CHAPTER 5 FRAMING THE FUNCTIONING OF COMMUNITY COURTS IN MAPUTO THROUGH
5.4 T HE FUNCTIONING OF COMMUNITY COURTS IN M APUTO
5.4.7 Proceedings of a case opened at a community court
97 In addition, in Mozambique, provisional findings of a research project by REFORMAR (on the impact of gender dynamics in judicial sentences) raise many concerns about the knowledge and sensitivity of state judges for dealing with gender issues, particularly in cases of domestic homicide perpetrated by women.575 This research (conducted in Maputo) found, for instance, that judges are sentencing women who killed their husbands, ex-husbands, partners, or ex- partners with prison sentences of between 20 and 24 years despite years of documented abuse, similar to cases where gender dynamics did not apply.576
The above analysis shows some of the challenges faced by the state criminal justice system in dealing with cases of domestic violence and theft. It also illustrates how community courts could be more effective in dealing with these cases than the criminal justice response. The following section examines court proceedings, the language used in community courts, the duration of cases, the judges’ decisions, and the penalties imposed.
98 on local political representatives was a recurring element, also in relation to the opening of a case at community level.
Araújo has analysed how the several types of community justice in Mozambique are selectively used by the citizens, based on degree of accessibility, expectations, and problems to resolve.581 Cooperation or competition can apply.582 Interviews with representatives of CSOs confirmed that these kinds of relationships are at work in non-state mechanisms of conflict resolution. An interview with representatives of the Human Rights League (LDH) found that people use the organisation to resolve cases which have been reported originally to other CSOs and/or community courts but where one of the parties was dissatisfied with the decision taken by them.583 Cooperation among different non-state forms of conflict resolution represents a positive opportunity for criminal justice: the more cases resolved at community level, the less cases reach the state criminal justice system and eventually prison. The prison system will therefore admit less people and the state will have a better chance of reducing overcrowding and improving the condition of prisons.
Court proceedings are similar across all community courts. As one judge explained, [o]nce a plaintiff opens a case at the community court, a form is filled in with his or her personal information, the defendant’s information and the fact/s that generated the conflict. Once this form is filled and signed, the court gives the plaintiff a notification that he or she will give to the Chief of the Block where the defendant lives. The notification serves to inform the defendant to appear before the court in a quite short period of time, between a few days and one week, after the opening of the case. At the opening of the case, the plaintiff pays the amount of 200 Meticals584 as fees to the court. At the first hearing, if both parties are attending the case, the president of the court asks them to enter the room. Identification documents are asked to ascertain their identity. The defendant is then asked to show his or her notification and the plaintiff is consequently asked to explain the matter of the case, followed by the defendant’s explanation. Thereafter, the judges ask questions about matters related to the case. One of the judges, never the president, acts as a clerk to keep notes of the declarations of the parties. After their declarations, the parties are asked to leave the room. The judges decide about the case immediately or in a few days from the first hearing. If the case requires much information, they usually ask the parties to go back home and discuss the conflict with their families and or community, if needed. They do also make visits to the families and/or communities when necessary, to better comprehend the situation they have been asked to solve. The timeframe for the second hearing can be extended to a maximum of three weeks. The process can last, in total, between one
581 Araújo S. (2014).
582 Ibid.
583 Interviewee 22. The LDH has been dormant since 2015 due to financial problems. However, it could mediate cases or bring them to court. In 2013, for example, 236 counsellings were given; 79 cases were solved with mediation; and 241 entered into judicial courts. Cases opened at the LDH could concern a variety of matters: labour, civil, criminal (mainly domestic violence), housing, human rights violation, land and child maintenance.
584 For comparison and considering an exchange rate of 5.8 (August 2021), 200 Meticals is equivalent to 46.51 South African Rands.
99 and three weeks. In cases where the parties do not appear before the court,
the process is annulled after a month.585
The process above is similar for both civil and criminal cases, though the forms used to record information about the cases differ from one court to another. Some judges displayed written forms in which the declaration of the parties was recorded, but in the majority of the courts, orality prevailed, and the information was not recorded. This difference depended on various factors, but mainly on whether the court was provided with recording material (as basic as paper and pens) by the Ministry of Justice, Constitutional and Religious Affairs, and whether the judges could write in Portuguese. In the cases where forms were written, they were not always complete. A judge explained this while showing some completed forms:
We write down the most important information such as the declarations and the sentence. Most of the time, in fact, the judge taking notes is very slow and he does not manage to capture all the information that is said. But we make sure that, at least, the most important one is there.586
The information that was gathered reveals in detail how, in comparison with the judicial courts, community courts can be simplified mechanisms of conflict resolution. State criminal justice systems are known worldwide to be highly bureaucratic in nature.587 Raharjo notes that ‘[f]rom the first time the case goes to court, then to the penitentiary, with its peak in court proceedings
… the involvement of actors (human/law enforcement) and bureaucracy/procedure is very high’.588
In Mozambique, Pedroso and José have shown how much time can pass between the lodging of a complaint and the case trial, namely anything from a few months to several years.589 With summary cases, which, according to the law, have to be dealt with in no more than eight days from the commission of the crime and where the law does not provide for pre-trial detention, it is common to see people in pre-trial detention for over a year without having had their case resolved.590 Pedroso and José argue that the main causes of the problems in the legal system are a legal culture based on norms alien to its society with a highly complex and bureaucratised structure that allows no deviation from rigid rules.591 Instead, the simplified characteristics of community courts offer positive opportunities for improving people’s access to criminal justice.
These characteristics are described below.
585 Interviewee 012(A).
586 Interviewee 011(A).
587 Horder, J. (2014) ‘Bureaucratic “criminal” law: too much of a bad thing?’, in Duff, R. A., Farmer, L., Marshall, S. E., Renzo, M. and Tadros, V. (eds.) Criminalization: The Political Morality of the Criminal Law. Oxford University Press USA, New York, NY, pp. 101-131. Nardulli, P. F., Flemming, R. B. and Eisenstein, J. (1985) ‘Criminal courts and bureaucratic justice: Concessions and consensus in the guilty plea process’, Criminology, 76, pp.1103-1131.
588 Raharjo, A. (2017) ‘Bureaucracy in Criminal Justice. A Study of Criminogenic Factors in Law Enforcement on Narcotics Crime Settlement’, Advances in Economics, Business and Management Research, 43, pp.6-10.
589 Pedroso, J., Trindade, J.C., José, C.A. e De Sousa Santos, B. (2003) ‘Caracterização do desempenho dos tribunais: um roteiro dos bloqueios do Sistema judicial’, in De Sousa Santos, B. e Trindade, J. C.
(eds). (2003), pp. 519-612.
590 Ordem dos Advogados de Moçambique (2019).
591 Pedroso, J. et al. (2003), p. 562.
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