Following the Money: Understanding Forum Shopping and the ‘Justice Marketplace’ in Sierra Leone

Introduction

The link between the characteristics of a country's legal system and the economic behaviour of its citizens is well established (Aldashev, 2009; D’Aoust and Sterck, 2016; Sandefur and Siddiqi, 2013). This is especially true in many post-colonial African countries, where these characteristics involve legal pluralism – the interaction of two or more normative orders, one of which is usually the official state law operating alongside (or rather above) customary, indigenous or religious law (Griffiths, 1986; Merry, 1988; Van Niekerk, 2001; von Benda-Beckmann, 2002; Woodman, 1996). It is, therefore, assumed that citizens are able to be selective about which aspects of the legal system they straddle in their pursuit of justice, however, it is defined. This phenomenon is sometimes known as forum shopping – the decision of parties to choose one forum (over another and potentially more obvious one) to institute or defend a suit, in order to gain an advantage or increase the chances of winning their case (Algero, 1999; von Benda-Beckmann, 1981; Whytock, 2011). Two somewhat opposing views permeate the scholarship on access to justice forums. On the one hand, monetary expenses are said to prohibit poor rural litigants and vulnerable groups from accessing formal justice institutions often concentrated in urban centres, thus pushing them towards rural non-formal, customary forums (Geraghty and Stapleton, 2007; Isser et al., 2009; Sandefur and Siddiqi, 2011). On the other hand, the alternative customary courts or forums have been shown to be patriarchal, reinforcing discrimination, especially against women, and non-compliant with human rights (Kanyongolo and Malunga, 2018; Quinn, 2022). Few studies have examined the costs of litigating in non-formal courts and whether or how these are prohibitive for citizens, or how they compare with formal courts such as magistrates courts (Isser et al., 2009; Khadiagala, 2001). Furthermore, even fewer studies have covered questions about why customary forums exist in urban areas, where state law and processes dominate, given that customary law is presented as a rural occurrence overseen by chiefs and traditional institutions (Tieleman and Uitermark, 2019).

This article aims to fill this gap by examining the economics informing litigants’ choices of judicial forums, while detailing the monetary transactions that establish the links between economic decisions and the specific characteristics of the chosen legal system. By focussing on barrays – the unofficial, unrecognised, customary courts in the capital city of Sierra Leone, this article contributes to a new analysis beyond state-centred legal pluralism that sheds light on ways in which ordinary people understand and engage with the law and (extra)legal processes. It argues that how money features in cases at non-formal, alternative forums such as barrays not only explains the attraction of litigants to these judicial forums, but also demonstrates how justice is understood and (re)produced in practice.

Much access to justice literature maintains that the absence or distance of judicial institutions and legal professionals like courts and lawyers, respectively, plays a key role in denying legal remedy to poor people (Botero, 2014; Dale, 2008; Maru, 2006). Most of this literature differentiates between urban centres, on the one hand, where justice services and institutions are concentrated, and where state authority is projected, and rural areas, on the other hand, where there is a paucity of official courts and legal professionals, coupled with structure-related deficiencies. This in turn creates a demand for non-formal or customary institutions, overseen by chiefs and traditional authorities (Harper, 2011; Isser et al., 2009; Lubkemann et al., 2011). This article challenges this binary depiction in two ways: first, it examines a non-formal, customary institution overseen by chiefs in the place of barrays in the capital city of Sierra Leone, where they are legally prohibited. Second, not only do barrays exist in an urban area, they have been shown to cost comparatively more to initiate a complaint. Why then would disputants in urban areas where formal legal institutions dominate, choose to pay higher costs to informal, customary courts instead of litigating in cheaper, available official courts? To understand this question, the article examines both the ways litigants conceptualise justice and how official (state) courts are failing through structure-related deficiencies.

These ‘structure-related’ deficiencies – formal court procedures, language, formality, and presentation – that often typify the state justice system, have also been shown to influence citizens’ views of the law and legal processes (Dale, 2008: 8–9). This in turn leads not only to the alienation of a large part of society, but also to contestations over the meaning and application of justice. Many scholars have long recognised that procedures are important in how justice is understood or experienced, implying that whether litigants are content with the outcome of a decision before an adjudicating forum, will depend on their judgement of its procedures (Bobocel and Gosse, 2015; Epstein, 2002; Rawls, 1972; Thibaut and Walker, 1975; Vermunt and Steensma, 2016).

