Interface of Formal and Informal Peacebuilding Mechanisms in the South of the Sahara

Abstract

Contemporary peacebuilding is dominated by the liberal peace model, which assumes that democratic governance, rule of law, and market-based reforms universally promote peace. However, the liberal peace has not fared well in the global South, where colonial legacies influence the interaction of normative orders. Scholarly attention has thus turned to indigenous mechanisms, which work well within their own socio-cultural settings through their promotion of dialogue, compromise and group welfare. However, literature is thin on the interface of formal and informal mechanisms of peacebuilding in the south of the Sahara, especially their standardizing influence. Drawing on key informant interviews in Nigeria, South Africa and Somaliland, this article analyses these mechanisms, arguing that indigenous processes have come under the shadow of neoliberal human rights. It finds that poor management of legal pluralism hinders policy engagement with informal mechanisms and suggests a theoretical platform for harmonizing informal mechanisms with institutionalized frameworks.

Keywords

Legal pluralism liberal peace indigenous peacebuilding informal mechanisms sub-Saharan Africa

Introduction

In what ways do indigenous and State dispute resolution mechanisms interact in sub-Saharan Africa? Importantly, how does their interaction reflect in the liberal peace debate? These questions matter because the mainstream peacebuilding discourse marginalizes indigenous mechanisms (Ginty, 2008), which are associated with “traditional, customary,” and “informal” processes. This discourse was influenced by the formation of the United Nations Organisation, the adoption of the Universal Declaration of Human Rights, and the erosion of State sovereignty (Loughlin, 2016). It is dominated by Euro-American forms of peace-making and state-building support, also known as liberal peacebuilding or liberal peace (Jabri, 2013). Liberal peacebuilding denotes peace promotion initiatives that emphasize the importance of democratic governance, market-oriented economic reforms, the rule of law, and post-conflict reconstruction (Selby, 2013). It assumes that democracies are less likely to engage in conflict because their institutions possess checks and balances that inhibit war (Paris, 2010). It believes that a strong market economy contributes to peace by alleviating poverty, and does not hesitate to employ external intervention to enforce peace (Lemay-Hébert, 2013). However, the liberal peacebuilding approach has taken a knock in the past two decades.

Firstly, liberalists are accused of assuming that democratization programmes, rule of law initiatives, and market-based reforms universally promote peace. This assumption underlies the democratic peace notion, which is intellectually similar to the civilizing mission of European colonialism (Diala, 2020; Paris, 1997, 2002). Paris (2002: 638–639) observed that “today's peacebuilding operations convey norms of acceptable or civilised behaviour into the domestic affairs of less-developed states. … Peacebuilding operations embody a type of globalisation … of the very idea of what a state should look like.” Due to the standardizing approach of liberal peace-making, it tends to be top-down, technocratic and ill-equipped to handle culturally influenced behavior (Ginty, 2008). Accordingly, its initiatives lack the cultural credibility required for sustainable peacebuilding.

Secondly, the liberal peace model is accused of marginalizing cultural pluralism. Cultural pluralism abounds in sub-Saharan Africa, where European colonial legacies contribute to conflicts. Here, Western Europeans had lumped many communities with disparate customs and languages into nationhood. Moreover, they superimposed their own legal systems over indigenous orders, resulting in lopsided legal pluralism—that is unequal co-existence of normative orders with divergent cultural origins. Poor management of legal pluralism often hinders efforts to resolve disputes (Diala, 2021). Regrettably, international peace-making efforts often take the form of elitist rule of law or governance reforms, which barely consider the complexities of cultural pluralism. The resultant peacebuilding employs an ineffective surface approach by focusing on the manifestations of conflicts instead of their underlying causes (Darby & Ginty, 2003).

Furthermore, the asymmetric nature of many contemporary conflicts presents challenges for the interventionist style of liberal peace-making. In what may be described as a post-liberal peace period, policy attention is turning to informal and indigenous processes. These informal systems are shown to be “participative, culturally appropriate, low-cost, and sustainable” (Ginty, 2008, p. 120). By championing their usage, a “local turn” in peacebuilding scholarship has emerged. The shift is based on “an increasing acceptance that local sources of peace and security play important roles in the production of social order” (Hunt, 2017, p. 3; Richmond & Mitchell, 2012). Arguably, the “local turn” in peacebuilding ought to focus on the interface between formal and informal peace processes, or what scholars call hybrid peace (Boege et al., 2009; Heathershaw, 2013; Laffey & Nadarajah, 2012).

