CHAPTER 4 THE STATE’S APPROACH TO NON-STATE FORMS OF CONFLICT RESOLUTION IN CRIMINAL
4.4 T HE STATE ’ S CURRENT APPROACH TO LEGAL PLURALISM IN CRIMINAL JUSTICE
67 at the administrative local level, as well as conflicts decision and matters related to the use of land.401 As in the colonial era, traditional authorities made their official appearance as agents to assist in the ruling party’s political control over the vast territory of the country.402
In 1992, the practice of popular justice was officially abandoned. Law 10/1992 redivided the judicial structure of the country into three: District and Provincial levels, and the Supreme Court in Maputo.403 Specialised courts were created to adjudicate particular matters, among them Labour Courts (Law 18/1992) and the Juvenile Court of the City of Maputo (Law Decree 40/1993). The Popular Courts of the community level were removed from the judicial pyramid and renamed community courts (Tribunais Comunitários),404 thus placing them outside the official judicial structure. The comprehensive functioning of community courts will be analysed in Chapter 5. It is important, however, to note that while such courts kept the main characteristics of the popular courts of the communitarian level (competence to judge petty civil and criminal offences, to apply traditions and customs, and with no imprisonment provided), their decisions have not been legally enforceable since 1992. As a result, judges working within the judicial courts do not consider decisions by community courts.
From the standpoint of legal pluralism, the state approach to criminal matters was stronger than that held in relation to popular justice. Community courts are left to decide on cases, still applying traditions and customs and avoiding imprisonment. There was no distinction between the approach of the state to civil and criminal matters. It is not known just how much this approach helped people access justice and avoid arrest and incarceration. In any case, this approach was soon going to weaken again. The following section will show how the current approach of the state to legal pluralism as applied to criminal matters is similar to the one that held sway during the colonial era.
68 Constitution recognises the right of equality, while access to a court is provided for by article 36. Article 212(3) of the Constitution spells out that the law may establish institutional and procedural mechanisms for linking judicial courts to other fora whose purpose is the settlement of interests and resolution of disputes.406 The combination of articles 4 and 212(3) in effect recognises other rights such as a person’s possibility of using other fora for conflict resolution that are linked to the formal justice system. At the same time, though, the repugnancy clause represents the assertion of a rigid model of state legality.407 Although far from the discriminatory principles at work in the colonial period, the repugnancy clause came to assert the control of the state over the application of traditions and customs as in the colonial period.
In addition, article 118 of the Constitution specifically supports those traditional authorities that are legitimised by the population and follow customary law, defining their relationship with other institutions. Just before the 2004 Constitution, however, Mozambique provided a framework to institutionalise the traditional authorities. Law 15/2000 recognised rural traditional authorities such as the regulos and neighbourhood secretaries (secretários dos bairros) as local organs of the state.408 More than 2,000 authorities were recognised with different ranges of powers from key state-administrative and security duties, including policing, taxation, population registration, justice enforcement, land allocation and rural and urban development.409 Since then, local officials wear a uniform and display other symbols of the state, and have the right to retain a percentage of tax return revenue collected from the people.
That these are similar characteristics that colonial traditional authorities employed during the colonial era shows how weak the implementation and intervention capacity of the state remains in much of the country, especially in rural areas.410
In 2007, Law 24/2007 was enacted with the aim of reforming the content of Law 10/1992 on judiciary organisation. It stresses the importance of community courts for the dynamism of the social and economic life of the country. Article 5 of the new law stipulates that ‘[c]ommunity 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’.
Article 6 of the same law states that law regulates the relationship between community courts and other mechanisms of conflict resolutions.However, while the provisions of all these laws lay out the relevant principles on the functioning of community courts on paper, they have never been regulated in detail and in practice are never used.411 On criminal matters, the regulation of community court functioning could have created the foundation from which challenging pressing issues such as access to justice and ultimately the condition of prisons could be addressed. The identification of the criminal offences that community courts would
406 Ibid.
407 Morais, B. A. (2020).
408 In addition, in 2003, Law 8/2003 of the Local Organs of the State (Lei Órgãos Locais do Estado) and its regulation, Law Decree 11/2005, were enacted. Among these organs, traditional authorities are also mentioned.
409 Buur, L. and Kyed, H.M. (2005) State Recognition of Traditional Authority in Mozambique. The Nexus of Community Representation and State Assistance. Nordiska Afrikainstitutet: Uppsala.
Available at: https://www.files.ethz.ch/isn/96053/28.pdf (accessed 24 January 2021).
410 Morais, B. A. (2020).
411 See information available at: https://bit.ly/3g9RGev (accessed 28 January 2021).
69 have competence in would have strengthened their role in combating petty crimes committed in the neighbourhoods where courts operate.
Since 2001, community courts have been formally placed under the Justice Provincial Directorates (these are responsible for ensuring the installation, operation and registration of the courts). In practice, though, they have little support from the government.412 In this way, the state effectively delegitimises community courts from the top down.413
With particular reference to criminal matters, article 2 of the Mozambican Criminal Code enacted through Law 35/2014 and entered into force in July 2015 states that community courts have no more jurisdiction in criminal matters, and assigns them only the competence to deal with petty civil offences. The decision becomes problematic for the recognition of customary criminal law. Through this provision, the Mozambican state showed its monopoly in deciding on criminal cases, though recognising that civil cases can continue to be solved by the people through non-state justice instances. As in the colonial period, the state approach to customary criminal law was cautious, as it is seen as dangerous to leave community courts to deal with criminal cases, even slight ones.