Yet, procedures do not always cohere with client or victim satisfaction, especially where they are synonymous with more bureaucracy or formality, transforming into instruments of oppression and discrimination, and creating opportunities for elite capture (Abel, 1982a; de Sousa Santos, 1977). In socio-legal scholarship, the presence or kind of procedures in a judicial process often defines the nature of the justice forum. In the literature on popular justice, for example, the unpretentiousness of procedures, inter alia, constructs the image of ‘informal justice’ – an alternative or opposition to formal courts within state law (Abel, 1982b; Fitzpatrick, 1995; Merry, 1995). This has led to general agreement that (complex) procedures could become an impediment to whether and how justice forums are engaged, and a feature distinguishing so-called informal forums from state courts (Abel, 1982b; de Sousa Santos, 1984; Roberts and Palmer, 2005). At the same time, studies have shown procedural formality creeping into informal dispute forums both in terms of language and documentation (de Sousa Santos, 1977).

Furthermore, there is scholarship that backs the argument that money is not always the key factor, prohibitive or otherwise, that determines whether an individual can and does seek remedies for infractions of rights. Sandefur (2009: 953), for instance, describing litigants’ inaction when faced with breaches of their civil rights, maintains that cost is not the primary reason causing what she describes as ‘pervasive alegality’, because acting in some instances would have cost them no money (see also Sandefur, 2007). Similarly, von Benda-Beckmann (1984: 37) argues that when litigants do seek remedies, they will ‘base their choice [of forum] on what they hope the outcome of the dispute will be, however, vague or ill-founded their expectations may be’, instead of immediate monetary considerations.

This article supports this view and proposes further that neither the expenses of instituting action nor the possibility of winning or losing is prohibitive, when litigants pursue what they conceptualise as justice. Specifically, the article argues that while financial transactions – quantum, regularity, certainty, gains, and losses – may have a (peripheral) role in the tactical choices of forum, it is the incalculable costs relating to conceptions of justice – procedural, relational, and reputation-enhancing benefits – that matter to litigants. To understand the significance of the incalculability of these costs and why litigants gravitate towards one forum or the other, it is important to contemplate the different ways money features in customary forums such as barrays and in magistrates’ courts. This consists of an examination, not simply in terms of direct expenses, but more so in relation to minimising costs associated with delays and uncertainty, and maximising reputation-enhancing benefits.

Based primarily on data gathered during 14 months of fieldwork in Freetown, from June 2017 to September 2018, the article aims to map an empirical and historical understanding of law and dispute processes within the post-colonial and post-conflict context in which Sierra Leone is situated. My fieldwork was multi-sited both in terms of the number of barrays studied, and the observations of other dispute resolution forums, such as formal courts and police stations. In four barrays (primary sites) in the Calaba Town, Cline Town, Mountain Cut and Kissy neighbourhoods, selected because of the proximity to magistrates’ courts and/or police stations, I observed proceedings at least once a week for 14 months. The aim was to examine the relationship between barrays, and state institutions operating in short proximity and understand why (and how) litigants engage one or the other, or both. I visited 11 additional barrays as part of case tracking. Three of the four primary barrays (and 5 out of 11 additional barrays) were led by female chiefs.

I observed a total of 297 cases in barrays, concentrating on how cases were admitted, heard, concluded, referred, or taken to other forums such as the police and magistrates’ courts. Some of the cases were heard at night and almost all barray spaces were the sitting rooms, extended verandas, or other private places in homes of chiefs. As part of barray observation, 20 litigants (10 complainants and 10 defendants in different cases) were traced, to understand whether and how their court actions influenced or are influenced by, and the place these occupy within, their socio-cultural networks. All but five of the cases have a woman as a party, with eight of the cases having women as both complainants and defendants. Due to the short duration of barray trials – typically 1 day to a couple of weeks – the tracing occurred after the judgement stage. Following cases led to interactions with the police, municipal authorities, formal courts, legal practitioners, religious leaders, area headmen, landlords, and non-governmental organisations. In the course of these interactions, I conducted 40 semi-structured interviews, as well as reviewed hundreds of case files from barrays. Finally, I draw on 20 years of experience working on access to justice programmes, and practising law in the courts of Sierra Leone, straddling both state and customary institutions, while focusing on the experiences and logics of people engaging with these systems and practices.