However, as shown in Part three of this article, indigenous forms of peace-making are not as pristine or as widely accepted as often portrayed. This article argues that indigenous peace-making has come under the shadow of globalization, especially industrialization, Eurocentric education, the feminist lobby, constitutional bills of rights, and neoliberal law reforms. As Snyder (1981), Juma (2001), and Diala (2021) have shown, many indigenous peacebuilding mechanisms have disappeared or adapted substantially to socioeconomic changes. This is significant for their interface with formal mechanisms.

On the one hand, indigenous peace processes are often unwritten, undertaken with patriarchal customary laws, and preserved through rituals and folklore. These features make it difficult to assess their effectiveness and replicability outside their socio-cultural settings. On the other hand, indigenous peace processes encourage dialogue, compromise and group welfare because of their grassroots nature (Austin & Fischer, 2011). These traits make them more effective in their own environments than Western models. However, not much is known about the interface of informal and formal mechanisms of peacebuilding in the global South. Even less is known about how these mechanisms influence each other. Accordingly, this article examines the interface of informal and formal peacebuilding in the south of the Sahara and measures for harmonizing indigenous mechanisms with institutionalized systems.

An explanation of the methodology follows this introduction. Thereafter, indigenous peacebuilding is conceptualized, including nomenclatural challenges of using the word “indigenous.” Next, an overview of institutionalized peacebuilding is provided, followed by a probe of the interface of indigenous systems with institutionalized mechanisms. Thereafter, the article presents shared features of informal and institutionalized peacebuilding. It situates indigenous mechanisms within the complexities of legal pluralism in the South, using field examples from Africa and practices from other parts of the world. It concludes with recommendations for harmonizing indigenous and institutionalized peace mechanisms.

Methodology

Although primarily conceptual, this article uses field insights to offer a new way of understanding the interaction of informal and institutionalized peacebuilding processes. It uses data from research funded by the University of Cape Town and the South African National Research Foundation between 2016 and 2024. The first project (2017) is titled “Somaliland customary law: An instrument for conflict prevention and peace building.” The second project (2017–2018) examined the indigenous laws of commercial contracts in southern Nigeria. The third project (2022–2024) probed the foundational values of indigenous laws in South Africa. These projects involved non-participant observations, focus group discussions and structured interviews. The author studied the oral histories of Somali communities and observed three dispute resolution mechanisms in Nigerian markets. Semi-structured interviews were held with key informants on the core values of indigenous laws in Nigeria, South Africa and Somaliland. Individual, face-to-face interviews of about one hour were held with over one hundred traders, traditional leaders, market arbitrators, customary court judges, non-governmental organizations, and social welfare officials. Altogether, four focus group discussions were held with the councils of traditional leaders in Nigeria and South Africa. Two meetings each were held with eleven social welfare officials and two non-profit organizations working on women's rights in Nigeria. The questions and meeting themes covered market laws, matrimonial property rights, judicial attitudes, and succession rules.

Ethics approvals were obtained from the University of Cape Town, the University of the Western Cape, the University of Hargeisa, and market union authorities in southern Nigeria.

The data collected from the field projects were thematically analyzed to identify themes and patterns of indigenous dispute resolution. The author's expertise in African legal pluralism guided this process. Where appropriate, excerpts from field interviews are quoted without compromising the identity of the informants. However, due to the conceptual nature of this article and its length restrictions, detailed case studies are not provided.¹

Nature of Indigenous Peacebuilding

Generally, indigenous peacebuilding refers to peace-promotion and dispute resolution mechanisms that owe their origins to native norms (Murithi, 2006). The actors involved include traditional rulers, market leaders, tribal elders, ancestral priests and secret societies. Also, they encompass social groups such as age and gender-based associations, vigilante groups and civil society organizations. Indigenous peacebuilding is characterized by trust, reconciliation and restoration of relationships during or after conflicts (Ginty, 2008). Its advantages include easy access, familiarity with adjudicators, “the possibility to speak the local language,” and cultural legitimacy (Hinz & Patemann, 2006). Its disadvantages include gender inequality, violations of human dignity, lack of uniform standards, and poor procedural fairness.

