Customary Governance and Democracy Building Exploring the Linkages PDF

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Customary Governance

and Democracy Building:

Exploring the Linkages

Conference Report

1516 September 2010

UN Conference Centre

Addis Ababa


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Customary Governance and

Democracy Building:

Exploring the Linkages

Conference Report


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International Institute for Democracy and Electoral Assistance 2011

International IDEA publications are independent of specific national or political interests. Views expressedin this publication do not necessarily represent the views of IDEA, its Board, its Council members or otherorganizations involved in its production.

Printouts of this document for individual use are allowed without special permission from IDEA. Forreproduction or translation of any part of this publication a request should be made to:

Publications OfficeInternational IDEASE -103 34 StockholmSwedenE-mail: [email protected]

Graphic design by: Santngelo Diseo

Printed by: Bulls Graphics, Sweden


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Table of Contents

I ................................................................................................................................................

A ......................................................................................................................................

A ......................................................................................................................

C I O R ..................................................................................

Doctor Kojo Busia,Doctor Peter deSouza andMark Salter .....................................................................

S : A P ..................................................................................................................

Why Democracy Building in Africa Might Require Reconciling Modern andraditional Institutions of Governance, Professor Kidane Mengisteab ....................................................

Te Roots of Resilience: Exploring Popular Support for African raditional Authorities,

Professor Carolyn Logan .........................................................................................................................

S : R G A R ............................................................................

Rooting Governance in African Realities: Are Customary Institutions the Answer?Frederick Golooba-Mutebi .....................................................................................................................

S : R G I PD M I C: C B ...............................................

Customary Governance and Democracy Building: Te Case of Botswana,Doctor Patrick Molutsi...........................................................................................................................

S : R C E A L SD: A I C S .................................................................................................................

Te Role of Customary and Elected Authorities in Local Service Delivery: Te Caseof Karnataka State, India, Professor Kripa Ananthpur ............................................................................


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S : C G D B: P A R ......................................................................................................................................

Latin America: New Political Actors, New Democracy and New States: Te Role of

Indigenous Peoples in the Refounding of the State, Professor Guillermo Padilla Rubiano......................

Constitutional Recognition of Indigenous Customary Law in Latin America:From Multiculturalism to Plurinational Statesrends and Challenges,Doctor Raquel Yrigoyen Fajardo .............................................................................................................

S : C G D B: A O A W ...........................................................................................................................................

Democracy Between Political Power and Customary Governance in the Arab Region,Gihan Abouzeid ....................................................................................................................................

S : L L I C ............................................................

Doctor anja Chopra .............................................................................................................................

C S: K I I C A RF I ................................................................................................................................

A : C ......................................................................................................................

A : L ......................................................................................................................


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oday more than ever, the field of democracy support ischaracterized by a diverse and fluid approach. In recentyears the focus of international support has increasinglyshifted from assisting short-term individual democratic

events such as first-time elections to facilitating theestablishment and consolidation of sustainable, long-term democratic processes. In practical terms thisfocus typically translates into a preoccupation withbuilding the capacity of established (i.e., formal) stateinstitutions such as electoral management bodies, the

judiciary, national legislatures and other related organsof governance.

At the same time, the national contexts withinwhich such democracy-building efforts operate areoften characterized by limited (or non-existent)

state institutional capacity, combined with prevalentcustomary governance structures that are based onpervasive local identities (ethnic, religious, clan-basedor tribal) and allegiances.

How best to address customary governance structureswithin the framework of democracy support programmesis thus an important and challenging question, and onethat has received relatively little systematic attention todate. o address this issue, in 2009 International IDEAinitiated a comparative assessment project, generouslyfunded by the Belgian Ministry of Foreign Affairs. Tespecific aims of the project are:

1. o analyze the role of customary governancestructures in a variety of current and potentialfuture democracy-building contexts, givingparticular attention to their actual and potentialcontribution to democratic consolidation andreform, gender dimensions of their functioningand specific challenges and insights derivedfrom conflict and post-conflict contexts.

2. o review the overall function and role ofcustomary governance structures and processes

in a range of democracy-building contexts.

Introduction

3. Based on an analysis of concrete experience ina variety of geographical settings, to assess thenature of customary structures relationships (orlack thereof) to formal democratic institutions,

as well as their actual and potential contributionto democratic consolidation and reform.

4. Drawing on the outcomes of the above, todevelop and disseminate policy-relevant con-clusions and recommendations directed to thebroader democracy-building community.

Te IDEA project also builds on a number of previousexperiences and initiatives, in particular:

Insights and perspectives gained from a majorcomparative study of the role of traditional

justice and reconciliation mechanisms inAfrican post-conflict societies: raditionalJustice and Reconciliation after Violent Conflict:Learning from African Experiences(InternationalIDEA, 2008English and French printversions available; also at: ).

Lessons gained from IDEAs practicaldemocracy-building experience in a range ofnational contexts, particularly in countries

where customary structures play a significant

role in local and/or national governance.

While the outcomes of this endeavour will hopefullyprove interesting and useful to a wide range ofconstituencies, notably within the internationaldemocracy and development assistance communities,specific target groups are at the forefront of the projectsintended audience, namely:

National and international policy makers,in particular policy makers in the fields ofconflict, reconciliation, judicial reform and

human rights; and


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Specialist analysts, academic institutions andthink tanks in the same areas.

Within the project framework an initial expert

consultation involving a small group of thematic andnational/regional experts from regions of particularinterest to International IDEALatin America,

Africa, South Asia, the Middle East and the Pacificwas held at the Indian Institute for Advanced Study(IIAS)1, located in Shimla, India, in May 20092.Following consultation with a number of key projectpartners and stakeholders, an international conference

was co-organized with the United Nations EconomicCommission for Africa (UNECA)3, which has longhad a keen interest in the issues addressed by thisproject. Te conference, held at the UN Conference

Centre in Addis Ababa on 15-16 September 2010, wasattended by 70 participants drawn from a wide rangeof constituencies and regions, many of them notedexperts in their respective geographic regions and/orfields of intellectual enquiry.

A key objective of the conference was to further developand deepen the analysis of the role and functioningof customary governance structures within a varietyof democratic contexts that was initiated at theShimla Consultation. Te Shimla meeting affirmedthe fundamental view that, practically speaking, inmany contexts formal and informal governancestructures cannot easily be separated. Participants atthe Addis conference recognized the need to developan approach to democracy building that seeks toharmonize and synthesize these seemingly parallelsystems of governance.

Tis requirement is more than simply intellectualor conceptual; the core of the conference discussionfocused on the need to anchor democracy in themany and highly diverse local contexts in which itoperates. In this sense the project of customizing thedemocraticand at the same time democratizing

the customaryis essential if the overall democraticenterprise espoused by a majority of the worldsnations is to be considered truly legitimate by theirown populations.