This article is divided as follows: first, a summary of the Sierra Leone socio-legal context, including the development of legal pluralism and the creation of non-state, customary courts known as barrays in the capital city, where state power is projected and judicial institutions are predominant. Second, I describe the financial structure of the barray ‘system’, namely, the transactional relationships with different parties, and how this transforms the barrays into brokers (of justice). I depict a marketplace of justice, describing not only the actors and transactional costs, but also the commodification and negotiations of authority, recognition, and legitimacy. The third part uses case studies to examine how the transactional relationships described above explain the incalculability of costs, leading to litigants’ attraction to the barrays in three ways. In the first instance, it analyses the role of money in maintaining the barray system, such as enabling barrays to establish internal and external relationships which, ultimately, provide a lens for understanding how the barrays work, including relations with litigants, co-barrays, and external actors. Second, it examines how money is used in barray cases to showcase transparency and participation, through certainty and predictability of financial outcome. Third, the subsection analyses the role of money in the forum choices of litigants in both magistrates’ courts and barrays, including the willingness to choose more expensive options, and how this is connected to incalculable costs of status and conceptions of justice. I conclude by affirming that the impact of financial expenses on forum choice for economically challenged groups may be overestimated, and that there are incalculable costs such as minimising expenses associated with delays and uncertainty and maximising reputation-enhancing benefits which may compel litigants to spend more for what they consider as just.

Sierra Leone: Two Territories, Two Legal Systems

Sierra Leone's modern legal history has been traced to 1787, when the country became a settlement for freed slaves (Fyfe, 1962; Porter, 1966). By 1808, when it was declared a British Crown Colony, Sierra Leone was significantly smaller – less than the contemporary Western Area (see Figure 1). It was not until 1896, after Britain formally annexed the territories adjacent to its Colony through the Protectorate Ordinance, that the full area of present-day Sierra Leone was formed (Abraham, 1978; Caulker, 1976). Ironically, by unifying the two territories under one central colonial rulership, the Colony, consisting of the capital city Freetown and areas along the peninsula and coast on the one hand, and the Protectorate, encompassing the rest of the country governed by local rulers on the other hand, became even more separated by two distinct legal infrastructures.

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Figure 1.

Map of Sierra Leone.

Two parallel legal systems were created, one for the Protectorate and one for the Colony. In the Protectorate, ‘Indirect Rule’ was adopted through an administrative structure that utilised and institutionalised local kings and queens as Paramount Chiefs (Abraham, 1978; Acemoglu et al., 2014). The Protectorate Ordinance 1896 imposed a judicial structure which allowed these chiefs to adjudicate disputes relating to customary law, as long as they were not incompatible with laws in the Colony, and not repugnant to English legal principles of equity, good conscience, and natural justice. As a result, customary law – or at least a version of it – was recognised to operate alongside laws in force in the Colony. This was not unique to Sierra Leone. In fact, many authors have commented on the impact of this kind of arrangement on the development of customary law in Africa, including how colonial administrators designed control mechanisms which, in many instances, influenced the (re)interpretation of customary law (Bennett, 1991; Chanock, 1982, 1985; Moore, 1973; Snyder, 1981).

Meanwhile, the Colony was governed exclusively in accordance with the English legal system. Laws passed in Westminster in London became automatically applicable in Freetown. The logic for this strict division of the legal system across geographical lines during colonial rule has never been clear. Direct rule for the Colony meant the operation of the English legal system, irrespective of the inhabitants who were increasingly diverse. By this time, the Colony comprised several groups, such as white British administrators, military officials, missionaries, and traders; descendants of the early settlers now known as Creoles or Krio; later ex-slaves recaptured by the British Royal Navy and resettled in Freetown and, finally, a combination of original inhabitants and ‘immigrants’ from the Protectorate, who arrived in the Colony in search of opportunities and safety (Cole, 2006; Harrell-Bond et al., 1978; Porter, 1966). The fourth group is also referred to as natives. ¹

Development of Barrays in Sierra Leone and Impact of the Civil War

Despite this diversity, the Colony courts could not provide legal solutions to many disputes arising from customary law such as witchcraft or adultery brought by the immigrant natives (Banton, 1956; Harrell-Bond, 1975). As the numbers of natives grew, so did the associations they formed, so that by the early 1900s, they were producing ‘chiefs’ in the Colony, who formed barrays to perform judicial functions, outside the colonial legal architecture (Harrell-Bond et al., 1978). In direct response, the colonial government introduced, in 1905, the Tribal Authority Ordinance, a regulatory framework that recognised these chiefs and changed their nomenclature to ‘Tribal Rulers’ and later ‘Tribal Headmen’. This legislation allowed headmen to collect taxes and become intermediaries, while endorsing their authority to adjudicate. It was not until 1932, following a commission of inquiry into the conduct of Tribal Headmen, that this power was revoked, and their courts or barrays banned in Freetown, a position that, at least statutorily, continues to this day.