Furthermore, indigenous mechanisms are sometimes contested by some community members (Lundy et al., 2022). The reasons include corruption, political interests, discriminatory practices, and elite capture of traditional authorities, which affects their legitimacy (Quinn, 2022). Significantly, the legitimacy of indigenous mechanisms is grounded in community values. However, the social capital of these values is under pressure from globalization. Unlike the communalism of pre-colonial life, individualism and urbanization are breaking down the communal ties that underpin traditional mediation (Berger, 2018). For example, an offender who resides in the city may not care about social ostracism, which is the primary enforcement tool of indigenous systems. Also, as elders die without recording oral traditions, the specific nuances of peacebuilding mechanisms are lost, which could make them feel invented (Ranger & Hobsbawm, 1984). Nevertheless, indigenous mechanisms enjoy considerable patronage (Asaaga, 2021). The key issue is the perceived fairness of their outcomes. In this context, a recent study of women's choice of dispute forums in the Limpopo province of South Africa found that preference for formal courts is driven by constitutional guarantees of fairness. There is also distrust of traditional leaders, who are perceived to be corrupt, patriarchal or biased against widows and divorcees (Mandisodza, 2025). As I shall show, people's forum shopping influences the interface of formal and informal peacebuilding.

Generally, indigenous dispute resolution is informed by principles of respect and responsibility, which are embedded in a holistic view of the cosmos. An example is Ubuntu, denoting humanness in southern Africa and respect among Canadian First Nations. During our interviews in 2022, a Venda chief stressed how “we resolve our disputes with the spirit of Ubuntu.” Bretzlaff (2022) noted section 3.4.1 of the Statutes of the Carcross/Tagish First Nation as follows:

To be respectful is to have an attitude of caring about people and treating each of them with dignity. “Treat everyone how you want to be treated” is … a core law. Its importance crosses over into the food we eat, the materials we need for shelter, the water we drink, the land we walk on, and is a connection to the spiritual essence of our Ancestors.

Significantly, indigenous peacebuilding seeks to promote “restorative justice where reconciliation and forgiveness are paramount for peaceful coexistence” (Omona, 2020, p. 1). It is often achieved through mediation, negotiation, arbitration, adjudication and reconciliation. Its accessibility and community focus make it a preferred option for people in rural areas (Koyana, 2011). As shown later, their methods sometimes interface with institutionalized mechanisms. To appreciate this interface, the word “indigenous” needs to be deconstructed.

Traditional, Customary, or Indigenous law?

Unlike its portrayal in mainstream literature, the word “indigenous” is not synonymous with “traditional,” nor does it really convey the same meaning as the word “customary.” Rather, “traditional” denotes a long-established usage. The problem is determining what constitutes long usage in the context of social change. For example, is five decades sufficient to make a practice “traditional,” or does a radical event like European colonialism demarcate what constitutes traditional practice?

On its part, the word “customary” usually denotes current practices, which may be accompanied by a sense of obligation. Just as the word “traditional,” there is an element of habitude involved in customary behavior. However, in a normative sense, its most important feature is a sense of obligation, which helps to distinguish customary norms from mere social habits. For example, brushing one's teeth is a hygienic social habit that cannot be regarded as an enforceable custom. However, a display of disrespect by a youth to an elder in a public forum would attract punishment.

A sense of obligation in habitual practices invites pressure from community members for conformity to these practices. By exerting this pressure, community members endow habitual practices with the character of law. In a focus group discussion in 2017, a traditional leader in southern Nigeria explained this character as “omenani” (denoting tradition).² Fuller argued that an obligation is not incurred in human actions “simply because a repetitive pattern can be discerned …. Customary law arises out of repetitive actions when and only when such actions are motivated by a sense of obligation” (Fuller, 1969, p. 16). So, how does “indigenous” differ from “traditional” and “customary,” and why does this matter in peacebuilding discourse?

Unlike “traditional” and “customary,” the term “indigenous” denotes something that originates in a particular place and remains largely unaltered. In the context of long usage, it shares the trait of habitude with the terms, “customary” and “traditional.” However, determining habitude is complicated because many indigenous peacebuilding processes have adapted to socioeconomic changes. While a practice may be traditional but not indigenous, an indigenous practice is almost always traditional. The three examples below demonstrate how “traditional” and “customary” laws evolve from indigenous practices.

