CHAPTER 5 FRAMING THE FUNCTIONING OF COMMUNITY COURTS IN MAPUTO THROUGH
5.3 C OMMUNITY COURTS ’ LEGAL FRAMEWORK
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.
81 flexibility and informality, will fade away to fit into the new state context, one that is represented rather by rigidity and formality.465
In 2004, community courts, as non-state mechanisms of conflict resolution, gained constitutional recognition. Article 4 of the 2004 Constitution recognises the possibility for citizens to resort to different mechanisms of conflict resolution, as long as they respect the values of the Constitution. Five years later, in 2007, article 5 of Law 24/2007 (which reformed the formal judicial organisation)466 stressed the important contribution of community courts to the dynamism of the social and economic life of the country. The article states that
community courts are non-judicial mechanisms of conflict resolution; they are independent, informal, judge according to common sense and fairness, privilege orality, and consider the existing social and cultural values of Mozambican society while respecting the Constitution.
The constitutional recognition of legal pluralism can be seen, through a first approach, as the greatest recognition that legal pluralism has obtained in any country. Concerns, however, immediately emerge regarding the respect that non-judicial mechanisms of conflict resolution have towards the Constitution, better known as the repugnancy clause. The current clause differs from the colonial one of 1951, which was discriminatory in principle,467 and although some literature affirms that repugnancy clauses today represent a balance between society and the state,468 legal pluralism and postcolonial studies agree that repugnancy clauses are the assertion of a rigid model of state legality in which Western-trained personnel impose conformity to a Western style of justice.469 A Western-trained public servant, in fact, will apply a Eurocentric approach to justice, ignoring a priori the importance of local knowledge. Against this, the constitutional recognition of legal pluralism could become an opportunity for criminal justice by enriching its practices. A legal pluralist with postcolonial views on criminal justice could pay real attention to non-state mechanisms of conflict resolution, recognising and accepting how important local knowledge is. While the repugnancy clause will always be controversial, article 5 of Law 24/2007 went further in this regard, eliminating some doubts and stating how community courts can consider local knowledge while respecting the constitution. Legal pluralist academics entertain the hope ‘of not seeing legal pluralism and the democratisation of access to justice result[ing] in a mere constitutional fetish’.470
In June 2015 the new Mozambican Penal Code entered into force. It revoked n. 2 of article 3 of Law 4/1992, according to which community courts could deal with minor criminal offences.471 The revocation restricted the scope of action of the community court to civil cases,
465 Ibid.
466 Law 24/2007 replaced Law 10/1992.
467 See article 138 of the Constitution of the 1951 Portuguese Republic.
468 Igwe, O. W. and Ogolo, M. D. (2017), pp. 35-39. Available at: https://ssrn.com/abstract=2528497 (accessed 16 October 2018). Uweru, B.C. (2008), pp. 286-295. Taiwo, E. A. (2009), pp. 89-115.
469 See the definition of weak legal pluralism in Griffiths, J. (1986), p.1. With specific reference to postcolonial gender studies, see Amede Obiora, L. (1995) ‘New Skin, Old Wine: (En)gaging Nationalism, Traditionalism, and Gender Relations’, Indiana Law Review, 28 (3), pp. 575- 599.
470 José, A.C. (2016), p. 31.
471 Article 3(2) Law 4/1992 (Competence) 2. Community courts have also the competence to rule on minor offences that are not subject to custodial sentences and to which applying measures such as a) public reprimand; b) community service for a period not more than thirty days: c) fine whose value does not exceed 10000.00 MT; d) deprivation, for a period not exceeding thirty days, of the exercise of
82 and the legislator established the state monopoly over criminal cases in the country. The limitation to civil cases represented a legal obstacle for criminal justice, but in December 2020, the revised Penal Code restored community courts’ jurisdiction over petty criminal matters.
The restoration of the criminal jurisdiction in the hands of community courts presents an important opportunity to enable local communities to deal with minor offences and not rely on the state criminal justice system, one which frequently results in extensive pre-trial detention and other adverse consequences. Law 4/1992, however, states that community courts can deal with minor criminal offences that do not involve imprisonment.472 Consequently, this positive opportunity can become a legal obstacle if some legal remedies are not applied. A legal remedy can, for example, develop from the revision of Law 4/1992 which is currently in progress at the Ministry of Justice, Constitutional and Religious Affairs. Allowing community courts to have jurisdiction on petty criminal cases that are punished by imprisonment, such as theft, assault, simple domestic violence, cannabis cultivation and trafficking small quantities of drugs473 will be in line with the norms of the new Penal Code474 that provides for the application of alternatives to imprisonment in the country. In fact, provided that the defendant is a primary offender, and that he or she returns the stolen goods and/or repairs the caused damage, the state judge should prioritise the application of an alternative to prison rather than impose a term of imprisonment of up to three years.475
In an interview with one prosecutor, he indicated concern about whether a community court judge would know whether the accused was a primary offender or not.476 While this is a valid concern, research shows that identifying repeat offenders is also difficult for state judges.477 During the 2014 research on children in conflict with the law, one state judge said:
Given the precariousness of the criminal record system, it is quite difficult, sometimes even impossible, to verify the situation and criminal background of the defendants, thus leaving the doubt as to whether someone is a primary or repeat offender. Some repeat offenders are identified by a judicial official who casually recognise them, when they are not the ones to reveal, consciously or unconsciously, that they already have a criminal record.478
While an effective centralised criminal record system should be established to improve the exchange of information on criminal records, access to such information should be given to state judges and prosecutors as well as to community court judges.
the right whose immoderate use originated the offense; e) compensation for damages caused by the offense, to be applied independently or accompanied by any of the others.
472 N. 2 of article 3 Law 4/1992.
473 On the treatment of drug cultivation, use and trafficking, see Law 3/1997. Article 34 of Law 3/1997, for example, punishes the cultivation of cannabis with imprisonment up to one year.
474 Article 67 Penal Code (Prevalence of non-custodial sentences) 1. Considering the individual treatment of a sentence, non-custodial sentences are privileged, with emphasis on re-socialisation.
Whenever possible, the offender shall be freed, monitored by the State and the community. 2.
Deprivation of liberty shall occur or be maintained when, through the application of or non-custodial sentences, it is not possible to prevent the future practice of crimes by the offender or guarantee the protection of legal assets.
475 Article 68 Penal Code.
476 Interviewee 12.
477 Procuradoria-Geral da República (2018).
478 Ibid. p. 77.
83 A closed list of specific crimes, then, chosen among those punishable by up to three years imprisonment,479 could be inserted into the new law to increase the competences of the courts on criminal matters. A team composed of jurists and sociologists with a background in legal pluralism and postcolonial studies and knowledgeable on alternatives to imprisonment could be established to analyse the specific criminal offences to be inserted in such a list.
Broadening community courts’ competences to include, for example, theft, assault, simple domestic violence, and cannabis cultivation, would mean less cases going through the criminal justice system and more cases dealt with at the community level. This would also result in more people serving non-custodial sentences and less people entering the prisons and contributing to (and suffering from) problems such as overcrowding and its consequences. While pressure should be applied, at the political level, to increase the competences of community courts, the provision of the law that provides for the criminal jurisdiction represents a valuable opportunity for the criminal justice system to improve people’s access to justice and ultimately the condition of the prisons.