Thus, although changes were made during more than 150 years of colonial rule in Sierra Leone, such as the introduction of a leaner judicial structure, the basic legal architecture in the Colony and Protectorate, remained the same until Independence in April 1961, when the political unity between these two regions was complete. In the three decades between Independence and the beginning of the 11-year civil war in 1991 to the present day, Sierra Leone's legal system continues to be bifurcated along the lines of the Provinces (formerly Protectorate) and Colony (now referred to as the Western Area, where the capital Freetown is located). Local courts presided over by chairmen and administering customary law and petty offences, continue to operate alongside official courts, such as magistrates’ courts with appellate and supervisory jurisdiction in the Provinces. In Freetown, only official, state-sanctioned courts are allowed, as shown in Figure 2.

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Figure 2.

Sierra Leone dual legal system structure.

The uptick in urban migration in search of improved security and economic prospects following the civil war (1991–2002) and its aftermath, challenged the (post)colonial policy of two juridical territories. The Freetown population grew exponentially, with some studies citing a 217% increase (Dale, 2008; Spencer, 2016). Social services were overrun, producing wide-ranging security and access to justice problems, so that barrays and the chiefs that run them have become commonplace, despite their continued ‘illegal status’ (Koroma, 2021). Based on fieldwork data, there are more than 600 barrays existing in the Western Area compared to only 12 official magistrates’ courts for the region's one and a half million residents (Koroma, 2021). The inexplicable continuation of legal bifurcation in post-colonial and post-conflict Sierra Leone has created gaps for those sections of the population crossing between them. Many disputants in Freetown remain of the view that the official courts lack both the competence to deal with, and the appetite to accommodate, their claims. The barrays are filling these gaps by adjudicating those cases deemed not justiciable under the official state courts – witchcraft, disputes arising from customary marriage such as adultery, spousal and co-wife disagreements – as well as everyday disputes like public order offences, debts, and breach of contract. The cases in the latter category are justiciable in the magistrates’ courts, whose procedure in relation to litigants’ fees is discussed below.

Financial Structure of the Barrays

To understand why litigants will choose the barrays even though they are statutorily prohibited, it is important to investigate its financial structure (Figure 3) and examine whether and how it is designed to serve claimants and defendants alike, leverage relationships, including with state institutions, and negotiate authority and legitimacy as community-based courts.

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Figure 3.

The money trail at the barrays.

Litigation before the barrays typically commences as ‘summons’ paid by the person making the complaint (‘complainant’). Although other methods exist for initiating action, it is only in the ‘summons’ method that any fees are payable (Koroma, 2021). Summons fees vary from barray to barray, ranging from Le 35,000 (approx. £3.50) to Le 75,000 (approx. £7.50), and disaggregated into at least three separate costs, namely, ‘complaint’ fee, ‘bora’, and ‘service’ or ‘police transportation’ fee. A ‘complaint fee’ represents the amount an aggrieved person pays to register their grievance. Bora is a traditional token presented to a chief or respectable person, as a greeting or introduction to seek their attention. Like the complaint fee, the bora is retained by the barray as a ‘professional service’ fee, for accepting the complaint. Finally, the ‘service or police transportation fee’ is the amount set aside for facilitating communication and contact with the other party (defendant).

This component of the summons fee (service or police transportation fee) is deducted as soon as the summons is paid and given to a process server (usually a member of the official police force or a barray-appointed messenger). Often, ‘transportation’ fee does not require paying an actual fare as the defendants will be within a few minutes’ walk from the barrays. However, the fact that the service fee is handed over to the process server immediately and in the presence of the complainant – often, complainants are directed to subtract the service fee and pay to the server directly – is significant for two reasons. First, the direct payment incentivises the server, resulting in the instantaneous delivery of summonses, enhancing the standing of the barrays as an efficient system. Aggrieved parties are satisfied not only because they do not have to wait long to discover whether or when their disputes will be adjudicated, but the immediacy of the action also conveys an understanding that the barrays share in complainants’ urgency for a resolution. Second, by directly and openly paying the process server, the barrays project transparency, combined with a sense of participation and familiarity discussed in detail later in the article.

The barrays operate on a prepaid, equal payment system, where each party to the dispute contributes an equal amount which is deposited with the adjudicating barray before the start of the trial. When a defendant is served or informed about the complaint, they are required to match the summons fee paid by the complainant to indicate their readiness to challenge the matter in a trial. Matching the summons fees grants the defendant standing for the pre-trial stage, where rules are set, including how much each party will have to pay. These payments may be divided into two categories: procedural – costs associated with facilitating the case such as chiefs’ sitting fees and witness costs; and substantive – costs relating to the outcome. The procedural fees are not refundable regardless of outcome. The substantive fees, meanwhile, deal with two sets of payments that represent a form of security: a pre-imposed fine or kassi paid by each party for the infraction complained of, and an appeasing fee or m'bite (literally ‘bet’) that will be won by the successful party. The significance of the m’bite is analysed further in this article.

