Given this background, the dissertation examines the limitations of legal pluralism and how the past has shaped and continues to shape the specific relationship of the state with community courts in relation to criminal law. A shift is now needed in the prevailing attitude of the state towards community courts in relation to criminal law – a move away from the Eurocentric discourse and towards the recognition, in practice, of local knowledge.
INTRODUCTION
- B ACKGROUND AND RATIONALE FOR THE STUDY
- R ESEARCH QUESTIONS
- C ONTRIBUTION OF THE STUDY
- D EFINITION OF CONCEPTS
- L IMITATIONS OF THE STUDY
- T HESIS OUTLINE
How the past has shaped and continues to shape the relationship between the Mozambican state and non-state criminal justice conflict resolution mechanisms. This study shows how in Maputo, despite a Eurocentric approach to justice, non-state dispute resolution mechanisms such as community courts are working to improve access to criminal justice in ways that will eventually ameliorate some of the many problems in the prison system.
RESEARCH METHODOLOGY
- I NTRODUCTION
- R ESEARCH METHODOLOGY
- A qualitative exploratory study
- R ATIONALE FOR SELECTING M APUTO AS A CASE STUDY
- R ESEARCH METHODS
- Introduction
- Focus group discussions with judges of community courts
- Access to case files and empirical observation of court hearings
- Individual interviews with other stakeholders
- R ESEARCH ETHICS
- Participants’ benefits
- C ONCLUDING REMARKS
The first phase of the study consisted of three months of research in Portugal (May to July 2013). Finally, interviews were held with representatives of the United Nations Development Program (Programa de Desenvolvimento das Nações Unidas, UNDP), the United Nations Children's Fund (UNICEF) and the Danish Development Program (DANIDA).
CRIMINAL JUSTICE: THE LIMITS OF LEGAL PLURALISM AND THE POSSIBILITIES OF
I NTRODUCTION
S ITUATING THE LIMITS OF THE DOMINANT DISCOURSE ON LEGAL PLURALISM
- Limits of the Mozambican literature on legal pluralism in criminal justice
The scholarly literature on legal pluralism in criminal justice conspicuously fails to confront legal centralism. 31 3.2.1 Limits of the Mozambican literature on legal pluralism in criminal law There is extensive literature on Mozambican legal pluralism.
F RAMING THE POSSIBILITIES OF POSTCOLONIAL THEORY FOR CRIMINAL JUSTICE
In Africa, most people use non-state mechanisms to resolve conflicts. Principles of Judicial Independence (1985); Kampala Declaration on Prison Conditions in Africa (1996); Resolution on Guidelines and Measures for the Prohibition and Prevention of Torture, Cruel, Inhuman or Degrading Treatment or Punishment in Africa (Robben Island Guidelines) (2002);
C ONCLUDING REMARKS
Respect for the common law in criminal justice will only be achieved when the political power imposes respect for it on all state institutions. Respect for customary law applied in criminal justice will only be achieved when the West/East or North/South dichotomy disappears. The second part of the chapter demonstrated (through the lens of postcolonial theory) the Eurocentric approach that African countries continue to adopt to criminal justice.
The next chapter deals with the historical context of the state's approach to non-state conflict resolution mechanisms in relation to criminal justice in Mozambique. It shows how the past shaped and continues to shape the approach to criminal justice in the country.
THE STATE’S APPROACH TO NON-STATE FORMS OF CONFLICT RESOLUTION IN CRIMINAL
I NTRODUCTION
C RITICAL ANALYSIS OF ACCESS TO JUSTICE IN M OZAMBIQUE
For example, the northern province of Nampula is the most populous province in the country with more than six million inhabitants. 276 Results of the 2017 population census published by the National Statistical Institute (Instituto Nacional de Estatística, INE). Due to the age of the prison infrastructure and the results of significant overcrowding, detention conditions in Mozambique are deplorable.
Actors may include abutments (in rural areas); block secretaries and ward secretaries (in urban settings); The analysis of the state's approach to legal pluralism in criminal law will show that certain trends recur in the way in which the state deals with criminal law.