In operational terms, the development of such aproject and approach necessitates an examination

1

2 A full report from the Shimla Expert Consultation is available on

request from IDEA.

3

of the transformations required by both customarygovernance institutions and the formal state in orderto achieve a functioning, dynamic modus vivendi

between the two systems. Understanding how thesemutual transformations can and will unfold, and theimplications of such a process for the legitimacy ofthe modern state, has a number of highly significantoutcomes. In particular it can make a major contributionto democracy building on the ground and help to movepolicy discussion about democracy building beyond theconceptual impasse of state failure and failed statesthat has been such a salient feature of internationaldiscourse in recent years.

What is the nature of the transformations requiredwithin both governance systems by such a process? One

line of argument is that we are currently witnessing atransitory process in which a single governance logic

will ultimately prevail. Another is that there is anenduring cohabitation between the two logics, and thatboth are required to address the particular governancechallenges confronted by each country. A third theoryis that we are currently witnessing a series of innovativeinstitutional responses to a democratization processthat has roots in a European culture and institutionalapproach that are fundamentally alien to most countriesand regions, notably in the global South. Viewed fromthis perspective, such innovative institutional responses

offer a tool for better understanding the workings oflocal, as opposed to imported, democracy. In this sense,these responses are a critical contribution, in the firstinstance from the global South, to what might be termedthe democratization of the democratic debate itself.

Overall, participants agreed that the Addis conferencedeliberations were both rich and variedso muchso that the main body of this report presents themin rather more detail, and with greater attention tocontextual nuance, than is usually the case in suchdocuments. Indeed, a key conclusion of the discussions

was the need to recognize and pay attention tocontextual specificityregional, national or local.Conference participants will hopefully forgive us forshortening their contributions in the interest of space,

while the broader readership of this report is stronglyencouraged to delve deeper into the papers on whichmuch of the report draws.4

4 All the background papers commissioned for the conference are

also available on request from International IDEA.


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Te conference of 15-16 September 2011 was jointlyorganized by UNECA and International IDEA.Te conference owe much to the efforts of Mark

Salter, Katarina Jrgensen, Julian Smith and LisaHagman. Many thanks are due to Alemtsehay Abateand sion Yohannes for their work on providing thedraft transcription of the conference discussions on

which the main body of the report is based. Specialacknowledgement goes to Mark Salter who was thekey editor of this report.

Special thanks are due to the following: AbdallaHamdok, Kojo Busia and colleagues in the Governanceand Public Administration Division at UNECA for

hosting the Addis meeting and their enthusiasticsupport for the overall initiative; Peter deSouza,anja Chopra, Kripa Ananthpur and Kojo Busia

for their committed advice and support in planningthe conference; Alemtsehay Abate and KatarinaJrgensen for their untiring assistance in organizingthe event; and last, but by no means least, AmbassadorLuc eirlinck, Director Peter Saverys, Marc van

Wijmeersch and colleagues in the Belgian Ministryof Foreign Affairs for the financial and moral supportthat has made possible both this and the precedingAfrican raditional Justice Mechanisms project thatinspired it.

Acknowledgements


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APPP Africa, Power and Politics Programme

CDF Civil Defence Forces

CIESAS Centro de Investigaciones y Estudios Superiores en Antropologa Social, MxicoCVC customary village council

DFID Department for International Development (United Kingdom)

GDP gross domestic product

GNH gross national happiness

GPs Grama Panchayati

IIAS Indian Institute for Advanced Study

ILO International Labour Organization

International IDEA International Institute for Democracy and Electoral Assistance

MP Member of Parliament

RC ruth and Reconciliation Commission

UAE United Arab Emirates

UK United Kingdom

UN United Nations

UNDP United Nations Development Programme

UNECA United Nations Economic Commission for Africa

UNIFEM United Nations Development Fund for Women

USA United States of America

USAID United States Agency for International Development

Acronyms and abbreviations


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Dr. Kojo Busia on behalf ofDr. Abdalla Hamdok, United NationsEconomic Commission for Africa

(UNECA)UNECA regards it as a great honour to co-host thisimportant conference with International IDEA,the aim of which is to explore the linkages betweencustomary governance and democracy buildingatheme that is both topical and timely, notably inthe context of democracy- and state-building effortsthroughout the global South.

In May 2009, International IDEA organized anexpert consultation in Shimla, which was hosted bythe Indian Institute for Advanced Studies (IIAS). TeShimla Consultation provided a unique opportunitynot only to exchange ideas, insights and experienceson the relationship between customary and formaldemocratic governance institutions, but also to reflecton the dilemmas posed by their linkages with respectto state-society relations in general and the politicallegitimacy of the state in particular in many parts ofthe developing world.

Discussions also focused on specific experiencesdrawn from local contexts on several continents, andhighlighted the importance of integrating customary

and formal structures in order to address issuessuch as gender, youth, HIV/AIDS and health, theenvironment, climate change, corruption, electoralviolence, conflict, peace building, human rights and ahost of other governance challenges.

Overall, the Shimla Consultation reaffirmed the fun-damental view that formal and informal governmentstructures cannot easily be separated. Accordingly, anapproach should be developed to reconcile, harmonizeand synthesize these seemingly parallel systems ofgovernance if democracy is to be considered legitimate

by the majority of the worlds population. Creating

such an approach requires an examination of themutual transformations required by both customarygovernance institutions and the formal state, and theblending of the norms, values, rules and processesassociated with each system. Understanding how thesemutual transformations unfold and the implications

this has for the legitimacy of the modern state willmake a major contribution to state building and moveus beyond the conceptual impasse of state failure andfailed states that has dominated recent discourse inthis area.

Tis meeting seeks to further the discussions and analysisinitiated in Shimla. Tis diverse group of experts candelve deeper into the comparative perspectives drawnfrom different regions and continents, share experiencesand insights, and identify successful approaches toand outstanding challenges related todemocratizing

the customary and customizing the democratic.

Conference Introduction

and Opening Remarks

An approach should be

developed to synthesize these

seemingly parallel systems of

governance if democracy is to

be considered legitimate by

the majority of the worldspopulation.


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Dr. Peter deSouza, Indian Institutefor Advanced Study (IIAS)

It is important to place these discussions within thelarger framework of global discourse. In the last fewyears, many countries in the global South seem tohave become disillusioned with democracy. Tisdisillusionment can perhaps be explained by the gulfbetween the promise of democracy and its actual

workings. Tere is a substantia l body of evidencedocumenting the poor governance that characterizesthe practice of democracy today; in some cases itscapture by elite groups promotes the pathologies ofpolitical culture as a result.

Implicit in this criticism is a suggestion of two differentnormative orders: 1) a modern state with a kind ofrationalized attendant democratization process and2) a traditional political structure. In this context, ithas been suggested that the normative frameworks andsystems inherent in traditional political structures maybe more conducive to effective governance processes.

