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Thread: What tribal societies can tell us about justice and liberty

  1. #81
    Council Member M-A Lagrange's Avatar
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    Mes respects Mike,

    I gather this "district" has a number of villes (based on "roads discussion"; G is the main ville and district center with Commissioner and Paramount Chief; X, Y, O & U are subsidiary). Are all these ville folks from the same population group (e.g., common dialect, customs, etc.) ? What (if anything) differentiates folks in one ville from another ville (e.g., separate extended families or totem clans) ?
    Well, I will try to clarify a little all of this. First, yes, G is the main city of the area. Secondly, no, all populations are not from the same ethnical group. But X and Y are from the same ethnical group. They do have common dialects and common customs.
    What differentiate the population from one city from another? Good question! It is hard to say, mainly extended family relations. But also, and that is one of the main points, what each of those village population did or not during the past war. Not that they fought each others but rather how they did cope with it.
    But it does not really matter if we try to look at this report as representative of the difficulties faced on the ground. This mainly because in fact, the unexpressed needs on those 2 villages conflict is all about miss governance and unfair distribution of peace benefits. Village X received all the aid while village Y did receive none.
    It looks anecdotic but as demonstrated the anthropologist Elikia M’Bokolo, ethnic groups and tribes are not something fixed and new ethnic groups may be created on such bases as differentiated access to development or administrative power or a split between 2 groups in a village. (This reinforce the dynamic character of traditional societies as posted Marc)


    the X & Y Monyomiji have down such "M" stuff as force projection, tracking and meeting force with force - as well as some "I" stuff (conflicting claims re: narrated causes, with some underlying "E" stuff, a fair inference).

    Despite the "sensitive" situation vis a vis X and Y folks, the Commissioner seems to have free passage in both villages. Why is that so ? Can the same be said for the Paramount Chief (also residing at G) ?

    What X and Y seem to lack is an "international" dispute resolution mechanism - "D" (on an inter-ville basis) is apparently lacking in their vocabulary; although it seems that the Commissioner and Paramount Chief have been involved in this unsuccessful attempt at "D":
    It is somehow a lagrangian paradise in the sense, as you mentioned it, that what characterise this situation, and many I have been in, lack of international mechanisms to initiate dialog between 2 villages.
    Here, as in many other places, the village is like a small country. This is why I tend to approach tribal or traditional societies as islands in a sea of sand.
    The paramount chief is both a traditional and administrative authority, such as the village chief. How they are chosen? Partly by the population and partly by “central” power. Therefore, even in a homogeneous ethnical group area, the situation is much like an archipelago. Each village has its land and between each village, free land can be assimilated to “international waters”.
    The paramount chief should be the authority who would settle issues between al villages. But when it falls into violence, the recognised authority is the commissioner. This mainly because paramount chief does not have real force capacity while commissioner does.
    I wonder how much sea law approach could help to analyse and set up mechanisms to solve such practical issues.

    Concerning freedom of movement, the paramount chief does have the same freedom of movement than commissioner but he does not have either the will or the capacity (a car). And, in addition, commissioner does have troops to protect him.





    Have these villes ever had a tribunal to settle inter-ville differences ? If so, when, what did it look like and why did it end ? More generally, how have these inter-ville armed conflicts ended in the past ? Or have they just settled down for a time until it's time for a new generation to "go to the mattresses" ?
    The situation is some how new, in the sense that inter-village conflict settlement is not a new thing but peaceful settlement is. To be clear, the peace agreement this report is referring to is basically built on the same bases as an international peace agreement: the 2 parties agree to stop fighting on 1 issue (here the cattle raiding issue). A third party is designated as observer and a compensation mechanism is put in place.
    If any member of any of the 2 communities commits an offence against the peace agreement, the offended party can report it to the third party who will then establish a compensation price, initiate actions to bring the “criminal” to justice.
    One of the many limits of that process is the fact that:
    1) Elders who are the warrant of the peace process have no obligation of success or even results. As elders are not affected if there are no results, some may decide to not implement the peace agreement.
    2) Youth are not respecting elders anymore.
    3) Elders are not respecting youth who do not comply with tradition (going for cattle raiding and women and children abduction). An interesting report on this in Central Equatorian state in South Sudan was published several months ago. Unfortunately I lost it. But as described in a previous post, it is the same problematic of age group competition (with a variation) as in Liberia.
    What characterise post conflict areas I have been into is that impossible dialog between elders and youth based on the denial (on both sides) of social power/recognition by each age group. I personally believe that this is one of the problematic that we do have important lack of understanding: social impact of war on age groups and how this is in depth affecting peace building capacities by undermining judicial systems in fragile and traditional societies.