H ISTORICAL DEVELOPMENT OF THE STATE APPROACH TO LEGAL PLURALISM IN CRIMINAL JUSTICE
- Colonial Mozambique
- The independence and post-independence eras
Other prisons such as the Civil Prison (Cadeia Civil) of Lourenço Marques (today Maputo) were unsuitable due to the deplorable state of the country. The first was the Code of the Indigenous People of the Inhambane District (Código Cafreal do Distrito de Inhambane). As the power of committees, courts, and party cell groups grew in the liberated areas, the role of traditional colonial authorities shrank.
Independence was obtained in 1975 with the proclamation of the People's Republic of Mozambique (Republica Popular de Moçambique). There was no distinction between the state's approach in civil and criminal matters.
T HE STATE ’ S CURRENT APPROACH TO LEGAL PLURALISM IN CRIMINAL JUSTICE
It emphasizes the importance of community courts for the dynamism of social and economic life in the country. At the Faculty of Law of the Eduardo Mondlane Public University, the curricula focus on a positivist approach to law. Only state law (in the written norms of codes) represents law in the curricula of law schools.
Courses on legal pluralism are not part of the curriculum, not even in the form of short modules. The center's curriculum included, in the past, a theoretical and practical exercise on legal pluralism.
H ISTORICAL DIFFERENCES AND SIMILARITIES IN STATE APPROACH TO LEGAL PLURALISM IN CRIMINAL JUSTICE
Portuguese control over local criminal proceedings is visible in the composition of native courts, their selection of cases and the punishment they administered. The judge of the courts was a Portuguese administrator, while his advisers were local authorities controlled by the colonial administration. Two characteristics of the colonial state's approach to legal pluralism are applied to criminal justice.
The new approach to state legal pluralism extends its principles to criminal matters. Finally, as during colonialism, the state's approach in civil cases is different from that used in criminal cases.
C ONCLUDING REMARKS
Legal pluralism was recognized by the Constitution in 2004, albeit with the repugnance clause still in place (as in the colonial period) to balance the right of people to refer to non-state forms of conflict resolution while maintaining state control over all. the system. The state reasserted its monopoly on criminal matters when in 2015 the Penal Code removed criminal jurisdiction from community courts, revealing a weaker juridical-pluralist approach to criminal matters than to civil ones. The state approach to legal pluralism as applied to criminal justice in the post-independence period bears structural similarities to that in the colonial period.
However, by 2015, the country had reverted to a weak form of legal pluralism in relation to criminal justice: the current government decided that the monopoly over criminal matters would remain with the state and removed criminal jurisdiction from community courts. Both the state and the prevailing norms in the scholarly literature give limited recognition to legal pluralism when it comes to criminal justice.
FRAMING THE FUNCTIONING OF COMMUNITY COURTS IN MAPUTO THROUGH
I NTRODUCTION
77 21 focus group discussions were conducted in six of the seven districts of Maputo city,435 which are the most urbanized districts in the country: Kamubukwana, Kamaxakeni, Nhlamankulu, Kamavota, Katembe and Kampfumo. In Nhlamankulu district, group discussions were held with the community court judges of Unidade 7, Chamanculo D and Mikadjuine neighbourhoods. Judges from the Community Courts of Mahotas, Albazine and Costa do Sol were part of the focus group discussions held in Kamavota District.
Finally, in the district of Katembe, the new community courts of Inguide, Chali, Incassane, Chamissava and Guachene districts were part of the field work. Such information helped to shed light on the types of conflicts dealt with by the courts, the procedures followed and the length of cases and their sentences.
A N OVERVIEW OF COMMUNITY COURTS IN M OZAMBIQUE
78 established in 1978. 441 Community-level Popular Courts were subsequently renamed and legally recognized as Community Courts through Act 4/1992. Unlike the community-level people's courts,442 which were part of the legal system, community courts were left outside the state system. Most community courts are found in the north (43.1%) and the center (46%) of the country, particularly in the northern provinces of Nampula and Cabo Delgado and the central provinces of Tete and Zambezia.
Also, in 2020, recognition of the work of community courts was also noticed at the political level by the Minister of Justice, Constitutional and Religious Affairs (Ministério da Justiça, Assuntos Constitucionais e Religiosos, MJACR), Helena Kida. One of the functions of the first department is to ensure the installation, operation and registration of community courts.