Over the years, rich case-specific material has givenus complex empirical insights into the working ofdemocracy in particular countries. Tis evidenceinvites us to do comparative work, because we needto understand why the deficits exist, what internal

processes are involved and what factors producethese deficits. A key question that guides the work ofInternational IDEA and all others who are concerned

with democracy is thus: what can we learn from thesecase studies, and what can comparative assessmentstell us about the democratization process?

One line of argument is that we are currently witnessinga transitory process in which a single governance logic

will ultimately prevail. Another theory is that there isan enduring cohabitation between the two logics, andboth are required to address each countrys unique

governance challenges. A third theory is that weare currently witnessing an innovative response to ademocratization process that has its roots in an aliencultureEuropewhich brings with it specific andcomplex cultural packages and institutional forms.Innovative institutional responses, so the argumentgoes, can help us better understand the workings ofdemocracy. In this sense they are a critical contributionto democracy discourse from the global South.

What are some of the emerging questions that requirefurther consideration? For example, do we see the

relationship between formal and informal governance

structures as an expression of an evolutionary process ofdemocratization, or rather as a process of hybridizationand indigenization? What forms should the related

institutional architecture take? How does one deal withquestions of adjudication and conflict between the twoforms of governance? Can the political cultures theyrepresent co-exist comfortably with each other? Or isthere a primacy when conflicts are involved and onenormative order begins to trump the other?

Several elements of the democratization processsuchas participation, transparency, accountability andresponsibilitycan perhaps be harmonized moreeasily between the two forms of governance. Butpotential conflicts surface in relation to formalstructures, particularly with respect to the rule of law.Tese conference discussions will help us make senseof the case studies: We will examine the formal andinformal processes of each case within a comparativeframework and place this information within thecontext of the larger debate on the democratizationprocess. It will help us understand how the functioningof democracy in other regions of the world cancontribute significantly to the global debate, and inthis sense contribute to the democratization of thedemocratic debate itself.

Mark Salter, the InternationalInstitute for Democracy and Electoral

Assistance (International IDEA)

Why is International IDEA working on the specifictheme of this conference? One of the things impliedby the core focus of International IDEAs workthepromotion of sustainable democracyis thefundamental understanding that for democracy totake root and flourish, it needs to be nourished byand live within the biosphere of its local context. Tismay appear to be simplistic or even a truism, but it is

remarkable how this idea continues to fly in the faceof overtly normative existing approaches to democracysupport that rest on the assumption that there is, if notexplicitly a one size fits all approach, at least a superiormodel to which everybody should be aspiring.

It is pretty clear, however, that the kinds of concerns andissues we are exploring here contradict that approachhead on. We want to explore the local contexts within

which democracy has taken root and is flourishing,and in this context to specifically explore the role andcontribution of what is already there with respect to

governance structures and processes.


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In this we are partly guided by previous experiencewith the publication Reconciliation and raditional

Justice after Violent Conflict: Learning from AfricanExperiences,5which is based on a set of country casestudies on the role of traditional justice mechanismsin post-conflict societies in Africa. wo importantconclusions emerged from this study. First, a clearsense of the resonance people felt, and continueto feel, about focusing on local resources and localapproaches to managing everything from small-scaledisputes to much more serious conflicts. Second,that understanding of these local dimensions is stilllacking in the international communitys approachto everything from post-conflict reconstruction to

democracy support and state-building efforts aroundthe world.

5

As those who attended the Shimla Consultationwill reca ll, terminology is problematic: we chosecustomary because it was seen as the least

problematic of the available terms. Some peoplemaintain, however, that we are really talking aboutinformal structures, while recognizing the factthat traditions themselves are in a constant state ofchange; others prefer the term traditional or, moreaccurately, tradition-based structures.

We also aim to maintain a balance between exploringthematic issues and country- and region-specificstudies. It has become very apparent that there are anumber of critical issuesfor example accountability,legitimacy, gender and inclusivitywithin traditionalstructures that require a more thematic approach. At

the same time, we want to keep examining the specificsof local and regional contexts.

In conclusion, in terms of the tripartite framework ofconfrontation, co-habitation or innovative institutionalresponse suggested by Peter deSouza, my sense is thatsome of the most interesting and useful learnings arestarting to emerge from work in the area of innovativeinstitutional responses. Finally, it is critical to keepasking ourselves how this discussion of the relationshipbetween customary and formal structures can informactual policy making in governance, judicial reform

and other key areas relating to economic, political,social and cultural development.

It is in the area of innovative

institutional responsesthat

some of the most interesting

and useful learnings are

starting to emerge.


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Prof. Kidane Mengisteab,Pennysylvania State University, USA.Why Democracy-Building in Africa

Might Require Reconciling Modernand Traditional Institutions ofGovernance

My title suggests a number of contentions. First,modern and traditional African institutional systemsare both fragmented and, at times, incoherent.Second, existing institutional incoherence underminesthe democratization process on the continent. Tird,the two institutional systems can be reconciled inpractice. Fourth, democratization is likely to requirethe reconciliation of these two sets of institutions.

Institutional scholars tell us that when formal andinformal institutions are coherent, citizens know whatis expected of them, both individually and collectively.Institutional incoherence, by contrast, leads to bothconfusion and social instabilitywhich is why theseinstitutions need to be reconciled for the purposes ofsocial stability and stable democracy. In the existingliterature on African institutions, however, there isa lack of clarity regarding the relationship betweentraditional, formal and informal institutions.

For example, there is no comprehensive study ofthe dynamics of chieftaincy systems and how theymight be integrated into or reconciled with formalinstitutions. One school of thought dealing withinformal institutions concentrates on the clientelist,corruption-focused and patrimonial characteristics of

African state functionaries. It is debatable, however,whether we should view these as illicit activities orinstitutions. It seems more appropriate to view themas illicit activities, because institutions are meant tobe guides for behaviour, and illicit activities cannotproperly be described as such. An additional problem

with this approach is that it chiefly focuses on the

behaviour of state functionaries, but does not addressother aspects of informal institutions in Africa.

A second approach focuses on traditional institutions.Te problem with this approach is that it tends todescribe chieftaincy systems and how they operate,but does not deal with non-chieftaincy institutionalsystems, or indicate the mechanisms by which these

institutions could be incorporated into prevailinggovernance structures. Some analysts are clearlyopposed to traditional institutions. Tey see them asincompatible with democracy and argue that the bestthing to do would be simply to abolish them. Othersargue that traditional institutions are an essentialfeature of the governance landscape, and Africanstates cannot manage without them. Te problem,however, is that these points of view do not help usunderstand how to build institutional systems into

which relevant aspects of traditional structures canbe integrated.