    As an alternative to a Weberian Paradise, is the Monyomiji system also suited to the local inter-ville relationships (so long as the conflict remains low intensity) by providing for "redistribution of wealth" (cattle raiding), allowing young men to prove and improve their status, get married and sire a flock of warrior kids, etc., etc. ?
    We are here in the problematic I was talking about previously. Basically Monyomiji does play a role in youth integration in the village social power mechanisms. But war impacts have been:
    1) To impoverish the elders and therefore the youth.
    2) To build capacities inside youth (through vocational training relief programs) which are not recognised by the elders’ group as valuable. As example, one of my colleagues, who is graduated in politic science and has a job in an international organisation, is not respected by the elders of his village because he did not cattle raid. But he is making more money in one month they will never have in their life (and he is not making much, less than 2000$).
    3) And finally a culture of violence inside youth who has been raised in a country at war during several decades and does not recognised any value in peace as they never experienced it.
    So, as you pointed it Mike, youth have a social obligation to cattle raid, abduct children and women. But they also face an economical necessity as there are no employment opportunities. And if there are some, it is not recognised (back to the social obligation).
    And finally, war is the only way of life those young men know in fact. As it is said in a War Child poster: you can take a child out of the war but how do you take the war out of a child?

    But concerning our subject, we have here a strong combination of social and economical disturbances which are basically undermining any efforts to build or rebuild any form of judicial systems. Using the traditional systems looks like a good idea as it seems to be a widely accepted referral system but, as I mentioned before, the assumption that goes with is that traditional systems are frozen in time. (A mistake according to Levis Straus, as Marc pointed).
    With traditional societies based on Islam, this might be slightly different as the legal referent is written (Coran). But still, each village judicial system will still remain subject to local interpretation.

    Oh, and CAD means Civil Affairs Department

    M-A

  2. #82
    Council Member marct's Avatar
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    HI MA,

    Thanks for the expansion on the situation.

    One of the things that I really appreciated with it was that you pointed out how cultures "change". One of the really big problems with the idea, the myth if you will, of "tribal societies" is their "eternal" nature (good, bad or indifferent). All cultures change, although they will retain components from their pre-change states.

    You were talking about a competition between age grades - elders vs. youth - and this is a pretty common tension in most societies; hey, I see it in Canada and the US too (this is a great example, albeit dated). One of the things that seems to be operating in the case of this particular tension is what sets the limits on the relationship between the age grades, and how has that changed? In the cases you're discussing, cattle raiding, etc., the skills and tools of such raids could not, really, be used against the elders who could mobilize another age grade as a physical counterpoise. That changes with automatic weapons where a 10 year old can kill a 30 year old (unlikely, albeit still possible, with spears and/or swords).

    Changes in the environment (physical, economic, technological) always create perturbations in a culture. This can get to be really problematic when those factors have been stable for 4+ generations, and their local solutions have been ritualized and tied into local meaning structures; "sanctified by tradition" as it were. You end up with a "tradition" that is now destabilizing a community where once it stabilized it.
    Sic Bisquitus Disintegrat...
    Marc W.D. Tyrrell, Ph.D.
    Institute of Interdisciplinary Studies,
    Senior Research Fellow,
    The Canadian Centre for Intelligence and Security Studies, NPSIA
    Carleton University
    http://marctyrrell.com/

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    Default Sea Law (admiralty)

    is a fascinating legal area because it includes, in an international and comparative law context, all of the domestic law subjects (e.g., property, contract, tort, compensation, criminal) needed to regulate interactions between actors who are often of different domestic law regimes. So, its application (in broad-brushed concept) to your "islands in the sand" seems plausible.