C OMMUNITY COURTS ’ LEGAL FRAMEWORK
Five years later, in 2007, Article 5 of Law 24/2007 (which reformed the formal judicial organisation)466 emphasized the important contribution of Community courts to the dynamics of the country's social and economic life. 2 of Article 3 of Law 4/1992, which allowed Community courts to deal with minor criminal offences.471 The repeal limited the scope of action of the Community Court to civil cases. The restoration of criminal justice power to community courts represents an important opportunity to empower local communities to deal with minor offenses and not rely on the state criminal justice system, which often results in extensive pre-trial detention and other adverse consequences.
Allowing community courts to have jurisdiction over minor criminal matters punishable by imprisonment, such as theft, assault, simple domestic violence, marijuana cultivation and trafficking in small quantities of drugs473 would be in line with the norms of the new Penal Code474 which provides for the application of alternatives to imprisonment in the country. While pressure must be applied at the political level to increase the powers of community courts, the provision of the law providing for the criminal jurisdiction represents a valuable opportunity for the criminal justice system to improve people's access to justice and ultimately the state of the prisons.
T HE FUNCTIONING OF COMMUNITY COURTS IN M APUTO
- The Maputo community courts’ Commission
- The number of community courts in Maputo
- Places where community courts function and their politicisation
- The profile of community court judges
- Appointment of community court judges
- Cases in the community courts
- Proceedings of a case opened at a community court
- Language spoken at the community court
- Duration of cases at community courts
- Fees at the community courts
- Community court decision-process and penalties
The physical proximity of community courts to clerks works in the courts' favor. Of the 38 community courts in the city, 34 had male presidents, while women presided over only four municipal courts. 509 Data from the Superior Judicial Council (Conselho Superior da Magistratura Judicia, CSMJ) (January 2021).
This relationship reinforces concerns about the political interference of the party within the functioning of the community courts. Elections can also involve the community of the neighborhood in which the courts operate, as in the past.
R ELATIONSHIP BETWEEN COMMUNITY COURTS AND STATE AND NON - STATE MECHANISMS OF CONFLICT
- Referral of cases
- Community courts’ formalisation
- Training opportunities
One case, related to land issues, was sent to the regulo, the traditional head of the country. While some community court judges send cases to the courts, the majority of state judges show little interest in understanding and accepting what the community court judges find at the community level. The commission sends monthly reports to the Provincial Directorate of Justice (DPJ) on the number of cases resolved by each court, and general information on the functioning of the city's courts.
The judges took the oath, after which they were officially presented to the residents of the neighborhood. 654 The Community Court of Magoanine A was established on 6 March 2014, while the five community courts in Catembe District were established on 29 May 2013.
C ONCLUDING REMARKS
114 pluralism as applied to criminal justice and as provided for in Article 4 of the Mozambican Constitution. The existence of the Community Courts Commission is one way in which judges can share their opinions and views on various issues and improve cooperation with various external stakeholders. Municipal court judges act as mediators, involving extended families and local communities when necessary.
Concerns have been noted throughout this chapter regarding the love-hate relationship that community courts have with the neighborhood secretaries. The concern about the politicization of the community court judges is also highlighted in connection with the issue of the subsidies that judges regularly request from the state.
CONCLUSIONS AND RECOMMENDATIONS
Centro de Educação Judiciária e Judiciária, p. 2016) 'Legitimidade, resolução de conflitos e acesso à justiça em Macossa', em José, A.C. org.). 2009) 'A Política do Pluralismo Jurídico: Políticas de Estado sobre o pluralismo jurídico e as suas dinâmicas locais em Moçambique', Journal of Legal Pluralism, 59, pp.87-120. ed.) (2012) A dinâmica do pluralismo jurídico em Moçambique. O Estado e o Direito Tradicional em Angola e Moçambique, P. 2008) 'Uma articulação entre o Estado e as autoridades tradicionais.
Traditional Healers and the Law in Post-Colonial Mozambique', Beyond Law, 27, s. 2006) 'Traditional Authorities in Mozambique: between Legitimization and Legitimacy', i Hinz, M.O. red.). 2010) ’Hvordan integrerer man universelle menneskerettigheder i sædvanlige og religiøse retssystemer?’, Journal of Legal Pluralism, 60, s. 2006) Migration, Diasporas and Legal Systems in Europe.
