CHAPTER 5 FRAMING THE FUNCTIONING OF COMMUNITY COURTS IN MAPUTO THROUGH
5.4 T HE FUNCTIONING OF COMMUNITY COURTS IN M APUTO
5.4.4 The profile of community court judges
88 even for the health of the professionals who work in them) and which even
do not have electricity, running water, equipment or sufficient furniture.507
Analysis of the community courts’ workplaces will be enriched by an assessment of the profile of the judges and how they came to be appointed as judges.
89 discrimination and will favour women victims more often than male judges.515 They support cases involving child support and property settlement on divorce and are likely to rule against males in family law cases.516 These findings are consistent with the literature by international organisations such as the International Development Law Organization (IDLO).517 In a study of community courts in Eritrea, for example, Andemariam says:
The presence of women in community courts is of paramount importance both to women litigants and to women living in various communities. First, it strengthens the Government’s policy to ensure access to all offices and occupations on a gender-equal basis. Second, arguably the presence of a woman in a community court gives a woman litigant an advantage because the woman judge may be more understanding to women-specific issues, such as child maintenance, than her male colleagues. Finally, the presence of a woman judge in the community court may encourage women litigants to bring their cases before the court, especially in a society where women have been traditionally barred from accessing justice directly.518
The literature above shows that more female representation among judges is important, especially for gender-related cases. Considering that issues such as domestic violence are matters dealt with at the community court level, the presence of more female judges in the courts would strengthen the way the latter deal with such cases by considering the existing dynamics between men and women in a case.
The ages of the 156 community court judges included one who was between 20 and 30 years old; 48 who were between 31 and 50; 81 who were between 51 and 70; and 26 who were above the age of 70 years. More than half of the judges were older than 50 years, having begun work as judges between 1978 and 1992. It was found that their age and the duration of their mandate as judges in the area contributed to the respect they enjoyed from the residents they presided over. Judges gain power519 and supremacy in their neighbourhoods and are well known by their communities. A judge said:
I have been living in the community where I work as a judge for more than 20 years and I know my people and their problems and this is important
515 Allen, D. and Wall, D. (1993) ‘Role orientations and women state supreme court justices’,
Judicature, 77, pp. 156-165. Martin, E. (1993) ‘The representative role of women judges’, Judicature, 77, pp. 166-173. Peresie, L. J. (2005) ‘Female Judges Matter: Gender and Collegial Decision Making in the Federal Appellate Courts’, Yale Law Journal, 114, pp. 1759-1778. Kenney, S. (2012) Gender and Justice: Why Women in the Judiciary Really Matter. Routledge.
516 Ibid.
517 Ubink, J. and Mclnerney, T. (2011).
518 Andemariam, S.W. (2011) ‘Ensuring Access to Justice through Community Courts in Eritrea’, in Ubink, J. and Mclnerney, T. (2011), p. 122.
519While it is acknowledged in Chapter I, as a limitation, that the thesis does not focus on recipients of court hearings or judgments, research shows that non-state mechanisms of conflict resolution can exercise power over the beneficiaries of the decisions. Community court judges, for example, may make a decision influenced by a more powerful party. The sentence may appear consensual, but in fact result from coercion. See, for example, Abel, R. L. (1982) The Politics of Informal Justice. New York:
Academic Press.
90 because when they come to us, I can already imagine what is the problem
and the causes because I know the situation.520
The existence of judges who serve in the same community as where they live is a positive practical opportunity for people’s effective access to justice because such judges are aware of and understand the problems of their communities. They are often familiar with the causes of the conflicts and can see the best solution for the cases placed before them, as is demonstrated below in the discussion about how judges decide their cases.
The judges work on a voluntary basis and receive no subsidy from the state for their involvement in the community courts. When asked why they were willing to work for no pay, one judge explained: ‘I have been doing a good job for the maintenance of the peace and social harmony of the communities and their population. They need us, and I am not doing this for money.’521 While many of the judges were formally retired, others still worked elsewhere.522 The professional status of 68 of the judges is identified in the graph below.