The first example comes from Nigeria. In many parts of this region, serving kola nuts to guests is an established indigenous practice of hospitality. In fact, serving kola nuts is mandatory in some social gatherings due to its spiritual symbolism as a covenant of harmony between hosts and their guests (Obineche, 2017). However, research informants are increasingly replacing kola nut with (non)alcoholic drinks, beverages, biscuits, and similar snacks. Although these substitutes are accepted as traditional hospitality, including in rural communities (Unya, 2021), they are not indigenous because they are products of European colonial contact.

The second example is from Brazil. Like elsewhere across the world, oath-taking to establish the truth during dispute resolution is, on the face of it, an indigenous practice. But the form these oaths take may not be indigenous. Thus, swearing by a deity such as Mbói Tu'I, the Brazilian serpentine river god,³ is indigenous, but swearing by the Christian Bible is traditional or customary. This is because Christianity is not indigenous in most parts of the global South.

The third example is from North America. In Canada's formal and informal courts, the use of English or French instead of an indigenous language is arguably customary. However, in some communities that attach spiritual significance to their language, any peacebuilding resulting from the use of English is hardly indigenous. For example, the Stó:lō people believe that their language (Xwélmexwqel or Halq’eméylem) denotes their entire existence and metaphysical approach to the Universe.⁴ Thus, if English is used to resolve a Stó:lō dispute, it would represent the Western mindset of Canada's formal justice system rather than the Stó:lō worldview (Palys & Victor, 2007).

The above examples demonstrate how social changes alter indigenous practices. Arguably, it is less problematic to use the word “informal” than to use “indigenous” peacebuilding. But can we really say that adapted forms of indigenous practices remain indigenous? If such adaptations are no longer indigenous, can they be said to be customary or traditional merely because their observance is habitual? These questions are significant for the interface between informal and institutionalized peacebuilding.

Unpacking Peacebuilding Mechanisms

Peacebuilding is used here in a judicial sense.⁵ Since formal justice systems are well known, I provide only a summary. These systems denote the peacebuilding structures, policies, and frameworks of the modern state. They involve layered processes and established procedures that often stipulate written rules for complaints and evidence (Forsyth, 2007). These rules allow legal representation and guarantee the right of appeal. Institutionalized mechanisms are empowered by government regulations and operate within the framework of official courts and law enforcement (Lyons, 1972). Typically, they involve third-party actors such as prosecutors, bailiffs, attorneys, and judges (Sullivan, 1975). Their outcomes are binding and enforceable through the instruments of State coercion (Dyzenhaus, 2004).

With their adversarial, winner-takes-all orientation, institutionalized mechanisms are limited in their ability to provide satisfactory justice (Nolan-Haley, 2015). Indeed, Price (2018, p. 393) noted that “many African citizens have lost faith in their [formal] judicial system's ability to provide timely or proper access to justice.” Since this situation potentially encourages conflict by eroding confidence in the judicial process, best practices should be sought elsewhere.

Interface of Informal and Institutionalized Peacebuilding

The connection between formal and informal peacebuilding deserves close attention for two major reasons. Firstly, the intimidating backlog of cases in many African countries promotes the perception that rural dwellers find it difficult to obtain justice in the formal courts (Weeks, 2017). Even when ill-founded, such perceptions could encourage people to resort to self-help unless they can turn to informal mechanisms. Secondly, the parties in informal dispute resolutions operate in social fields that are buffeted by acculturation, industrialization, capitalism, feminism, statutory procedures, technocratic law reforms, and other socioeconomic changes. Many litigants and arbitrators have one normative foot in the village and the other foot in cities (Diala, 2025). Accordingly, some indigenous mechanisms have adapted to modernity by resorting to the standards and procedures of the formal courts.

In several aspects, informal and institutionalized peacebuilding mechanisms are only differentiated by their procedures (Lundy et al., 2022). Whereas informal mechanisms in the global South utilize measures developed within their natural socio-cultural settings, formal mechanisms employ Western legal standards that were superimposed by European colonial powers (Chen-Wishart, 2013; Joireman, 2001; Miyazawa, 2021). Generally, informal mechanisms are notable for their simplicity and participatory nature. For example, many rural communities in South Africa often resolve disputes during meetings under a large tree. Scholars affirm that these dispute resolutions aim at restorative justice for the wronged party (Cappelletti & Garth, 1977). In these meetings, chiefs, elders, and priests apply generally unwritten customs in context-specific ways that prioritize the overall welfare of the community over rigid rules (Holleman, 1973; Ubink, 2016).