    It seems odd that some sort of inter-ville conflict resolution system is not "indigenous", especially between villes of the same culture (e.g., North American Indians from Labrador through the Great Lakes regularly used restitution as an alternative to blood feuds). Perhaps, that concept has been lost because of repeated armed conflicts. In any event, whether you call it Sand Sea Law or something else, it will have to be imposed (or at least introduced) by a third party. So, you have more a "rule by law" than a "rule of law". Rule by law is OK if it is accepted by all concerned.

    Third parties apparently have not been too smart re: villes X and Y:

    from M-A
    But it does not really matter if we try to look at this report as representative of the difficulties faced on the ground. This mainly because in fact, the unexpressed needs on those 2 villages conflict is all about miss governance and unfair distribution of peace benefits. Village X received all the aid while village Y did receive none.
    Thus, Y has to raid X to obtain "redistribution of wealth". If Sand Sea Law forbids Y from trying to even up its economic position re: X, that law will not be accepted by Y as legitimate.

    By favoring X with all the aid, the "third party" denied economic opportunity to Y, which denial is emphasized if the law does not allow Y its only redress; and is further emphasized if the Commissioner uses a platoon of cops to meet force from Y with force. From the standpoint of X (favored by governance), governance is "good" and triply legitimate (favoritism in economic opportunity, law and security force). Y would see governance as triply illegitimate.

    Legitimacy issues come on three general levels - ideology, opportunity and security (all being relative; e.g., who offers the better deal in "insecurity" ). It looks like correction in your case study would have to start at the opportunity level (evening up X and Y). That would depend on the prevailing Politik's ability to shift gears. If not (e.g., Vietnam I and II), the solution left is Wilfian.

    Regards

    Mike

  4. #84
    Council Member M-A Lagrange's Avatar
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    Default The complex issue of integrating matriarchal societies into modern legal framework

    To continue in the direction given by Marc, I would like to illustrate how modern legal system may also influence traditional justice. As Marc pointed, traditional systems are dynamic and also show that traditional justice (or societies in general) is not disconnected with modern legal system.

    For this purpose, I will use the example of the Kongo society in Bas Congo Province of DRC. This province has the characteristic to be populated by an ethnic group who is organised in clans, almost the only one in DRC. But, what is really interesting is that the clan structure was matriarchal. What does that mean concretely?
    In the past, clan chief were men but the clan identity is transmitted through women and not men. It is not who your father is which is important but who your mother is that will determine to which clan you belong to.
    Why is that so important? Because in the traditional system, it defines how heritage (land and properties) was divided and transmitted.
    Nowadays, modern laws are patriarchal based. In DRC legal system is based on the Belgian legal system which is coming from the Roman legal system. In terms of heritage this means it is a transmission from father to son while in Kongo system it was a mother to son transmission.

    Also, Bas Congo province welcomed refugees from Angola during the Angola civil war. The Kongo ethnic group is spread all over North Angola, Bas Congo, Congo Brazzaville up to Cameron. (Mike may give some historical details on this). So when the refugees came from Angola to Bas Congo (DRC), they easily integrated into the population as they were all related through extended family and clan.
    An in depth study conducted in 2008 by an anthropologist among Bas Congo refugees demonstrated that in fact, situation was not that clear and traditional justice and society mechanisms were no more respected.
    First, due to the difference of treatment and access to several services by international community, a division was made between Angolan Kongo and Congolese Kongo by local population. I, personally, did witness such mechanism of ethnic group creation in Chad between Chadian Massalite and Darfury Massalite for the exact same reason. This comes in the line of the researches and work of Anthropologist Elikia M’Bokolo who worked on the complex mechanisms of ethnic groups and tribe creation. (And does reinforce Marc points on the fact that traditional societies are dynamic evolving social objects, sometimes very quickly.)

