[ Justice ]

Local mediation

Laws are only of any value if they can be enforced. But the judicial systems in many countries are overburdened. Local mediation processes provide an alternative, particularly in rural areas.


[ By Bettina von Dungen ]

Methods of conflict resolution that have their roots in traditional indigenous cultures have become established in several Andean states. The main reason for this lies in the inefficiency of the state judiciary. Court proceedings often take too long and lay persons find them difficult to comprehend. Furthermore, many people hesitate to take legal action, partly due to the high cost of proceedings. There is also the additional problem for members of indigenous groups that their languages such as Quechua or Aimara, for instance, are not allowed to be used in court proceedings. According to estimates by the UN Development Programme (UNDP) from 2001, around 35% of Peruvians do not have access to the legal system.

Alternative proceedings

There are numerous possibilities for conflict resolution at local level. On the one hand, there are Courts of Peace staffed by lay jurists as well as the local judiciary of the indigenous population. On the other hand, small communities resolve their conflicts in village meetings. The advantage of this arrangement is that the conflict parties can negotiate with one another at the same level and in their own language. Furthermore, the lay judges come from the same stratum of society. The fact that they speak the language of the local population and know their problems first hand makes moderation between the conflict parties easier. According to a study by the Instituto de Defensa Legal, these authorities most often deal with conflicts concerning domestic violence, theft, bodily harm and property disputes.

Moreover, mediation via these institutions is more in line with the realities of life of rural communities, where the emphasis is on community rather than the individual, for instance. Community service, therefore, is also a common punitive measure. After all, the conflict parties and the community must continue living together. The solutions also provide a normative guiding principle for the behaviour of the community.

There is widespread acceptance of this method accordingly. In Peru, for example, only around 17% of the population trust the state judiciary, while 80% trust the Courts of Peace. The low costs for proceedings are also a contributing factor. Furthermore, complaints of abuse are few and far between. A large proportion of interpersonal conflicts can be resolved through these courts without resorting to formal legal action.

Peru has recognized this type of dispute resolution in its constitution for some time. Farming and indigenous communities thus have the opportunity to administer justice within their sphere of influence according to their own rules. This gives wide rural sections of the population access to conflict resolution

Problems with correlation

Nevertheless, problems do arise. Firstly, there are no rules regarding the interplay between the two systems yet. As a result, the judiciary and police often do not recognise the legality of the proceedings and decisions of out-of-court systems. Secondly, the indigenous jurisdiction does not share all the values of the state judiciary. Traditional law, for example, does not necessarily guarantee human rights. In domestic violence cases, for instance, preserving the marriage and the family is often accorded greater significance than protecting the victim. This is also because lay jurists lack knowledge about basic rights and elementary principles founded on the rule of law. Time and again, the penalty in the alternative courts takes the form of corporal punishment – which lawyers regard as a clear violation of human rights.

However, Hans-Jürgen Brandt from the Peace Research Institute Frankfurt is convinced that these problems can be overcome through consultation and advanced training projects. He feels the most important factor is the mutual recognition of traditional and state judicial systems. Mutual understanding is also necessary, and clear boundaries need to be set as to in which cases common law and indigenous justice should apply and where their limits lie.

InWEnt supports these processes in cooperation with the Instituto de Defensa Legal in Peru and the Centro sobre Derecho y Sociedad in Ecuador. The key focus of this joint project is the advanced training of representatives from indigenous communities and lawyers. The objective is that lay judges recognise human rights as a value and replace corporal punishment with other punitive measures such as community service. Furthermore, the courses are designed to raise the value of the informal judiciary in the eyes of lawyers and judges. It is about recognising those parts of indigenous law that are in accordance with the constitution on th

»» Instituto de Defensa Legal, Lima

»» Centro sobre derecho y sociedad, Quito

D+C, 2007/09, InWEnt Forum, Page 344