However, disputes are increasingly resolved in town halls and government-approved customary courts. Influenced by economic realities, the feminist movement, social media, and constitutional bills of rights, some informal mechanisms are using principles and procedures that are alien to indigenous culture. For example, in the Daarood and Isaaq clans of Somaliland, jurisdictional lines are blurred between customary, religious and state courts. In Nigeria, customary courts have become procedural clones of Western courts, while market tribunals have adopted the procedures of state courts. For example, a market union in Lagos Island comprises an 18-person committee that serves as a “court.” Usually, it invites disputing traders, interviews them separately, conducts a formal hearing in which parties call witnesses, and then issues judgement. Appeals lie to a seven-member “Disciplinary Committee.” The secretary of a Market Peace and Disciplinary Committee in Enugu State boasted in 2017 that the logo of his committee is the same blindfolded lady justice of State courts.

Shared Features of Formal and Informal Systems

Below are some features of dispute resolution shared by formal and informal systems, which offer prospects for streamlining formal and informal peacebuilding mechanisms.

Sense of Obligation

A sense of obligation towards practices underlies both informal and institutionalized dispute resolution (Hund, 1984). For institutionalized mechanisms, a sense of obligation is evident in the threat of sanctions and enforceability by law enforcement agencies (Hund, 1998). For informal mechanisms, however, it is not so obvious. Nevertheless, a sense of obligation can be inferred from the fact that disputants in Lagos pay a fee to indicate their submission to the jurisdiction of a market tribunal. In KwaZulu-Natal, this fee was usually reclaimed by the successful party where the rules permitted (Holleman, 1973). In an interview in 2017, a Somali clan head stated that “Fees are paid by the claimant before the commencement of litigation.”

Also, a sense of obligation may be inferred from the restorative aims of dispute resolution. For example, traditional councils in Limpopo seek consensus during dispute resolutions. In this context of restorative justice, a sense of obligation is strongly linked to the concept of fairness.

Fairness

Informal dispute resolution mechanisms are known for their flexibility, accessibility, and quick dispensation of justice (Aiyedun & Ordor, 2016; Henrysson & Joireman, 2009; Uwazie, 2014). In many traditional societies, these mechanisms provide people with opportunities to obtain remedies through relatively inexpensive, familiar methods that have been tested over time (Cappelletti & Garth, 1977). Due to the close-knit nature of traditional societies, the community is often involved in dispute resolution, since conflict between individuals affects the whole community (Roberts, 2013).

The promotion of fairness straddles dispute resolution in both informal and institutionalized systems. However, while speed and subject expertise are traits of informal systems, it is arguably an ideal in institutionalized systems. For example, among the Shona people of southern Africa, hearings are presided over by traditional leaders supported by assessors who are knowledgeable about the law. These assessors operate in ways that resemble the jury system in English courts. By hastening dispute resolution, their promotion of fairness appears to influence people's choice of dispute forums.

Forum Shopping

Forum shopping denotes a complainant's search for a dispute resolution environment with favourable accessibility, laws, procedures and personnel. Here, statutory regulations play a huge role. A focus group informant in South Africa stated that “The royal house had powers to resolve property rights, but due to the introduction of new laws and the Constitution, such powers are now allocated to the Master of the High Court.” A member of the Mphaphuli traditional council added that “people prefer to go to the High Court [and] disregard the decision and powers of traditional leaders.” Forum shopping demonstrates the choice of law dynamics of legal pluralism in Africa (Woodman, 2011).

Broadly, there are two forms of legal pluralism in the South. The first is strong or deep legal pluralism, which arises when normative orders exist without requiring the approval of the State for their legitimacy (Rautenbach, 2010). The degree of autonomy between statutory and non-statutory orders in deep legal pluralism is unclear. Generally, autonomy seems to exist when the State is not obliged to “incorporate cultural or religious forms of non-state law into state law” (Rautenbach, 2010, p. 146). The second form is weak or state legal pluralism. It arises when normative orders within a state's jurisdiction are acknowledged and, in varying degrees, incorporated into the State legal system (Woodman, 1996). Irrespective of its form, legal pluralism affects peacebuilding because the regulation of non-State systems blurs normative lines between the regulator and the regulated. Below is a prime arena of these blurred lines.

Procedural Interface

In sub-Saharan Africa, multiple layers of courts exist, notably State, non-State, and religious courts. State courts are Western-style tribunals that emerged from the legal systems imposed by European colonizers. As the lords of the normative food chain, State courts interpret the law, hear appeals from religious and customary courts, and issue rules and directives.