    Secondly, the survey (conducted only in DRC, situation might be different in Angola) demonstrated that if a Congolese woman marries an Angolan man then their child would be considered as Congolese or belonging to the women clan but as an Angolan. And when an Angolan woman marries a Congolese their child would be considered as a Congolese. We have here a first disruption of the traditional justice as according to traditional justice, the child belongs to the community of the mother. But when the child reaches the adult age then this might be reinterpreted by the community. Basically what is happening is that the Congolese man marrying an Angolan woman will leave her the child to be raised by her. As per traditional society rule, the mother will have the charge of educating and raising the child. But when the adult age comes and the child becomes “economically productive” (as work force for the male and through bride for the female), the Congolese community will claim the child/young adult as Congolese as per Congolese modern law.
    In the case of a Congolese woman marrying and Angolan man, the child will be raised and educated by the mother, as per traditional rules. But the Congolese family will not consider that child as Congolese when he or she becomes a young adult. The situation would be even worst when it comes to young women. Because they would be denied the Congolese status but the Congolese family will still request to receive the bride as per traditional rules. Traditional chiefs will even support the Congolese families in both cases, playing with modern and traditional justice and legislation depending on each case.

    Here, we have neither a society rule by law neither subject of rule of law but a traditional society assimilating modern law to transform a traditional matriarchal system into a de facto patriarchal system.
    If that was limited to nationality, the issue would not be that important. But, it also affects land and property heritage. Matriarchal system was set in place to protect women and particularly widows to be spoiled from their property. Nowadays, Kongo women are “legally” more vulnerable as modern law is in contradiction to traditional legal system. Then, as they have a symbolic power position in the Kongo society (as in most of the matriarchal systems) and not a decision making power, they are subject of non linear interpretation of the law (one time modern, one time traditional), depending on the “economical” benefits men or communities can make of this inadequacy of modern law with traditional law.

    Finally,
    From JMM99:
    It seems odd that some sort of inter-ville conflict resolution system is not "indigenous", especially between villes of the same culture (e.g., North American Indians from Labrador through the Great Lakes regularly used restitution as an alternative to blood feuds). Perhaps, that concept has been lost because of repeated armed conflicts. In any event, whether you call it Sand Sea Law or something else, it will have to be imposed (or at least introduced) by a third party. So, you have more a "rule by law" than a "rule of law". Rule by law is OK if it is accepted by all concerned.
    Mike, in fact you are very right in the sense that intra ethnic group regulation mechanisms should have been existing. I believe, in the particular case, that the political problematic is the core issue and not the cattle raiding issue. That is why traditional mechanisms might be no more functioning.
    To illustrate this, I recommand to go to the following link:
    http://www.gurtong.net/ECM/Editorial...2/Default.aspx

    It also shows that in so much war disrupted context, rule by law is somehow a first step that has to be imposed before being able to even think of imposing rule of law. (Comments are very interresting).
    Last edited by M-A Lagrange; 05-20-2010 at 10:00 AM.

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    Telar Deng calls to review Dinka customary law
    May 27, 2010 (RUMBEK) – The Caretaker- Governor of Lakes State, Telar Ring Deng has appealed to the next elected Governor, Engineer Chol Tong Mayay, to initiate a traditional chief’s conference in greater Bahr-El-Ghazal to amend a Dinka customary law known as "Wath Aleel".
    Wath Aleel, a Dinka costmary law was established in 1999 in Wunlit. It imposes forceful marriage in the Dinka society and blood compensation in the form of cows. The law means "A gate of stone" and it only covers Bahr-El-Ghazal region in South Sudan.
    During Daniel Awet’s term as governor of Lakes State, one article was amended in the law by changing the number of cows paid by adulterers from 15 to 31 cows. . The compensation for killing someone was changed from 51 to 71 cows. However, others states such as Warrap in Northern Bahr-El-Ghazal and Western Bahr-El-Ghazal were not involved in amending this article.
    Telar made his call in a speech delivered on Wednesday when he was sworn into the legislative assembly of Lakes State’s Lawmakers. He noted that the "Assembly is charged with the responsibility to protect the community welfare, bring peace and unity to the people of this state."
    Telar Ring Deng affirmed that he realizes that the law was amended, however, in respect to law-making processes, and particularly a common law like “Wath Aleel” which covers the Dinka of Bhar El Ghazal, he urged the new Governor of Lakes State and the Assembly to request that the governors and assemblies of Greater Bahr El Ghazal and their chiefs hold a tribal chiefs’ Conference in order to make any amendments that are deemed necessary.
    He said that for Lakes State Legislative Assembly to revise the “Wath Aleel” Dinka costmary law of Bhar El Ghazal without the participation of other Greater Bahr El Ghazal States is null and void and should immediately be repealed.
    Southern Sudan is close to holding the Referendum in 2011 to decide whether the country will remain united or separate into two countries. The South Sudan Referendum is only 225 days away; however, Deng said that Lakes State must lead its citizens in making a well informed choice in both cases. The citizens must be made aware of the pros and cons of their decision in the referendum.
    Since its foundation in 2005, the Lakes state government was overwhelmed with improving the infrastructure, education and the health services, so the security was neglected resulting into killings and corruption as well as nepotism in various institutions.
    http://www.sudantribune.com/spip.php?article35212