As they each pay half of the litigation costs, both the complainant and defendant can and do negotiate the exact amount of payment. This process of negotiations, which may take days, instil a sense of participation in, and ownership of the process. The barray officials play the roles of both co-negotiators – bargaining with the parties on the amounts for the procedural fees and mediators – ensuring that the parties reach an agreement on all payments. Without these initial negotiations, there will be no trial. Once a consensus is reached, each party deposits the full payment to the barray before the case proceeds to trial. Apart from the money paid to witnesses and to deliver the summons, the rest of the distribution of funds takes place after the case concludes.

Regardless of other orders of the barray such as public apology, at the conclusion of the case, the real consequence is that one party will lose their entire deposit, which is then distributed between the winning party and the barray. Thus, as Figure 3 shows, the losing party will forfeit the summons or matching summons fees paid to initiate or respond to the action, the pre-imposed fine or kassi and, more significantly the mbite. Conversely, the winning party will receive their full fees paid to initiate or respond to the action, the pre-imposed fine or kassi and, crucially, both bet fees. The barray will retain the loser's fees to initiate or respond to the action (less transportation fees), sitting fees from both parties, and the pre-imposed fine or kassi of the losing party. The arrangements above describing how and what money is won, lost, and retained by litigants and barrays, depict an organised, predictable system – a marketplace of justice – whose implications are analysed in the subsequent sections.

Toward institutional recognition and legitimacy

The case of ‘Ya Alimamy’, a female section chief in a barray in Eastern Freetown is illustrative of the importance of remaining in the barray business. Ya Alimamy sued eight individuals, including her 12-year-old daughter, before another barray for bewitching her court. With no new cases for 4 weeks, Ya Alimamy was convinced that the defendants had cast a spell on her court. The lack of new cases created financial difficulties which threatened the survival of her barray. She hired the ariogbo (a traditional team of fully masked ‘witch hunters’), who named the eight defendants, including her daughter. While the case was eventually discontinued because the key witness, the ariogbo, declined to testify, it does illuminate the double-edged nature of money in the operations of barrays. I learnt later that Chief Ya Alimamy had had a fractious relationship with her community after delivering several questionable decisions, so that community members and potential disputants collectively agreed to take their cases to other chiefs. This deprived Ya Alimamy of an important source of income and possibly even delegitimised her barray. Thus, with the benefits of receiving money from litigants, come the demands on barrays for efficient and communally acceptable forms of justice, the failure of which will result in abandonment.

In addition, money provides the barrays with the ability to build strategic networks and relationships that enhance their reach and effectiveness. These include both internal and external networks, including cooperation with other barrays and the national police. Internally, chiefs across tribal assemblages and geographical locations cooperate through several loose networks to preserve the barray system, by way of referrals, requests for information, and outsourcing specific services. Often, this cooperation requires submission to each other's jurisdiction, and the antecedent financial and other consequences that follow. The usefulness of cooperation is understandable; there are more than 600 barrays in this urban area of about one and a half million people, and only some form of collaboration can make the whole system effective. As one of the chiefs explained:

When you get a case and one or both parties are from a [distant] neighbourhood, you cannot just ask them to come to your barray. How do you find where they live? How will you know who you are inviting? So, I will prepare the summons [indicating the details of the party to be served as well as the charges], put it in an envelope together with a bora (token) and address it to the chief [of the barray] in the area. The bora is to show respect; to inform the chief that one of her subjects has been summoned to my court. The chief will go all out to make sure the person attends to my call.

If the role of money in creating and strengthening internal networks is openly discussed, the connections to external relationships are often guarded. Money plays a significant part in shaping these relationships. It is evident that through the ‘service or police transportation fee’, often paid to the Sierra Leone Police personnel, the barrays have succeeded in involving this important branch of the state in their processes. As explored elsewhere, the barrays’ relationship with the state police bears enormous benefits, not only in enforcing the attendance of defendants, but also in projecting (erroneously) state recognition and legitimacy of barrays (Koroma, 2021). It is perhaps on the latter point that the importance of money at barrays requires emphasis. By accepting fees for services or bora as a token of respect from the barrays, these external collaborators implicitly acknowledge the legitimacy of barrays.