Te African institutional landscape consists ofthree groups. First, there are formal institutionsthat constitute the base on which the state operates.Tese are either legacies of colonialism or more recentimports from advanced Western countries. Second,there are traditional institutions that enjoyed aformal status in the pre-colonial era. Tus, Africanpolitical systems have their own institutional basis.

With the advent of colonia lism and indirect rule,these institutions were relegated to the sphere ofinformality; they continue to operate, although

they have been modified by colonialism and over

Session 1:

African Perspectives


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time. Tird, there are formal societal institutions,which are subject to changes and differ from placeto place. For instance, religious groups have different

formal societal institutions, customs and norms, asdo different ethnic groups or people who live withindifferent modes of production.

Te fragmentation of the formal and the traditionalis an empirical reality in Africa. Especially in ruralareas, large groups of the population still adhere totraditional institutional systems of governance, whilethe state operates in a different form. Te key question,however, is: are the systems incoherent? Do they clash

with each other? If so, in what areas? raditionalsystems, of course, generally operate within differenteconomic systems; you cannot expect nomads in ruralareas and business people in cities to operate withinthe same institutional frameworks.

o illustrate the areas of potential institutional conflict,let us examine two areas: 1) resource allocation andproperty rights, and 2) conflict resolution mechanisms.Te most important resource in the traditionalinstitutional space is land: for peasants and nomads,their livelihood depends on it. raditional landownership systems are quite different from thosesponsored by the state.

By and large, traditional ownership of land iscommunal, and membership in the communityis essential for access: as long as you are a memberof the community, you cannot be denied access toland. In many instances the state does not recognizecustomary ownership of land, and following thecolonial example some states declared that all landbelongs to them, so that they can expropriate it asand where they want. At other times states recognizeproperty rights, but since they do not really recognizecustomary ownership they still take land and fail toprovide effective compensation. In areas with mining

or commercial farming, for example, compensation

mechanisms are generally either non-existent orextremely limited in scope.

When states confiscate land or declare that it belongsto them, they are in effect violating the customaryownership of land, so the conflict between the twosystems of governance is obvious. In some countries thestate encourages land registration and privatization.Land thus becomes a commodity subject to the market,

which is again quite different from the principles ofland allocation within traditional systems.

Tere are two basic conflict resolution paradigmsin operation. In traditional systems, resolution ofconflict involves the narrowing of differences throughnegotiations and bringing about reconciliation amongthe disputants. In the state system, however, the focusis on establishing who is guilty and punishing theperpetrator.

Tus the modern legal system operates on the basis ofan adversarial approach, while the traditional systemfunctions on the basis of reconciliation and whatare sometimes referred to in the West as alternativedispute resolution mechanisms. Even when statessettle a dispute, however, the groups involved are notreconciled until the traditional system resolves theconflict. In many African countries, as many as three

different legal systems are sometimes in operation:official, traditional and sharia courts. People reallyshop around in these court systemsthey havechoicesand it is very interesting to analyze whatkinds of cases go to which court systems.

In many cases the official courts are effectively forcedto accept the unofficial courts. Tis is why, for instance,Kenyas recent constitution recognizes sharia courts.

All three systems operate in Somaliland, where officialcourts have no choice but to recognize the unofficialcourts; local informantsincluding judgesreport

that close to 80 per cent of dispute resolution is handledby the traditional system.

How should these differences be addressed? Andwhen there are incompatibilities or conflicts, how dowe promote democracy on the basis of systemscharacterized by institutional incompatibilities? Inmany cases, a key issue is that when the state or themarket system allocates resources, people operating

within traditional socio-economic spaces tend to bemarginalized. An analysis of any socio-economicindicatorssuch as the distribution of public

services, poverty or illiteracy ratesdemonstrates

Te existence of incoherent

institutional systems

is undermining the

democratization process on

the African continent.


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that there is unequal access to resources; the ruralpopulation is always marginalized compared topopulation groups that operate within officialinstitutional systems.

Geography also plays a role: ethnic groups that arelocated further away from urban areas seem to be evenmore marginalized. Tis can lead to ethnic conflict,

which in turn undermines both state building and the

democratization process. In this sense the existence ofincoherent institutional systems is undermining thedemocratization process on the African continent. Itis very difficult to imagine how to build or otherwisemake official institutional systems operate in ruralareas where the mode of production is different. Forexample, how would you implement land registrationand privatization among pastoral communities? It isvery difficult to even imagine how to go about it. Inthis sense the key problem underlying institutionalincoherence is vast differences in the prevailingmodes of production.

Te process of reconciling the two institutional systemsof course requires a reformation of or transformation inthe modes of production, which is a long process. Weare not going to transform nomads in a short periodof time, nor are we going to turn subsistence peasantsinto capitalist farmers overnight. If fragmentationof the modes of production as well as overall frag-mentation and incoherence are characteristics oftransitional societies, what kind of institutional systemdo we aim to build during the period of transition? Myargument is that the transitional period also requiresa corresponding transitional reconciliation of these

institutional systems.

We do not have many examples of success stories thathave managed this transition. However, the cases ofBotswana, South Africa and Somaliland offer one

way of reconciling these institutional mechanisms. InBotswana, modern transitional systems have effectivelyco-opted or integrated traditional institutional mech-anisms. Trough decentralization, South Africa hasthe opportunity to allow the traditional system to bepart of provincial and local governance. In additionto incorporating traditional authorities, moreover, the

country has somehow reconciled the notion of property

rights. Te South African state does not confiscate landfrom peasants operating under the traditional system.Teir problem is the legacy of the apartheid system and

the fact that land restitution is so slow.

In Botswana the conflict resolution system is highlyreconciled. Tere are courts of chiefs handling certa intypes of crimes and land issues. raditional chiefs arealso involved in local governance. Interestingly, inSomaliland they have created a house of chiefstheGuurtithat is quite different from those operating inother African counties. Parliament cannot pass any lawsthat are not first approved by the Guurti. Its membersare not elected. Tey are selected representatives ofevery clan, and are viewed as guardians of culture andreligion. Tey are responsible for resolving conflicts

in the country and have the power to regulate theexecutive.

Why does such a body have so much power and yet isnot elected? First, we should ask whether the Guurti

would be able to provide the same services if it werean elected body. Often, parliaments do not provide aplatform for all the different clans or sections of societyto negotiate and reach consensus.

As long as it includes representatives of marginalizedsegments of society, the Guurti can bring them

into the political process. Te traditional systemsof conflict resolution and resource allocation areboth applied because it [the Guurti] comprises thecustodians of culture, religion and traditions ofproperty rights.

