Hostname: page-component-84b7d79bbc-fnpn6 Total loading time: 0 Render date: 2024-07-29T03:09:21.615Z Has data issue: false hasContentIssue false
  • English
  • Français

Traditional Courts and the Struggle against State Impunity for Civil Wartime Offences in Mozambique

Published online by Cambridge University Press:  04 March 2010

Victor Igreja
Get access Rights & Permissions [Opens in a new window]

Abstract

In the Mozambican context of the state amnesty for civil war crimes, war survivors have used their local ethics of reciprocity to create justice. This article analyses how survivors have attempted to persuade judges in traditional courts to adjudicate in serious wartime disputes. These judges, who have no official mandate to redress wartime offences, tried to preserve the conflicting interests of the litigants and the state. This positioning, coupled with the fact that the local ethics of reciprocity are embedded in uneven power and gender relations, resulted in some cases being adjudicated and others not, and in some disputes receiving no gender justice. Nevertheless, some of the interventions indicate that national and international institutions of justice are not the only ones engaged in the struggle against impunity for wartime crimes. In Mozambique, specific attention must be paid to the study of traditional justice mechanisms as fonts of redress for wartime crimes and for the long-term contribution they can make.

Type
Research Article
Information
Journal of African Law , Volume 54 , Issue 1 , April 2010 , pp. 51 - 73
Copyright
Copyright © School of Oriental and African Studies 2010

Access options

Get access to the full version of this content by using one of the access options below. (Log in options will check for institutional or personal access. Content may require purchase if you do not have access.)

References

1 Igreja, V “Memories as weapons: The politics of peace and silence in post-civil war Mozambique” (2008) 34/3Journal of Southern African Studies 539Google Scholar; Igreja, V “Justice and reconciliation in the aftermath of the civil war in Gorongosa, Mozambique central” in Ambos, K, Large, J and Wierda, M (eds) Building a Future on Peace and Justice: Studies on Transitional Justice, Peace and Development (2009, Springer) 423Google Scholar.

2 Wilson, RThe Politics of Truth and Reconciliation in South Africa (2001, Cambridge University Press)CrossRefGoogle Scholar.

3 Burgess, P “A new approach to restorative justice – East Timor's community reconciliation processes” in Roth-Arriaza, N and Mariezcurrena, J (eds) Transitional Justice in the Twenty-First Century: Beyond Truth Versus Justice (2006, Cambridge University Press) 176Google Scholar; Huyse, L and Salter, M (eds) Traditional Justice and Reconciliation After Violent Conflict: Learning From African Experiences (2008, International IDEA)Google Scholar.

4 Nordstrom, CA Different Kind of War Story (1997, Pennsylvania University Press) at 216Google Scholar.

5 Santos, B and Trindade, J (eds) Conflicto e Transformação Social: Uma Paisagem das Justiças em Moçambique (2003, Edições Afrontamento)Google Scholar; Santos, B “The heterogeneous state and legal pluralism in Mozambique” (2006) 40/1Law & Society Review 39Google Scholar.

6 Hayner, PUnspeakable Truths: Confronting State Terror and Atrocity (2001, Routledge)Google Scholar.

7 Madsen, R “The politics of revenge in rural China during the Cultural Revolution” in Lipman, J and Harrel, S (eds) Violence in China (1990, State University of New York Press) 175 at 181Google Scholar.

8 Banda, F “Women, law and human rights in southern Africa” (2006) 32/1Journal of Southern African Studies 13Google Scholar; Hirsh, SPronouncing and Persevering: Gender and the Discourses of Disputing in an African Islamic court (1998, Chicago University Press)Google Scholar.

9 Unger, RLaw in Modern Society: Toward a Criticism of Social Theory (1976, The Free Press)Google Scholar.

10 Merry, SHuman Rights and Gender Violence: Translating International Law Into Local Justice (2006, Chicago University Press) at 13Google Scholar.

11 Merry, S “Legal pluralism” (1988) 22/5Law & Society Review 869Google Scholar; Migdal, JState In Society: Studying How States and Societies Transform and Constitute One Another (2001, Cambridge University Press)Google Scholar; Rabinow, PFoucault: The Reader (1984, Pantheon Books)Google Scholar.

12 Greenhouse, C “Introduction: Altered states, altered lives” in Greenhouse, C, Mertz, E and Warren, K (eds) Ethnography In Unstable Places (2002, Duke University Press) 1Google Scholar; Henry, S “Community justice, capitalist society, and human agency: The dialectics of collective law in the cooperative” (1985) 19/2Law & Society Review 303Google Scholar.

13 Mueggler, EThe Age of Wild Ghosts: Memory, Violence and Place in Southwest China (2001, University of California Press) at 9Google Scholar; J Rosenthal “Trance against the state” in Greenhouse et al, id at 316; V Igreja “The politics of peace, justice and healing in post-war Mozambique” in C Sriram and S Pillay (eds) Peace Versus Justice? The Dilemma of Transitional Justice in Africa (2009, University of Kwa-Zulu Natal Press) 277 at 278.

14 Hirsch, S “Feminist participatory research on legal consciousness” in Starr, J and Goodale, M (eds) Practicing Ethnography in Law (2002, Palgrave Macmillan) 13 at 17CrossRefGoogle Scholar.