(b) Predictability, transparency, and participation: routes to Barray successThe barray is expensive but not expensive. They [the chiefs] tell you how much you will spend. If you cannot meet that you will tell them. But after you pay, and the case begins you know you won’t have to pay anything again. So, you will prepare well before you begin a case, even if you must borrow money. (Barray Litigant)

While the rationale for the concept – to ensure that a party can comply with an adverse financial award – is comparable, there are marked differences between security for costs and the barray arrangement. The distinction is threefold: first, the requirement to pay into court is not incidental; it is not based on an application by one party, or the possibility that the other party may not be able to pay should there be an adverse order. It is central to the proceedings and, therefore, requires both parties (and not just one) to pay into the barray. Second, security for costs refers to only a portion of the financial value of the case – direct legal expenses such as solicitor's fees. It does not cover award for damages, for instance. Lastly, before an order for security for costs is made, the judge must be satisfied inter alia, that the party making the application has a reasonable prospect of winning.

Instead, the purpose of these payments is provided by how they are referred to both by barray officials and the litigants who make them. Fines or kassi, for instance, are meant to be a communally punitive measure for breaches of public order and decency, in which the absolved party will get a refund, while the culpable party will forfeit their fees, not to the opponent but to the chief (or barray) on behalf of the community. Witness fees provide another example of the specificity of payments into court. Although they are meant to support witnesses’ transportation and compensate for their time, witness fees serve another important role. By insisting that litigants deposit witness fees before the trial, barrays assume a brokerage function and transform witnesses’ role from testifying on behalf of one party to becoming agents of the barrays. This is exemplified in the elaborate oath-taking procedure for witnesses, where the witness fee is morbidly referred to as kasankay, the burial garment (or money to buy it), to remind witnesses about the consequences of giving false testimony. Another payment into the barray before trial is the ‘sitting or adjudicating fee’ as compensation to the barrays for enrolling their expertise.

The payment into court that cements the practice is the m’bite or bet. It embodies the main financial ‘prize’ of litigating at the barrays. Not only is it the highest individual payment, the m’bite also represents the challenge between the parties; the trophy to be won or lost. It is the only payment that involves a zero-sum game, where the losses of one disputant are the direct and exact gains of the other. It is both a deterrent and an incentive. Litigants have highlighted the m’bite as a key attraction to barrays.

It can be argued that from the outset, the parties know how much (and for what) they spend. Thus, the decision to proceed with litigation is made, knowing what the consequences of a successful or failed action will mean financially. Like the earlier quote from a barray litigant, certainty and predictability compel proper planning so that the decision whether to institute or defend an action at the barray becomes a considered one. Therefore, by these known risks and payment destinations, barrays have created transparency, obviating the need for a war of attrition where parties outbid each other to legal victory. Even as a social exchange, the barrays are uncommon, in that the known risks operate for both parties, so that it incentivises participation in the system even with the prospect of losing. For litigants, the predictability and transparency of, as well as participation in, a communal effort are the incalculable costs that define ‘justice’ and help to explain why they gravitate towards barrays.

(c) Incalculability of costs

These two cases – as with many like them – are justiciable in both barrays and official magistrates’ courts. Therefore, why would Mamanie and Isatu choose the barrays to initiate their respective actions? The case studies demonstrate that even for litigation – arguably the costliest component of dispute resolution – the amount a litigant may spend is not a barrier to initiating a claim. Other ‘costs’ beyond direct expense become plausible, such as the desire to participate in a neighbourhood court, or to maintain or maximise one's reputation. Mamanie wanted to redeem her reputation first and foremost and was adamant that she was prepared to ‘put [her] entire business capital into this case’. She explained:

Isha said all these things about me in the hearing of many people in the compound. Those same people were now expecting my response. [But why choose the barray?] At the barray, they can all come and see for themselves. There is no secret…. When she apologised to me and my husband, I didn’t need to explain that to anyone else (there was no ambiguity in her action). The matter is now settled. I have forgiven her, and we are all at peace once more in the compound.

Likewise, when Isatu (osusu master) decided to commence proceedings against Pa Brima, she had no hesitation to spend Le 65,000 (approx. £6.50), even though this would have real-life consequences on her and her family. Isatu lived in the Wellington Area of Freetown (a 10-mile commute to her trading spot) with her husband and two children. Her husband, a truck driver, lost his job a few months back. He invested most of his severance pay into Isatu's business – plastic containers and shoes – so that she would support the family. Isatu did not finish secondary school but has high hopes for her daughter 9, and son, 7. She wanted the daughter to be a lawyer – ‘she is very argumentative’ – she told me; and the son to be a doctor so that he could take care of her when she was old. Isatu was well respected among her fellow traders. She explained that she organised the osusu as a mini bank, so that upon receiving the bulk amount (Le 3 m or approx. £300), she would diversify her business with food items, and buy a television set so that her children would stop going to the neighbouring house to watch movies. Isatu said she was making less than Le50,000 (approx. £5) profit daily, and with food costs at home, together with school commitments for the children, it meant she had to dip into her capital. She feared that if this continued, she might not have a business to run in less than a year. The osusu was an escape from this eventuality.