Religious courts base their procedure and decisions on religious rules. They are sometimes established by the government. Importantly, their judges are usually members of the religious community whose laws are in dispute (Benhalim, 2018). Although there are Christian, Jewish, and Buddhist tribunals, most religious courts adjudicate issues of Muslim personal law, such as burial, marriage, succession, and property rights.

The third hierarchy is customary courts, which are also referred to as traditional courts. Like religious courts, their authority may or may not be derived from the State, and their presiding judges are usually knowledgeable about the customary laws in issue. Significantly, they combine features of informal and institutionalized mechanisms. An example is Malawi's Local Courts Act of 2011. It establishes local (traditional) courts in rural areas of Malawi's 27 districts and a District Appeals Court to hear appeals from traditional courts. Further appeals may be made to the High Court. These two levels of courts are presided over by a chairperson with a reasonable standard of education, proficiency in English language, and adequate knowledge of the customary laws of the locality of the court. Like in most African countries, Malawi's traditional court judges are assisted by assessors who advise on substantive customary law.

From statutes and means of evidence, traditional courts are the finest interface of formal and informal adjudicatory mechanisms (Baker, 2013; Diala, 2019). The reason is primarily due to the influence of globalization on their procedures and the normative behavior of their clients. At the height of modern colonialism in the late nineteenth century, European powers territorially controlled huge swathes of the global South. Compelled by political, financial, and administrative factors, they created dual judicial systems in their colonies. On the one hand, they established Western-styled courts to handle matters of public law, using foreign laws and principles that they transplanted from their home nations (Shi, 2010). On the other hand, they recognized indigenous systems and even attempted to replicate them (Roberts & Palmer, 2005). The resultant legal pluralism is problematic.

Compatibility Rules

In Africa, legal pluralism emerged under the so-called direct and indirect rule policies of political administration, which recognized native authorities (Crowder, 1964). However, the recognition of indigenous systems was conditional because they were subjected to Western values (Okereafoezeke & Elechi, 2002). The most notorious is the repugnancy clause. This judicial yardstick recognized customs as valid only if they did not contravene natural justice, equity, good conscience, public morality, and statutory law (Akpamgbo, 1977). It enabled judges to infuse foreign principles into indigenous customs, especially when hearing appeals from local tribunals. For example, judges used European notions of morality to delegitimize woman-to-woman marriages (Amadiume, 2015). The problem is that such marriages are not gay unions but rather ways of perpetuating family lineage in situations of barrenness or the untimely death of a male spouse (Baraza, 2018).

Significantly, the repugnancy clause was succeeded by constitutional bills of rights that emphasize individual rights to equality, human dignity, and non-discrimination. In varying degrees, this clause and constitutional bills of rights construct(ed) indigenous adjudication into the image of Western laws (Diala, 2021). This normative construction occurs through two main ways. Firstly, judges promote individual rights over group welfare. Secondly, judicial procedures erode the flexibility of indigenous norms by promoting evidentiary rules that marginalize(d) the orality of indigenous laws. Also, legal positivist principles elevate the burden of proving customs, while binary notions of gender equality exacerbate conflicts over matrimonial property rights. Arguably, the normative construction of indigenous behavior encourages interface between formal and informal dispute resolution mechanisms. A notable platform or tool for this interface is alternative dispute resolution.

Alternative Dispute Resolution

Alternative Dispute Resolution (ADR) mechanisms are platforms where formal and informal peacebuilding mechanisms converge (Crook, 2014). In its mainstream understanding, ADR consists of mediation, conciliation, and arbitration. While these mechanisms may appear novel or innovative to institutionalized systems, they are the traditional means of dispute resolution in many pre-industrial societies (Nolan-Haley, 2015). The customary courts established by African states are supposed to be informal, based on indigenous laws, and as independent from State authority as possible. In reality, many of them are mere extensions of State courts (Bogopa, 2007). A survey of these courts in southern Nigeria found that their judges picked up the baton left by British colonialists and “continued interpreting indigenous laws with English law standards, values, and rules,” thereby sacrificing “indigenous law's oral nature in favour of the legal certainty provided by technical rules of procedure” (Diala, 2019: 398). This tendency affected indigenous behavior.