Te worry, however, is this: will the Guurti ultimatelyfacilitate a transition to a new democratic politicalsystem, or will it preserve the current system? And ifthey do preserve it, is there a problem? Is the Guurtiless democratic just because it is not an elected body?Te universal value of democracy is that the generalpopulation controls decision making. Institutionssuch as elections are vehicles or mechanisms forattaining the ultimate goal of democracy, which is thepopulation controlling the decision-making process.o the extent that the Guurti brings the majority ofthe marginalized rural population into the politicalprocess it can be argued that it is advancing, ratherthan impeding, the cause of democracy.

Is the Guurti less democratic just

because it is not an elected body?


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Prof. Carolyn Logan, Afrobarometerand University of Michigan, USA.The Roots of Resilience: Exploring

Popular Support for AfricanTraditional Authorities

As noted previously, over the years there has beena lot of debate about the role of African traditionalauthorities and leaders. It tends to be very polarizedbetween the traditionalists, who think that these arevery good institutions that need to be built on, andthe modernists, who think they should be abolished.Romanticizers and trivializers is another way thatpeople characterize the two positions. But one thingis very clear: these institutions have proved to be

very resilient, and are not withering away, as somepredicted.

In fact, we are seeing an increasing number of countriesin which a growing roleformal or semi-formalisbeing accorded to traditional leaders, particularly inlocal governance but sometimes at the national level,as in Somaliland. I will focus mainly on the local level.A key question here is the extent to which people stillsupport traditional leaders and believe that they shouldplay a roleand if so, why? What are people gettingout of these systems? Tey are not electing the leaders,but are they getting more access to people who betterunderstand their needs and community problems?

And how do these traditional leaders interact withlocal government structures and leadership? Is it arelationship of competition or synergy?

Te prevailing assumption is that it is a competitive,zero-sum relationship in which people either givetheir allegiance to traditional leaders or to formalgovernment structures. Te reality, however, is morecomplex. And are institutions of traditional authorityfundamentally pro-democratic or anti-democratic?Tis debate is still not resolved.

One of the pieces largely missing in the debatehitherto is good information on the grassroots Africanperspectivehow people perceive their traditionalleaders, their role within the state and in the future.

Afrobarometer is a survey research project that iscurrently conducting national public attitude surveysin 20 African countries.6 Comparable Barometerstudies are operating in almost every region of the

world. Te main goal is to obtain scientifical lyreliable data on public attitudes, particularly towards

6

democracy and governance, so that what the publicwants can actually play a role in debates about howthese systems are evolving in Africa.

Te findings presented here are based on about 25,000surveys conducted in 2008 and 2009we do face-to-face interviews in the languages of the respondentschoice. Te samples are nationally representative,so rural areas figure in proportion to their nationalrepresentation. A standard survey instrument is usedacross all countries so that comparisons can be madeto a fair standard. Surveys tend to be conducted incountries that have undergone greater economic andpolitical liberalization. Tat is not true in all cases:Zimbabwe is part of the sample, and some other surveycountries have perhaps been going in the oppositedirection. In the latest [survey round four] instrument,a special module on both local government andtraditional leadership was included, so we have newinformation on how people are thinking about someof these issues.

How do people see the distribution of responsibilitiesfor key governance tasks within their community?

We look at a host of different responsibilities, from

solving local disputes and allocating land to managingschools and health clinics. Te data shows very clearlythat the key area where people still see a strong role fortraditional leaders isas we would have expectedin solving local disputes and allocating land. In localdispute resolution traditional leaders are widely seenas the lead institution, although central and localgovernment are still regarded as playing an importantrole. With respect to land allocation the data suggeststhat people are roughly equally divided on the relativeimportance accorded to traditional leaders andgovernment institutions. In other areas traditional

leaders are seen as playing a less significant role.

When the state has high

legitimacy, more people think

that the role of traditional

leaders should increase.


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Tere are enormous differences among countries. Forexample, in Lesotho and Botswana, three-quartersof the population responded that the primary

responsibility for solving local disputes rests withtraditional leaders, while in Madagascar and anzaniaonly a handful of peopleless than 10 per centviewthem as playing such a role. (Te anzanian situationmay reflect former President Nyereres efforts to unifythe country and marginalize traditional communitiesand local languages, and to get everybody speakingSwahili and develop a national identity.) In Ghana,Malawi and Zimbabwe traditional leaders play by farthe largest role in conflict resolution, while in othercountries the picture is much more mixed.

Te next question we asked is: how much do traditionalleaders have a role in governing your local community?Here about 50 per cent of respondents said that theyhave either some or a great deal of influence. Oneinteresting finding was that the responses were not asdifferent between urban and rural areas as we mightexpect. Overall, in urban areas 42 per cent attributeda fair amount of influence to their traditional leaders,

while in rural areas about one-third said that they donot have that much influence.

How much influence do people feel traditionalleaders should have? Across the entire sample 58 per

cent wanted their influence to increase, which seemsa pretty startling finding. In 16 countries the figureis 50 per cent or aboveonly in anzania, South

Africa and Madagascar does it fall below 50 per cent.In Botswana, Lesotho and Mali, moreover, three-quarters of the population said they want to see theinfluence of traditional leaders in the governing oftheir communities increase.

A few different explanations have emerged as to whypeople want traditional leadersor not. Te socio-demographic modernization view maintains that as

people become more educated and urbanized, theyleave their traditional communities and allegiancesbehind and become more focused on the state system.Tere are also important questions here as to how

women and youth perceive traditional institutions,because in Africa these structures have tended to be verymale dominated and gerontocratic. Another commonexplanation suggests that people do not perceive stategovernment to be legitimate, but rather as consistingof an unfamiliar, imported set of institutions over

which they feel no sense of ownership. Consequently,so the argument goes, they reject the state and prefer

traditional leadership.

raditional leaders are not elected: does that meanpeople who favour them are anti-democratic or atbest indifferent to democracy? Tere is a growing

assumption that part of the reason people wanttraditional leaders is because local governments areperforming so poorly, and traditional leaders areviewed as a group that might be able to do better inthis respect. Or is the key issue leadership related? Dopeople, in other words, see traditional leaders as moretrustworthy and accessible, as better leaders whencompared to local government officials, or electedleaders, and thus prefer them?

o measure perceptions of the level of state legitimacy,the survey includes a set of questions about whetherthe decisions of the courts should always be binding,

whether the police always have the right to enforce thelaw and whether people should always pay taxes. Andhere the result is the opposite of what we predicted.

When the state has high legitimacy, more people thinkthat the role of traditional leaders should increase.

In fact there appears to be more synergy thancompetition between traditional leaders and stateinstitutions. Many people tend to see them as separateentities, but our findings suggest that many Africancitizens do not look at it that way. Rather they seethem as a single system and evaluate them jointly:

if they are doing well all are doing well, and if theyare doing poorly all are doing poorly; they are not incompetition. Support for democracy, in other words,equals support for traditional leadership. We havea set of performance indicators for local governance(how well they are maintaining roads, managing localmarketplaces and keeping the community clean) andin all cases less than halfsometimes as low as one-thirdgave positive evaluations of their performance.