Isatu had a lot to lose when Pa Brima's refusal to pay his weekly contribution threatened the success of the osusu scheme. It is worth understanding why she was prepared to spend Le 65,000 (approx. £6.50), an amount she could hardly afford without cutting down on food or necessities for her children, just to initiate an action at the barray. Noting further that the summons fee represents a small portion of the overall costs of litigation at the barrays, Isatu could easily spend 10 times this amount to secure a hearing. She explained that as osusu master, she was responsible for setting up the scheme: fixing the amount and regularity of payments (whether daily, weekly, and so on), and deciding on the membership (how many and, more importantly, who). She insisted that people would only join an osusu if they trusted the osusu master, to guarantee continued payment by all members, including those who would have received their contributions. For Isatu, the trust, respect, and confidence which she enjoyed at her workplace were on the line. The protection of her status in society overrode any immediate or future considerations of financial loss. She had to be seen to be doing something drastic. Pa Brima did not contest the complaint; he paid up his contribution, in addition to refunding Isatu's summons fee and paying a fine to the barray.

In both cases, the outcome not only validated the decision of Isatu and Mamanie to spend more money at the barrays, but it also won the approval of the osusu members and neighbours, respectively, thereby preserving their reputations in their communities. This speaks to the importance of recognising an amplified perspective of justice: one that is no more about seeking to protect the integrity of the process in the eyes of the public, than it is about validating the actions of the complainant to secure the public's approval.

Barrays Versus Magistrates’ Courts: The Optics and Choices

Litigants and barray officials alike will readily provide comparisons of the role money plays in judicial procedures at both magistrates’ courts and barrays. A common theme in these comparisons was that for magistrates’ courts, there was no possibility to recover your expenses (much less make a gain), compared with the safety of the m’bite at the barrays. Furthermore, as a result of the adversarial system of formal courts, in which a complainant is only a witness, the procedure at magistrates’ courts limits participation and influence. For instance, many barray trials happen on Sundays or in the evening based on the availability of the parties. In contrast, the socio-legal context, including fewer magistrates’ courts outpaced by cases, means that case backlog is commonplace in official courts, leading to inordinate delays and tight hearing schedules that fit the courts’ (and not litigants’) availability.

Nevertheless, barrays are not always the preferred destination for disputants. While their role as part of the state-recognised judicial apparatus has not dissuaded the existence of barrays, magistrates’ courts potency to determine disputes has not diminished. In effect, disputants can choose either to take their complaints to the magistrates’ courts or the wide selection of barrays. Furthermore, it is contended that like in the case of the barrays, the decision to go to the magistrates’ courts is often unconnected with affordability.

When ‘Ya Marie’ appeared at the Ross Road Magistrate Court in Freetown, she was pleased that she had engineered the prosecution of the defendant, ‘Joseph’. Ya Marie, landlady and owner of a provisions shop, had reported her tenant, Joseph, to the local police station a week earlier for smoking marijuana. Joseph had a history of insulting the landlady, for which there were several suits at the barrays, awaiting his attendance. On this particular day, when Ya Marie threatened to go to the police if he smoked in the compound, Joseph remarked sarcastically ‘you nor get da trosis dae’ (‘you don’t have the trousers (balls)’). Feeling slighted, Ya Marie did not only make the report, but she also agreed to testify against the defendant. As a bonus, the police included a separate charge of ‘insulting language’ on her behalf. At the Magistrate Court, an experienced police sergeant, was in charge of the case. As it was a public prosecution, Ya Marie was not required to pay any fees either at the initial stage or at any stage of the trial. However, when Joseph hired a lawyer to defend him, Ya Marie felt this was a snub on her reputation. She told me: ‘[H]e wants to show he has money. He thinks he's the only one who can afford a lawyer. I’ll show him I have lawyers too’.

She then hired two lawyers to associate with the prosecution, a legally inconsequential step, given that associating lawyers have no lead role in the case. It is more performative than it is about substantive contributions to the case, and it is not cheap. By Ya Marie's admission, paying both lawyers an initial fee of Le 500,000 (approx. £50) each, has wiped out her savings. More importantly, unlike in the barrays, there is no possibility of recouping any of it, as the likely outcome of criminal cases of this kind only include fines (paid to the state), imprisonment, or caution. As with Mamanie and Isatu at the barrays, Ya Marie's use of lawyers even when she did not need to, arises from a particular perception of justice. In hiring two lawyers, Ya Marie believed that she had preserved, if not projected her status in the community, by outmatching Joseph (who hired a much-needed lawyer to avoid jail). No other consideration mattered – at least for the moment.