Since 2000, both international scholarly research and reports from CSOs have argued that community courts violate human rights. In 2008, a report of a consortium of national CSOs submitted to the Human Rights Committee under the Mozambican revision for the International Covenant on Civil and Political Rights states that ‘the Community Tribunals frequently violate the right to physical and moral integrity, subject people to cruel, degrading treatment and discriminate against women’.414 The discriminatory treatment of women is also shown by Corradi in a 2011 work published on access to justice in the northern city of Pemba. This looks at women and community courts: ‘A case in point is the treatment of domestic violence, where community court judges were reported as requesting the husband to refrain from mistreating his wife while asking the wife to obey her husband’.415 Community courts have also been subject to criticism in relation to land and inheritance rights by the FAO416 and to children’s rights by Save the Children.417
Responding to such constant international pressure on community courts, the legislator decided (in the 2014 Criminal Code) to shrink the competences of community courts down to civil cases (yet not dealing with criticisms that have affected the civil jurisdiction over the years).418 There are different reasons for the state to limit the community courts’ competence on criminal matters. As in the colonial period, the state has wanted to make clear its monopoly on criminal matters as the only creator of normative orders related to criminal justice and the enforcement of such orders.
412 Resolution 6/2001 defines the structure and functions of the Statute of the Justice Provincial Directorates. Within the different departments of which the Justice Provincial Directorates is composed, the Department of Registries and Notaries is competent for dealing with the community courts matters.
413 Morais, B. A. (2020).
414Information available at: https://bit.ly/3HvAzA9 (accessed 23 January 2021).
415 Information available at: https://bit.ly/3od8A0m (accessed 23 January 2021).
416 Information available at: http://www.fao.org/3/al131e/al131e01.pdf (accessed 19 January 2021).
417 Information available at: https://resourcecentre.savethechildren.net/node/6463/pdf/6463.pdf (accessed 19 January 2021).
418 The preamble of the 2014 Penal Code revoked the criminal jurisdiction of community courts.
70 The Eurocentric approach of the state towards criminal justice can be seen in the legal education available in law faculties and at the Judicial Training Centre (Centro de Formação Jurídica e Judicial, CFJJ) for those who want to become judges or prosecutors. At the Law Faculty of the public University Eduardo Mondlane, the curricula focus on the positivist approach to law. This is taught – as in colonial times – as at least prioritising state law. Only the state law (in the written norms of the codes) represents the law in the curricula of the law faculties. Courses on legal pluralism do not form part of the curriculum, not even in the form of short modules. It is the same with the law faculties at the private universities in the country.419 Students do not engage with matters related to legal pluralism in their courses, while their attendance at the annual conferences on legal pluralism is sparse.
Law students thus generally graduate from the faculty with no exposure to legal pluralism. If they become aware of the existence of other normative systems outside state law, it is because of their individual experience at home. If they grew up on the outskirts of the capital, or come from other parts of the country, they may well have engaged with community courts (for example, for family reasons). However, any such private experience with these mechanisms remains incomplete if it is not complemented by the study of concepts of legal pluralism that would enable a student to think critically about the topic.
The Legal and Judicial Training Centre of Maputo trains judges and other actors in the system, such as prosecutors and legal aid officers. The curriculum of the centre included, in the past, a theoretical and practical exercise on legal pluralism. In an interview, a former director (2000- 2007) of the Legal and Judicial Training Centre explained that students were introduced to the importance of mechanisms of conflict resolution other than those provided by the state justice system; the aim was also to foster relationships with community courts judges. However, the former Director revealed, this component of the course gradually shrank, and there are currently few activities around non-state mechanisms of conflict resolution or opportunities to form relationships with members of the judicial apparatus.420
The civil servants who work in the Ministry of Justice, Constitutional and Religious Affairs (Ministério da Justiça, Assuntos Constitucionais e Religiosos) also tend to have a Eurocentric approach to criminal justice. In an interview conducted at the Ministry of Justice, Constitutional and Religious Affairs, a public official admitted,‘We are all very legalistic’, referring here to the approach of the Ministry of Justice to criminal justice. After hearing the reason for this dissertation, the official responded to the need to look at the role of community courts in order address problems affecting access to criminal justice and conditions in prisons:
[This is a] very bold proposal that will perhaps get people thinking, but the way we think about this is that the state is the only one with the power on criminal matters. Remember, nullum crimen, nulla poena, sine lege.421
The Latin expression means that no person can face criminal punishment except for an act which is criminalised by law before the commission of the act. It also served as a reminder that
419 See the law faculties of the following universities: Universidade Católica da Beira and Universidade Técnica de Moçambique.
420 In 2019, the CFJJ introduced compulsory practical training or internship at the institution (estagio de imersão e estágio intercalar), along with visits to different institutions including community courts.
421 Interview with the civil servant responsible for community courts at the Ministry of Justice, Constitutional and Religious Affairs, January 2017.
71 penal legal information shall be published in writing in a legal text. Both elements represent a Eurocentric view of justice.
The revised Criminal Code, Law 24/2019,422 which entered into force in December 2020, replaced the community court criminal jurisdiction that had been revoked through the 2014 Penal Code. In an informal interview, however, a civil servant mentioned that a new law on community courts is undergoing preparation and the current proposal excludes criminal jurisdiction from the competence of the community courts. If such a proposal is accepted in parliament, the state will state its monopoly over criminal matters (ignoring the major problems that have plagued the sector for decades). This is the most recent development on community courts, which concludes the analysis on the state approach to non-state mechanisms as applied to criminal justice. made in these pages. The next section will examine a range of differences and similarities that highlight how the past continues to shape the present.