Local councils procedural performance is perceivedto be even worse. When asked how transparent the

councils are about budgets and how well they areinvolving people in decision making, only aboutone-quarter to one-third of respondents gave positive

evaluations. Overall, the evaluations of local governanceare thus fairly negative. Is this fact driving people intothe arms of traditional leaders, in the hope that they

will function better? Again, we dont see much evidenceof this in the survey. Among those who say that localcouncils are doing fairly well or very well on substantiveissues, 60 per cent want traditional leaders influenceto increase, and we find almost the same among those

who say they are performing fairly badly or very badly.

So we are not seeing the relationship that we expected.


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Finally, with respect to leadership attributes we askedpeople how much they trusted these different groups.How often do they participate in corruption, andhow well do they listen to peoples views? Te surveyshowed that traditional leaders were at the top of thetrust rankings: they scored above MPs and quite a bit

above local government council lors. raditional leadersranked above local councillors even more consistentlyin terms of their perceived ability to listen to people.

One of the key points that emerged from the overallanalysis of the survey findings is that we did not findrelationships in some places where we expected one.For example, with respect to socio-demographics andmodernization, education has a negative effect oninterest in expanding the role of traditional leaders,but it is by no means a dominant one. In addition,gender, age and urbanization do not appear to have asignificant effect: we do not see women or youth beingany less interested than other people in traditionalinstitutions.

Concerning state legitimacy, the findings are theopposite of what we expected. Te more legitimatepeople think the state is, the more they want traditionalleaders to also play a role. So it is not a contest in thesame way that we expected. Similarly, there is noapparent relationship between respondents supportfor democracy and the role they would like to seetraditional leaders play.

So again, support for traditional and formal governancestructures seems to be moving more together thanseparately. With regard to leadership attributes, how

well people feel theyre being listened to appears tobe a key reason why they want traditional leaders toretain their influence. In Somaliland, for example, myown research indicates that even though members ofthe Guurti are senior elders of the community, theirdoors are seen to be more open than those of MPs:people feel that they have much more access to Guurtimembers, so they go and see them. Nonetheless,

we do find that overall attitudes towards traditional

leaders and local governance councillors are positively

correlated. So there is a kind of competing incentivehere: if people rate their traditional leaders highly, theyare also more likely to do the same with their local

government councillors.

Finally, another important finding is that peopleessentially appear to want more of the same. Testrongest factor that explains the desire for traditionalleaders is their current level of influence. In countries

where traditional leaders have a strong influence peoplewant them to have more, while in countries wherethey have less influence the desire to see their influenceincrease is the weakest. Keep in mind, however, thateven in the latter set of survey countries around 50per cent of respondents still want more influence fortraditional leadership, which represents a fairly highlevel of demand.

In terms of policy conclusions, the survey findingsindicate that African governments need to considerintegrating traditional leaders into local governmentstructures. Past studies have often focused on thenegative aspects of this approach. For example, somestates want traditional leaders to rule in areas theycannot reach. Tis was common in the colonial era,

where indirect rule provided a way for small stateadministrations to manage territory they could nototherwise govern. It is also commonly hypothesized

that states want traditional leaders in order to capturetheir legitimacy and, for example, influence the waythat people vote.

Increasingly, however, our findings suggest that theymay also get better local government performanceby having leaders that the public supports and to

whom they feel they have access. Te surveys suggestthat ordinary Africans tend to perceive the state andtraditional leaders as part of a single integrated wholerather than as two competing entities. Tereforesupporting traditional leaders may well translate into

gains for the state, in ways that have not been widelyrecognized so far.

Finally, as Kidane Mengisteab also made clear, thereare no blueprints for how to do this. Finding thebest ways to integrate the two structures remains thebiggest challenge to be faced, because there are somany different systems and possible ways of doing it.In this respect one of the key questions that emergedfrom the survey concerns whether traditional leadersshould have seats in local councils, and if so, whetherthese seats should be elected or selected. Should they be

salaried or remain independent? Can they still be local

African governments need to

consider integrating traditional

leaders into local government

structures.


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representatives of communities if they are on a statesalary, or does that ultimately make them advocates ofthe state as opposed to their own community?

In some countries, an increase in the governance roleof traditional leaders has been accompanied by lawsrequiring them to be politically neutralwhich tendsto be seen as meaning that they will be more pro-government. For example, Malawis laws on traditionalleadership have required them to be neutral and not totake partisan stands. In the survey we asked if peoplethought that traditional leaders should sit on theirlocal government council or not, and if so, whetherthey should be elected by the people, appointed orselected in some other way. Te results indicate thatmost people feel that traditional leaders should be

elected to local government councils.

Tis question requires further exploration. Does itimply, for example, that different traditional leadersought to compete for certain seats? While the resultsare not completely clear on this issue, they do indicatethat overall support for elections in Africa is rising.People are increasingly committed to them as a way ofchoosing leaders, but there is also still an acceptance ofinstitutional dualism. In terms of partisan affiliation,people are fairly evenly divided, yet slightly in favourof being non-partisan. Again, however, there is a wide

difference across countries.

In Malawi, for example, the non-partisan requirementfor traditional leaders seems to have a high level ofpublic support. In contrast, in South Africa, anzaniaand Namibia there is stronger popular support for theright of traditional leaders to take a partisan stand.In general we also found very strong support for theidea that traditional leaders should have governmentsalaries. Tis could be due to a number of factors,not least that this would ease financial pressure oncommunities to provide support and bring in newresources.

Respondents

Dr. Daniel Abiye, Organization forSocial Science Research in Southernand Eastern Africa

Both papers are excellent: they complement each otherand give us a better picture of what is going on in thearea of governance and democracy building in Africa.

Whereas Kidane appears to be suggesting that the two

institutional systems we are attempting to reconcile areincompatible, Caroline maintains that what we haveis not necessarily competition but synergywhich

produces better governance results.

Both papers seem to be saying that not enough researchhas been done in this area. Future research shouldaddress some questions. We are talking here abouttradition, the informal versus the modern. But Africais so diverse. Are we assuming that there is a singlemodel of the traditional? With respect to centralgovernment, the understanding seems to be that thereis a single modeldemocratic government. So are weproposing a single model of traditional governance,or are we choosing best practices and then trying tocreate a model based on them?

Similarly, we keep on saying traditional leaders, butare we really just talking about male leaders? Kidanespaper focuses on chiefs, which is a male-dominantcategory. But Carolines paper looks at traditionalleaders, who could be either male or female. It seems tobe a very comprehensive term. Gender differences canbe brought out more in future studies. Also, we havenot addressed the question of religious leaders andinstitutions. Do we assume that they are synonymous

with traditional leaders? Finally, are we talking aboutone democratic order or various possible orders? Are

we discussing the Western model of democracy, or arewe simply comparing an African model of governancewith those other countries? Tis is a grey area thatneeds to be further addressed.