For example, in the Shilubana dispute, South Africa's Constitution influenced a traditional community to elect a female leader, in departure from the indigenous rule of male primogeniture.⁶ Kenya's parliament consolidated all types of marriages into a single legislation, incorporating constitutional rights to equality, human dignity and non-discrimination. In fact, Kenyan judges embraced Western views of marriage to the extent that their Supreme Court intervened to rule that spouses are not automatically entitled to half of their matrimonial property upon divorce (AMM v SMN, 2022). It is within this influence of statutory laws on indigenous behavior that informal courts interface the most with orthodox courts. For instance, multi-door courthouses increasingly emulate indigenous styles of dispute resolution. Here, claimants pay a registration/filing fee. But unlike in some informal courts, the tribunal retains the fee of the unsuccessful party. These payments and evidential procedures represent convergence between formal and informal dispute mechanisms.

Towards Harmonization of Formal and Informal Mechanisms

Here, harmonization denotes measures aimed at aligning regulations and practices towards unification of disparate normative orders. Regrettably, the relationship between informal mechanisms and statutory courts, law enforcement agencies, and other institutionalized bodies is not usually harmonious. This situation is largely traceable to colonial legacies, which superimposed European legal systems over indigenous systems. Even where the Europeans recognized indigenous structures, officials such as judges, legislators and monarchs prioritized the political and economic motives of the colonizers. For example, many predecessors of contemporary traditional rulers were appointed by Europeans, who sometimes displayed scant regard for indigenous rules of succession (Afigbo, 1971; Onyeama, 1982). Many of these colonial appointees owed their loyalty to their European bosses rather than their own communities. This situation continued in most postcolonial states, where government oversees the appointment of traditional rulers (Kyed, 2006).

Furthermore, some aspects of traditional courts are incompatible with Western notions of confidentiality, neutrality and individual rights, which dominate the proceedings of institutionalized mechanisms (Nolan-Haley, 2015). Whereas indigenous ordering aims at the welfare of the clan, statutory laws prioritize personal rights. Whereas institutionalized mechanisms tend to resolve disputes on a need-to-know basis that is riddled with technicalities, indigenous proceedings are usually inclusive of community views. Moreover, neutrality and separation of executive and judicial powers are not serious concerns in informal mechanisms. This is because traditional authorities, who usually combine executive and judicial powers, are often related to the disputing parties through blood or marriage.

Finally, some traditional authorities are believed to promote unequal distribution of resources such as land and homesteads, using ethnicity, gender norms, cultural status and other factors (von Benda-Beckmann, 2006). In fact, customary court judges are often accused of violating women's rights to equality and human dignity (Bennett, 2012). In Malawi, for example, chiefs have been observed to invoke tradition when statutory (human rights) laws threaten their socioeconomic interests (Ubink, 2016). Given the problems associated with formal and informal mechanisms, how may they be harmonized in a way that leverages their strengths?

The Importance of Values

In pre-industrial societies, values played a crucial role in dispute resolution. How else could large groups of people collectively manage the normative disagreements of daily life and articulate “collective positions out of the welter of [their] disagreement”? (Webber, 2008, p. 202). To understand the role of values in the harmonization of formal and informal peace mechanisms, it is important to reappraise the nature of indigenous African laws.

Indigenous laws denote precolonial practices, which people regard as obligatory and, for varying reasons, exert pressure on others for conformity. These ancient laws represent collective aspirations and the underlying values that provide people with direction, order and standards for dispute resolution. Significantly, indigenous laws are not uniform. Importantly, most of them emerged in agrarian settings to protect the family from invaders and regulate agriculture and communication with the spiritual world. These needs required social organization to operate with communal values, elaborate rituals, and the rule of male primogeniture. This rule requires succession to occur through the eldest male in the bloodline (Diala & Kangwa, 2019). Unsurprisingly, precolonial societies and their indigenous laws prioritize(d) the welfare of the clan, unlike state laws that promote individual rights. This value-laden aim of social organization is crucial for harmonizing formal and informal mechanisms.

Values are deeply embedded in indigenous knowledge systems. A good example is stewardship of the Earth. Stewardship regards Earth's natural resources, especially land, as a living entity with a spiritual symbol. Since many traditional communities consider land a sacred trust, their indigenous laws seek to ensure its protection, sustainability, and respect. Accordingly, harmonization of formal and informal peace mechanisms should be grounded in the foundational values of indigenous laws. These values represent people's collective beliefs about right and wrong actions, relevant and outdated behavior, and minority or majoritarian practice. Given their processual nature, the values of indigenous laws promote a relational view of law (Napoleon, 2012). They cherish interconnectedness, collective decision-making and flexible adjudication that thrives on principles of restorative justice. They are useful for dispute resolution because they explain why indigenous norms struggle to fit with modern conditions.