Similarly, Aunty Betty sued her co-tenants, Mr Abu, and his wife (defendants) at the Magistrate Court in central Freetown. Earlier, she had made a report to the local police station that defendants had accused her of bewitching their son. She explained that the couple had attacked her in the early hours of the morning, alleging that their sick son muttered her (Aunty Betty's) name in his sleep, exclaiming repeatedly: lef me, lef me, ar nor want am (leave me, leave me, I don’t want it). While the police were sympathetic – they even invited the couple to the station – she told me they had advised her that they could not prosecute the witchcraft allegation. Although the police were prepared to consider alternative offences, she could not agree to that. She wanted the couple to be locked up. Disappointed, she contacted a lawyer, who explained to her that by instituting an action based on provisions of the Public Order Act 1965, there was an option (not a likelihood) that the couple, if found culpable, could go to jail. Even though the prospect of the couple serving jail time was remote, Aunty Betty disclosed that being represented by a lawyer boosted her standing in the neighbourhood. Using the private prosecutions route, and paying Le 1,500,000 (approx. £150) as an initial fee to the lawyer, Aunty Betty's case was filed based upon a provision which makes it a crime punishable by imprisonment of up to 3 months or a fine (or both) if a person:

makes use of any threatening, abusive, insulting or obscene language, gesture, or behaviour, or says or sings any insulting or offensive song or ballad or makes any noise with intent to provoke any other person to commit a breach of the peace; … or calls any person by a name or description other than his own, with intent to insult or annoy such person. ³

Aunty Betty, like Ya Marie, Isatu, and Mamani have, in various ways, been driven by a particular understanding of justice – participation, involvement in community effort, retribution, community validation – that also included a desire to elevate or maintain their statuses in society. This, in turn, has shaped their decisions about choice of forum, and the performances and associations required in the process.

Conclusion

The role of costs in accessing justice forums has received considerable discussion in legal empowerment and access to justice literature. However, few studies have focused on forum choice in urban rather than rural settings. Often, non-state or customary courts are presented as a rural occurrence overseen by chiefs and traditional institutions, while state courts are equated with urban areas, where state authority is projected (Harper, 2011; Isser et al., 2009; Lubkemann et al., 2011). Moreover, much access to justice literature maintains that the absence or distance of formal judicial institutions plays a key role in denying legal remedy to poor people, and pushing them towards (cheaper) informal, customary institutions (Isser et al., 2009). Furthermore, the comparisons in existing literature are between official courts and local, religious or customary courts recognised by the state under weak legal pluralism. As a result, it has not moved beyond the binary characteristics between state and non-state to consider not only the connections between costs and conceptions of justice, but also the overlap between state institutions and (unrecognised) customary courts or forums.

The present article fills this gap by documenting costs and monetary transactional processes in both customary, unofficial barrays and official magistrates’ courts in order to establish the link between the economic decisions of claimants and how they conceptualise justice. At the same time, by examining how and why money fuels forum choice in a specific context, this article contributes to a new analysis that moves beyond a state-centred understanding of legal pluralism. Forum shopping has been examined with added significance. The fact that barrays even exist in the capital Freetown – the epicentre of Sierra Leone state law, with its courts, lawyers, police, and prisons – demonstrates that even where the State restricts the adjudicating option, litigants would establish or invent, for what they consider as justice, alternative judicial forums like barrays, even if they are considered illegal.

Furthermore, the article's examination of financial transactions at barrays and official magistrate courts has provided a lens for understanding the dynamics of disputes, socio-economic relations of disputing parties, how and why different actors pay money, and whether and how it shapes both the system and the object of justice in urban Sierra Leone. I have argued that litigants’ choice of judicial forum is not determined by (higher) costs – how much they pay to institute an action or the extent of the potential litigation outlay. Instead, the article has demonstrated that incalculable costs relating to conceptions of justice – procedural, relational, and reputation-enhancing benefits – matter more to litigants and determine whether they choose magistrates’ courts or barrays. As the demography of many African cities continues to change due to migration from rural areas to the city, this article contributes to a new understanding of how and why legal systems evolve to aid or constrain the legal needs of (new) city dwellers, including the financial (dis)incentives for choosing one or the other arena for litigation.