More recently, many have taken the opposite tack, arguing that state institutions are so flawed and irrelevant that legitimate and effective justice is to be found mainly in non-state social institutions such as traditional chiefs, religious or community leaders and families.
In reality, neither path is right.
On the one hand, non-state, customary or informal ‘alternative dispute resolution’ (ADR) systems have the benefit of being more accessible, less expensive, and faster for most people. State justice may be exclusionary because it is expensive, and based on concepts that a population may not be familiar with. Often a combination of corruption, politics, and enormous backlogs give the rich and powerful unfair advantages.
On the other hand, state systems can produce more enforceable results that are more widely accepted. They are based on more equitable concepts that do not (at least on paper) discriminate. And traditional institutions may be embedded in local power structures yielding systems of justice that reproduce local elite dominance, dispossession of the poor, and discrimination against women and low status groups.
In practice, a hybrid system is needed that integrates the best features of both, and that is customized to meet the needs of the particular environment.
Research by Africa Power and Politics (APPP) in Ghana shows how this might be done.
As the Institute of Development Studies‘ Richard Crook indicates in The State and Accessible Justice in Africa: Is Ghana Unique?, Ghana has been able to create a more effective system by expanding the use of ADR and more informal kinds of justice in both a program of court-connected ADR and in a separate Commission on Human Rights and Administrative Justice, which offers ADR-type mediation of complaints in its 109 District or Regional Offices.
In contrast, the neo-traditional Customary Land Secretariats, which are empowered to settle disputes arising over the ownership and demarcation of land held under customary tenure (80% of all lands), has been less successful. These were criticized in the study as being unpredictable, less legitimate, and unfair to women and migrants.
The report concludes:
Any policy to provide more accessible justice through ADR, or other informal kinds of dispute resolution, must guarantee fair and impartial mediation that combines a user-friendly informality with the authority to uphold agreements. . . . Policy should, therefore, focus on developing ‘hybrid’ institutions that can combine the legal authority and enforceable remedies of the formal system with more informal procedures for delivering justice, including ADR. . . .
Any successful ADR scheme must reflect local values and expectations about how to settle disputes fairly. It should not be assumed, without empirical investigation, that popular beliefs about justice are based on what is often loosely called ‘customary’ or neo-traditional institutions inherited from the colonial period. . . .
It is recommended that informal justice that is genuinely accessible and impartial is best offered by state-supported, modern paralegal-type institutions, for which Ghana’s CHRAJ can serve as an excellent model. The formal courts can also provide such a service whilst retaining the essential function of offering remedies based on legal rights.