Policymakers should focus on the foundational values of indigenous peacebuilding because the homogeneity of the liberal peace has not worked well in the global South. More importantly, indigenous mechanisms adapt towards statutory frameworks and their accompanying socioeconomic changes. While the adaptive influence of globalization gives indigenous laws an unstable character, their foundational values are comparatively resilient. They therefore offer a potentially effective platform for harmonizing formal and informal peace mechanisms. Legal history shows that postcolonial societies adapt towards the normative standards imposed by their imperial overlords. For example, many indigenous tribunals in Africa practiced trial by ordeal and invoked supernatural help by swearing oaths in the name of deities (Ibhawoh, 2013). This method of truth-finding is reminiscent of how English law once recognized trial by ordeal (Bartlett, 1999). Indeed, English law still puts witnesses on oath. But swearing oaths with deities to decipher the truth during informal dispute resolution is giving way to Western-influenced affidavit evidence, swearing by the Bible, and cross examination of litigants.

A realistic route to the harmonization of peacebuilding mechanisms is constitutional recognition of customary laws. For instance, article 126(2) of Uganda's 1995 Constitution mandates the courts to promote reconciliation between disputants. This mandate resonates with the indigenous aim of restoring harmonious relations. Furthermore, Uganda's Arbitration and Conciliation Act of 2000 gives judges new powers to refer cases to mediation. In any case, the constitutional recognition of customary laws should be preceded by substantial judicial and legislative awareness of the processual, welfare-oriented nature of indigenous laws. In this context, the foundational values of indigenous laws illumine the agrarian origins of customs and explain why people adapt their behavior to socioeconomic changes (Diala & Kangwa, 2019). However, harmonization should be preceded by systematic ascertainment of indigenous laws. As Friedland and Napolean (2015, p. 16) noted, “simply arguing for the recognition of Indigenous law is inadequate because we cannot just assume that there are complete and intact legal orders that can spring to life through recognition.” Since most indigenous laws have transmogrified under the powerful influence of globalization, their new forms must be considered in harmonization efforts because they constitute contemporary customary laws.

Conclusion

This article analyzed the interface of formal and informal conflict resolution mechanisms in sub-Saharan Africa, drawing on extensive field insights and the historical impact of European colonialism. It finds that many Africans prefer informal mechanisms for reasons ranging from cost to flexibility, language, and long distance to formal courts. These mechanisms include traditional courts, royal tribunals, religious forums, and clan arbitration. Due to the influence of globalization on people's behavior, this article highlights the interface of informal and institutionalized peace mechanisms, arguing that this interface offers a platform for aligning these mechanisms to create consistency and promote efficiency in justice delivery.

The differences between formal and informal peace mechanisms are not as formidable as peacebuilding literature portrays. Significantly, their interface recognizes that a sense of obligation in habitual practices confers normative character on people's behavior. This is because a sense of obligation invites pressure for conformity with behavior. There is, therefore, a sense in which customary law is whatever practice people attach a sense of obligation at any given point in time. If we accept this way of perceiving normativity in peacebuilding processes, it becomes easy to see how indigenous dispute resolution engages in dialogue with institutionalized mechanisms. This dialogic view enables both formal and informal peacebuilding to learn from each other and work towards unity in duality.

Footnotes

ORCID iD

Anthony Diala

Funding

The author disclosed receipt of the following financial support for the research, authorship, and/or publication of this article: The research for this paper was funded by the National Research Foundation of South Africa (grant numbers 136532 and KIC240411213571). However, the opinions, findings and recommendations are to be attributed to the author alone.

Declaration of Conflicting Interests

The author declared no potential conflicts of interest with respect to the research, authorship, and/or publication of this article.

Notes

Author Biography

Anthony Diala is a professor of African legal pluralism and director of the Centre for Legal Integration in Africa at the University of the Western Cape. Among others, he is chief editor of the African Journal of Legal Studies, a member of the International Academy of Comparative Law, and a fellow of the Bayreuth Academy of Advanced African Studies, Germany.

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