Figure 1: Professional activities of 68 community court judges in Maputo523
While 45 community court judges earned a separate salary,524 for 14 of the retired judges and eight of the unemployed judges the only household income came from the fee the court charges for opening a case, which comprises a sum of 400 Meticals.525 Two hundred Meticals are paid by the plaintiff at the opening of the case, while the defendant pays 200 Meticals on his or her first court appearance. This sum is then divided between the five to eight judges comprising the court.
Over the years, community courts judges requested (through their commission) that the Ministry of Justice, Constitutional and Religious Affairs provide a regular subsidy for their work. In the focus group discussions, the judges said they envisaged a subsidy similar to that
520 Interviewee 013(E).
521 Interviewee 001(C).
522 Considering that community courts operate once or twice a week, the fact that judges were working elsewhere did not affect their productivity at the courts.
523 The figure is the author’s creation.
524 About one-third of those who were part of the group discussions.
525 For comparison and considering an exchange rate of 5.8 (August 2021), 400 Mozambican Meticals is equivalent to 93 South African Rands.
91 received by traditional authorities (such as regulos, for example) and community leaders (such as the secretaries of the neighbourhood). In fact (through Decree 15/2000 and Decree 11/2005), regulos and the secretaries of the neighbourhood receive both a monthly subsidy and their own uniforms and/or badges.526 This request has yet to receive a response from the Ministry.
In addition, in 2012, to better structure the financial situation of the judges, the commission opened a revenue bank account, where judges would regularly deposit the money collected from case fees. The judges explained that, at the end of the year, the amount deposited by the courts is distributed equally among the judges. One judge added:
Not all courts are paying the amounts received by the fees of the cases, especially the judges of courts that open a great number of cases. These judges prefer to distribute the fees of the parties involved among themselves immediately, rather than depositing them in the bank account.527
These bank accounts are managed by the President of the Commission and another commission member (and not by an outside authority). There is also no oversight of either the number of cases or whether that number corresponds to the amounts deposited. The courts independently decide how to use the bank account.
The revision of Law 4/1992 would address problems related to the use of the bank account and the distribution of fees. The revision could provide that fees be paid into a specific bank account managed by the Ministry of Justice, Constitutional and Religious Affairs. The Ministry could then use the collected revenue to pay all community court judges a regular and fixed subsidy that would be established by law.
At least one commentator, Campos, remains cautious about the possibility of direct state support for community court judges. Such support would ‘take away from the community authorities their autonomy as representatives of segments of Mozambican society and transform them into agents of the State […] open[ing] up a process of party co-optation’.528 While this same concern can be extended to judicial judges (as they receive a salary from the state budget),529 only when the process of democratisation of the country is complete will it wither away. Only when the state and the ruling party are in practice two distinct entities (and when different political parties are able to participate actively in the life of the country) will the payment of a subsidy to judges be considered a benefit rather than an obstacle to improving access to justice in the country.
526 Note that this is a similar situation that occurred during Portuguese colonisation. In focus group discussion 012, respondent A said that the subsidy of the secretaries of the neighbourhood was about 4,000 Meticals per month (for comparison and considering an exchange rate of 5.8 in August 2021, 4,000 Mozambican Meticals is equivalent to 689 South African Rands). See also De Sousa Santos, B. e Trindade J. C. (eds). (2003).
527 Interviewee 012(A).
528 Campos, L.M. (2018) ‘O AUXILIO ADMINISTRATIVO DAS AUTORIDADES TRADICIONAIS NA ADMINISTRAÇÃO PÚBLICA LOCAL EM MOÇAMBIQUE: UMA HERANÇA DO ESTADO COLONIAL’, História e Cultura, 7 (1), p. 326.
529 Article 50 of Law 7/2009 (Statute of Judicial Magistrates) states: ‘1. The State guarantees the economic independence of judicial magistrates, through remuneration adequate to the dignity of their functions. 2. The remuneration regime referred to in the previous number is established by legal diploma, taking into account the specificity of the judicial function, the category and length of service provided by the magistrate’.
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