15 Conley, J and O'Barr, WJust Words: Law, Language, and Power (2005, University of Chicago Press)Google Scholar.

16 S Lubkemann Culture in Chaos: An Anthropology of the Social Condition in War (2008, The University of Chicago Press).

17 Igreja “Memories as weapons”, above at note 1.

18 The Portuguese colonial administrators called them regulos.

19 Abudo, J “Administração-justiça e terras” in Lundin, I and Machava, F (eds) Autoridade e Poder Tradicional (vol I, 1995, Ministry of State Administration) 123Google Scholar; Buur, L and Helene, K (eds) State Recognition and Democratization in Sub-Saharan Africa: A New Dawn for Traditional Authorities? (2007, Palgrave Macmillan)Google Scholar; Galli, RPeoples' Spaces and State Spaces: Land and Governance in Mozambique (2003, Lexington Books)Google Scholar; Geffray, CLa Cause des Armes au Mozambique (1990, Editions Karthala)Google Scholar; Sachs, A and Honwana-Welch, GLiberating the Law: Creating Popular Justice in Mozambique (1990, Zed Books)Google Scholar.

20 In Protocol V of the AGP, “Of guarantees”, the government promises to respect and not antagonize the traditional authorities.

21 This law establishes the relationship between the local state organs and community authorities: Boletim da República, no 24.

22 Griffiths, J “What is legal pluralism?” (1986) 24 Journal of Legal Pluralism & Unofficial Law 1CrossRefGoogle Scholar.

23 V Igreja and B Dias-Lambranca “Christian religious transformation and gender relations in postwar Gorongosa, central Mozambique” (2009) 39/3 Journal of Religion in Africa 262.

24 Santos and Trindade (eds) Conflicto e Transformação Social, above at note 5.

25 Tyler, T and Lind, EA “Procedural justice” in Sanders, J and Hamilton, VL (eds) Handbook of Justice Research in Law (2001, Plenum Publishers) 65Google Scholar.

26 Minow, M, Ryan, M and Sarat, A (eds) Narrative, Violence and the Law: The Essays of Robert Cover (1995, The University of Michigan Press)Google Scholar.

27 These other cases were presented in court between 2001 and early 2005. In late 2008, two more cases were brought to the traditional courts. One of them was about a conflict that took place during colonial times, which reinforces the local theory of conflicts enduring unless there is a proper resolution.

28 Wilson, R “Reconciliation and revenge in post-apartheid South Africa: Rethinking pluralism and human rights” 2000 41/1Current Anthropology 75Google ScholarPubMed; Wilson The Politics of Truth and Reconciliation, above at note 2.

29 Merry Legal Pluralism, above at note 11 at 885; S Moore “Law and social change: The semi autonomous social field as an appropriate subject of study” (1973) 7 Law & Society Review 719.

30 Minow et al “Narrative, Violence and the Law”, above at note 26.

31 In the resolution of other conflicts, it can happen that litigants involve the police in corruption schemes when they lose their cases in the traditional courts. On one occasion, this resulted in the police discovering that traditional judges had been involved in adjudicating disputes (alleged cannibalism) for which they did not have a legal mandate. The chief judge was sent to prison for a week.

32 Woodman, G “Ideological combat and social observation: Recent debate about legal pluralism” (1998) 42 Journal of Legal Pluralism and Unofficial Law 21 at 38CrossRefGoogle Scholar.

33 Von Benda-Beckmann, F “Who's afraid of legal pluralism?” (2002) 47 Legal Pluralism and Unofficial Law 37 at 69CrossRefGoogle Scholar; Huyse and Salter (eds) Traditional Justice and Reconciliation, above at note 3; Santos “The heterogeneous state”, above at note 5.

34 Biehl, J, Good, B and Kleinman, A (eds) Subjectivity: Ethnographic Investigations (2007, University of California Press) at 5CrossRefGoogle Scholar.

35 Greenhouse, C “Legal pluralism and cultural difference: What is the difference? A response to Professor Woodman” (1998) 42 Legal Pluralism and Unofficial Law 61CrossRefGoogle Scholar.

36 Igreja, V, Dias-Lambranca, B and Richters, A “Gamba spirits, gender relations and healing in post-civil war Gorongosa, Mozambique” (2008) 14 Journal of the Royal Anthropological Institute (NS) 350CrossRefGoogle Scholar.

37 Conley and O'Barr Just Words, above at note 15 at 14.

38 Mertz, E “Language, law, and social meanings” (1992) 26/2Law and Society Review 413 at 425CrossRefGoogle Scholar.

39 Valji, N “Gender justice and reconciliation” in Ambos, K, Large, J and Wierda, M (eds) Building a Future on Peace and Justice (2009, Springer) 217Google Scholar.

40 Starr, J and Collier, J “Dialogues in legal anthropology” in Starr, J and Collier, J (eds) History and Power in the Study of Law (1989, Cornell University Press) 1 at 6Google Scholar.

41 Banda, F “Building on a global movement: Violence against women in the African context” (2008) 8 African Human Rights Law Journal 1Google Scholar; Hirsh Pronouncing and Persevering, above at note 8.

42 Igreja, V and Dias-Lambranca, B “Restorative justice and the role of Magamba spirits in post-civil war Gorongosa, Central Mozambique” in Huyse, and Salter, (eds) Traditional Justice, above at note 3, 61Google Scholar.

43 Banda “Building on a global movement”, above at note 41; Reilly, N “Seeking gender justice in post-conflict transitions: Towards a transformative women's human rights approach” (2007) 3/2International Journal of Law in Context 155CrossRefGoogle Scholar; Valji “Gender justice and reconciliation”, above at note 39.

44 Rosen, LLaw as a Culture: An Invitation (2006, Princeton University Press) at 167–68CrossRefGoogle Scholar.