    An interresting intervention which shows all the problematic of customary justice versus formal justice.

    Mainy things to comment here and mainy anthropological process to observe in that article. I will not detail all of them but just point the ones that strikes me:
    - the legitimacy conflict between traditional and modern law making process. To be legitimate, a modern law has to be passed through traditional mechanisms.
    Actually, all the Rule of Law challenge is to revers that perception.
    - The refusal of the idea that breaking the law could have an unaffordable cost.
    This tells us long about the value of a life and the conception of individual versus group interrest appreciation.
    - The need of combine rule by law and rule of law at the same time.
    - The fact that customary laws are in fact produce of present and actual and not a produce of the past.
    - The fact that custom is perceived as above modern and national law, even by formal authorities.
    And it just reinforce all UNDP points posted by JMM. This article comes at an interresting time in South Sudan as UNDP is actually trying to formalise customary law and put them on writing.

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    Council Member M-A Lagrange's Avatar
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    Council of Traditional Authority Leaders not Independent
    The Eastern Equatoria State Local Government and Law Enforcement Agencies Director General Abdallah Hassan Famai has clarified that the Council of Traditional Authority Leaders (COTAL) does not operate independently from other government institutions.
    17 August 2010
    By Peter Lokale Nakimangole
    TORIT, 17 August 2010 (Gurtong) – Speaking yesterday in Torit at a 3-day consultative workshop of Council of Traditional Authority Leaders of Eastern Equatoria State, Famai dispelled claims by COTAL that they operate as an autonomous institution within its own jurisdiction.
    “You cannot be fully autonomous when the State Ministry of Local Government and Law Enforcement Agencies exists because you operate under it. You are part of the local government only that you are extremely closest to the lowest administration of people at the grassroots”, he said.
    He added that COTAL is a link and change agent between the people and the government.
    “The idea of empowering you is to make a change and create uniform systems of judging societal norms for better and effective governance”, added the Director General.
    He called for active cooperation among the traditional leaders adding that by so doing they are able to come up with their own bill which will from time to time safeguard and define their roles and functions as well as powers to be exercised by them.
    He, however, clarified that the COTAL hold powers of mobilising resources including revenue collection to facilitate their operations.
    Analysts have, however, criticised the government’s policy towards traditional leadership and have called for further adjustments to accommodate it.
    They say chiefs know all the corners of their areas of jurisdiction and can efficiently reduce insecurity by apprehending perpetrators and criminals as well as resolving conflicts at the lowest levels.
    They also content that traditional leaders play an instrumental role in local administration as well as revenue collection.
    “Therefore, granting the traditional command authority to manage its affairs becomes of paramount importance so that available resources can be adequately mobilised and disclosed to the government. By doing so, they begin to feel ownership of governance hence improved relations. Failure to do this will continue to make local chiefs maintain their standoff and hide revenue base from the government even for hundreds of decades from now”, say the analysts.
    http://www.gurtong.net/ECM/Editorial...2/Default.aspx

    I believe this article illustrate very well the challenges most of us are facing in Rule of Law programs and the problematic of including traditional chief, leaders and customary laws into modern and formal judiciary system.

    I do particularly like how it points out the problematic of hidden revenues of local leaders. As the call from the minister of Local Governance to remind local chiefs they do have a jurisdiction above them.

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