Victor Shale, Electoral Institute forthe Sustainability of Democracy in

Africa, South Africa

Both papers contribute significantly to the debateabout the roles and functions of traditional leaders in

Africa. I appreciated the categorizing of the existingliterature into three strands: those who view traditionalinstitutions as outdated structures that need to be doneaway with; those that emphasize the extent to whichtraditional institutions have been transformed by thecolonial experience; and those who maintain that youcannot wish away these institutions.

One of the things lacking in the literature is an attemptto explain the resilience of traditional institutions.Lesotho, for instance, has experienced three distinctpost-independence political epochs: one party, military

and multi-party rule. But throughout this chronically


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unstable political history, people have alwaysemphasized the importance of traditional institutions.How can this be explained? From a formal perspective

it could be argued that it is because traditionalinstitutions are enshrined in the constitution. We needto go deeper than that, however, to explore this areafurther.

From a procedural perspective, one of the interestingthings about the role of traditional institutionsrelates to questions of participation. How didpeople participate under the rule of a traditionalauthority, how do they do so now and in what

ways has participation changed over time? In orderto understand traditional institutions we have toappreciate their social dimension. radition needs to

be viewed as a gamut of values that are practised overtime; this is what gives life to traditional institutions.

In this sense traditional institutions are the epitomeof the society within which they operate. In mostcountries, of course, they have been subordinated, butthis does not dissolve their bond with the people. Incases such as Uganda legal instruments were used toget rid of traditional institutions. Te reality, however,is that formally denying the existence of traditionalinstitutions has not rendered them insignificant in theeyes of the public.

Plenary Discussion

Frederick Golooba-Mutebi, Makerere University,Uganda. A lot of specificity is lost by using the termtraditional leaders. In fact, there are different types oftraditional leaders: those from very old dynasties, theirsubordinate chiefs, chiefs who were created duringthe colonial era and those created by post-colonialgovernments. Are we referring to all of them here? Didthe Afrobarometer researchers and respondents clearlyunderstand what was meant by traditional leaders? If

so, they would not have claimed that traditional leadersplay such a significant role in conflict resolution inUganda. In fact, conflict in Uganda is usually betweenlocally elected leaders and the police rather than electedand traditional leaders, because at the community leveltraditional leaders are virtually non-existent.

Similarly, with regard to the questions the surveyasked about whether traditional leaders should begiven seats in local councils or be salaried, it dependson which leaders you are talking to. I am from one of

Africas oldest dynasties and it is inconceivable that

we would want our king to be given a salary by the

government. Indeed, the Ugandan government givessalaries to traditional leaders, but in my community

we rejected this because it was seen a s an at tempt to

co-opt our king. Moreover, it is inconceivable that hewould want, or that we would want him, to sit on alocal council.

Dr. Patrick Molutsi, Tertiary Education Council,Botswana. Tere is a problem in approaching thingsahistorically. anzania and Botswana, for example,

were under two different colonial regimes: indirectrule of the British type made a lot of difference tothe approach to traditional leadership as comparedto German or Portuguese rule, both of whichdownplayed their role. Second, a distinction needsto be made between monarchical and traditionaldecentralized chieftaincy types of leadership. TeLesotho, Swaziland, Uganda or even the GhanaianKumasi monarchies cannot be readily compared inthe same way as the chieftaincies in other places. Tisis a fundamental distinction, because in each case therelationship with the modern state is different.

Overall one needs to be very careful when usingstatistical assessment in this area, as the Afrobarometeris doing. You are bringing out the local voices, whichis important, but we should be careful how we drawconclusions about and from those voices. Concerning

conflict, the role of chiefs and traditional leaders,even the monarchies, is much broader than simplyreaching settlements. In Botswana, for example, theydeal with customary affairs, marriage and contractualrelationships and a host of other ceremonial functions.Tis might actually explain why even the elite stillsupport their chiefs.

Dr. Don Jon Omale, Salem University, Nigeria.raditional leadership in Africa, particularly inNigeria, has indeed been diluted by politicians,

with the result that traditional chiefs and leaders in

rural areas are no longer holding onto traditionalbeliefs, but rather are becoming political institutionsthemselves. At the same time, the failure ofconventional political institutions in Nigeria hasresulted in modern uneducated youth beginning tolook towards traditional institutions as the only onescapable of servicing the political system. A surveyof both educated and uneducated Nigerians wouldshow that support for traditional governors is quitehigh. Until this dualism in governance is addressedin countries such as Nigeria, they will not advancedemocratically: traditional institutions are very

strong and the public perceives them positively.


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Dr. Martin Rupiya, African Public Policy andResearch Institute, South Africa. Kidanes paperidentified two clearly demarcated governance systems,

and the allocation of socio-economic resources as thepoint at which conflict occurs between them. Is itcorrect to identify this as a binary system, or do weneed to examine the issue further? Additionally, can

we simply accept the view that the traditional systemis all about reconciliation and the formal system isalways confrontational? Te really important point is

where the two systems clash, because the question is:what then? We need to explore this issue further.

In liberation movement-type countries such asZimbabwe, Ethiopia, Mozambique and Angola, therehas been a very deliberate use of traditional systems.Initially the approach was to dispense with them until10 to 15 years into independence, when the politicalelite began to realize that they needed the traditionalsystems. Once their own mass popularity began toebb, the political elite went back and started allocatingdistinct political roles to traditional systems.

Ellen Sithole, Human Rights Commission,Zimbabwe. Regarding Kidanes analysis of therole of traditional leadership in rural areas, we alsosee traditional leaders getting involved in capitalistdevelopment, for example with respect to mining

companies that move into rural areas. And in someaspects of their lives people in rural areas are effectivelyurbanized, while in other respects traditional authoritiesstill play a role. I am also curious about the reasons

why women are apparently supportive of traditionalleaderships, and the role they perceive for them.

Dr. Raquel Yrigoyen Fajardo, InternationalInstitute on Law and Society, Peru.Tere are a lotof differences between Latin America and Africa, butalso some issues in common that are missing from theanalysis. First of all is the colonial past. raditional

authorities were in some way permitted, so people feltclose to them in the sense of crucial affinity, languageand norms. oday, people still feel close to traditionalor local authorities due to shared language and culture,but also in part due to a resistance to the recycledlegacies of colonialism.

I also missed a sense of what happened in Africancountries during the post-independence years. In Latin

America the whole political system was imported, sopeople again saw it as an alien, imposed system. Privateproperty was imported as part of the post-independence

liberal values package, but this was used by Creoles

to expand their property at the expense of indigenouspeoples. For this reason I find it difficult to associatesome specific institutions of modern capitalism with

democracy.

