 Chirayath, L., Sage, C. and Woolcock, M. (2005). Available at: https://bit.ly/3KUTyWF (accessed 13 January 2020).
450 Ibid.
79 probably due to the informal and little bureaucratic mechanisms for
resolving conflicts used by them.451
In addition, in 2020, recognition of the community courts’ work was also noted, at the political level, by the Minister of Justice, Constitutional and Religious Affairs (Ministério da Justiça, Assuntos Constitucionais e Religiosos, MJACR), Helena Kida. In November 2020, during the Coordinator Council of the Ministry, the Minister stressed her support, in the five years to come, of community courts and other non-state mechanisms of conflict resolution as means of promoting justice.452 Since 2001, in fact, community courts have been placed under the responsibility of the MJACR, specifically under the Justice Provincial Directorates (Direcção Provincial da Justiça, DPJ),453 which is responsible for ensuring courts’ installation, operation and registration.
This overview of community courts highlights six practical opportunities for them to enhance criminal justice: (1.) the existence, in practice, of legal pluralism in both the civil and criminal fields; (2.) the regular increase in community courts; (3.) the higher ratio of community courts to the population than of state judges to the population; (4.) extensive use of community courts by the people; (5.) the public’s trust and confidence in community courts; and (6.) political recognition of community courts by political representatives.454
This information can be set against the bigger picture of the criminal justice system in the country. As noted in Chapter 4, the state criminal justice system faces many challenges. It is unable to provide access to justice that, by considering the socio-economic characteristics of the population, responds to its particular needs.455 Imprisonment is overused and the illegality and arbitrariness of those who enforce the law is a systemic concern.456 The first part of Chapter 4 showed that the state system incarcerates the most vulnerable people in society without addressing the causes of crime or the question of re-education and rehabilitation.457 There are many reasons for these limitations: the simple incapacity of the state in terms of the available number of judiciary and justice officials, a heavily bureaucratic criminal justice system that affects the time in which justice is served, and the fact that accessing state justice is expensive, among other causes.458
451 United Nations Development Programme (2021) Estudo de Base sobre o Acesso dos Cidadãos aos Serviços de Justiça em Moçambique. Draft version, p.15.
452 Anon (2020) ‘Ministra da Justiça defende reforma legal para promoção da cidadania e paz’, Jornal Notícias, 30 November.
453 The DPAJ was created under subparagraph a) of paragraph 2 of article 2 the Organic Statute of the Ministry of Justice, published by Ministerial Decree 68/97 and under Resolution 6/2001. The
Provincial Department of Justice (DPAJ) is headed by the Provincial Director and works with the following departments: Department of Notary Registries and Religious Affairs; Legal Aid Department;
Department of Prisons; Division of Administration and Finance and Division of Human Resources.
One of the functions of the first department is to provide for the installation, operation, and registration of the community courts. Created in 1997, the DPAJ began operating in 2011. For further information, see https://www.pmaputo.gov.mz/por/Documentos/Legislacao (accessed 11 July 2020).
454 De Sousa Santos, B. e Trindade J. C. (eds). (2003); De Sousa Santos, B. (2006), pp. 39-75;
Meneses, M.P. (2006), pp. 93-120. See also Meneses, M. P. (2009), pp. 9-42. Isaacman, A. (1987), pp.
37-82. Araújo S. (2014).
455 See the analysis in the first ten pages of Chapter 4.
456 Ibid.
457 Ibid.
458 Ibid.
80 There is a struggle for criminal justice in the country mainly due to the Eurocentric approach that the state has taken historically to justice. To challenge this view, a shift is needed, and it has four points of departure: ‘learn that the South exists; learn to go South; learn from the South and with the South’.459 De Sousa Santos calls the shift the Epistemology of the South, and this chapter aims to show that a possibility for improving the criminal justice system in Mozambique does exist and that it lies here in Mozambique. For the sake of this chapter, in fact, the South will be represented by community courts as local knowledges. Community courts exist, they come from the past, and the next pages will show what the state should learn from them and better apply local knowledge to criminal justice.