Gihan Abouzeid, Ministry of Family andPopulation & Cairo University, Egypt. How validis it to use modern criteria when discussing traditionalstructures? For example, can we use the same criteriaof participation; does the idea of voting make anysense in the context of traditional structures? Te logicof these structures is totally different from moderncriteria, so I think we need a different analyticalapproach. With regard to Somaliland, do you thinkthe Guurtis strength reflects the real situation in thecountry, or is it more due to the weakness of moderngovernance structures vis--vis the traditional system?

Ambassador Olesegun Akinsanya, Institute forSecurity Studies, Addis Ababa. Te observationthat more attention should be given to the historical,pre-colonial aspects of traditional governance systemsis pertinent. Te element of growth and developmentalso comes into focus, and the approach should bebased not on a dichotomy of the modern and thetraditional, but how to achieve a blend. In Nigeria,for example, traditional chiefs are doing a lot tocomplement the activities of the modern state.

Ranjana Kumari, Centre for Social Research, India.An analysis of the role of intermediary institutionsbetween traditional structures and the modernstatefor example political parties and communityand civil society organizationsneeds to be includedto help build the process of reconciliation betweenthe two systems. Tis is important in the Indianexperiencenot that there is no tension between thetwo systemsbecause this is one of the ways in whichthe relationship between the two is being resolved.

Secondly, India has experienced decentralization, andlocal traditional governance systems have genuinelybeen integrated into the modern state. Te localdimension deserves greater attention in the discussionand analysis here.

Dr. Lansana Gberie, Institute for Security Studies,Addis Ababa. What approach should be taken to thedifference in the relationship and interaction betweentraditional institutions and the modern state incountriesEthiopia and Liberia in particularwherethere was no serious experience of colonialism and

those where there were long periods of colonial rule?


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Second, how do we explain the persistence oftraditional institutions in countries where the state hascompletely collapsed and traditional institutions have

also been thoroughly undermined, as has been thecase in Liberia and Sierra Leone following protractedperiods of conflict? Many chiefs were displacedor killed, traditional institutions were completelysubverted, yet at the end of war there is still a basicsense of the persistence of traditional institutions.How should this be explained?

Presenters Responses

Kidane Mengisteab. Te research that informed mypaper was conducted in a range of communities in

South Africa, Ethiopia, Kenya and Somaliland, 11 intotal, including both chieftaincy and non-chieftaincysystems. Our interest was in finding out the extent to

which traditional systems stil l operate and are utilizedby people; we focused on institutions rather thanchiefs. Before conducting surveys, however, we alsodid both key informant and focus group interviews,so we had a pretty good idea of what the systemslooked like.

Kenya has recognized the sharia court system, but evenmore interesting is how Kenya recognizes communityownership of land. Tis is a very challenging issue,because it implies the need to define what a communityis: is it the dominant ethnic group, and what happensto people who have settled in a different community?Tis implies the beginnings of recognizing customaryownership of land.

Some of the questions posed arise from my failureto clarify what informed the paper. We were notinterested in making judgements about which systemis good or bad. Ultimately what we find is that the levelof utilization of traditional institutional systems is veryhigh. o address the question about the strength of

the Guurti, they played a major role in bringing theSomali clans together after the civil war and managedto carve out an important role for themselves in theprocess. More importantly, however, in a context in

which conflicts tend to be along clan lines, the Guurticreates a platform for all clans to negotiate and buildconsensus. Trough their representatives in the Guurti,the clans thus have a veto power over any law.

Power asymmetries are critical: if someone gets beatenup in an urban area they can go to the nearest policestation. In rural areas, however, your only option is

the traditional system. We are not saying that the

traditional system does not operate in urban areas, justthat it is stronger in rural areas. As for the transitionalprocess, there are incoherent institutions; if point A

represents this incoherence, point B would simplysymbolize a coherent system of institutions. At the levelof modes of production, perhaps subsistence farmersand pastoralists can be transformed into participantsin an exchange economy; this is the (not very clearlyarticulated) notion of transition we have in mind.

Broadly speaking I would define democracy as asystem that enables the general population to controldecision making. Tat is the ultimate goal, but themechanisms by which it does sobe it elections,appointment or Guurti-type structuresneed tobe analyzed in the context of the realities of a givencountry. As for liberal democracies in which the stateis limited, the sanctity of private property is enshrined,so I am not going in that direction, but rather simplyexplaining whether communal or private property isthe norm in a given context.

Carolyn Logan. On the historical dimension, I wouldfocus far less exclusively on colonialism because assomeone mentioned, traditional leaders have gonethrough many kinds of changes during the post-colonial era: they have been abolished, restored andso on, often by the same government. Tis is what

happened in post-independence Somalia and manyother countries, as was noted in the discussion.Initially traditional leaders were abolished, but tenyears down the road when things were not going sosmoothly the government started to revive them. Tisis why focusing purely on colonialism provides far toolimited a view in terms of what has happened to theseinstitutions historically.

In terms of terminology, it is always a challenge tocome up with questions that work across countries,not only due to huge cross-country differences but also

significant in-country disparities. We do, however,work with local partners in the countries surveyed.Te questionnaires are tested to ensure that they makesense to people, and interviewers report back on whichkinds of questions people have trouble with.

Specifically on Uganda, we have to be a little bitcautious in saying that people are giving the wronganswers. We are trying to talk about broader issuescontinentally and I think that we have research resultsthat can speak to that. Overall we are getting somefairly consistent responses indicating that however

they understand the term, people feel that traditional


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leaders are still important and want them to play a rolein governance.

Te question about women is a particularly importantone. I do not think that chiefs simply meansmenI have lived in communities where the chief

was a womanbut clearly they do mostly tend tobe male. In terms of understanding why women are

just as interested in traditiona l leadersand in some

cases the institutions are changing somewhat in thedirection of increased womens participationmyspeculation at this point would be that it is because

they are accessible in a way that elected leaders donttend to be. In addition, one of their key roles is inresolving disputes, which tends to be an importantconcern for womenespecially if this is wherethey can reliably get disputes resolved within theircommunities.


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Fredrick Golooba-Mutebi, Instituteof Social Research, MakerereUniversity, Uganda. Rooting

Governance in African Realities: AreCustomary Institutions the Answer?

Te importance of rooting support for democracyand governance in country realities is the mainpremise of the Africa, Power and Politics Programme(APPP)7. Te importance of finding something betterthan established approaches to institutions in Africacalls for serious, evidence-based discussion. Rootinggovernance in African realities is not reducible totaking customary institutions more seriously. Indeed,customary institutions may be more a part of the

problem than the solution.

Another area in which greater realism and contextsensitivity is required is the democracy promotionagenda. Tere are good reasons for thinking that untildemocracy is better established than it is today, it willbe of little help in improving aspects of governancethat contribute to economic progress and the reductionand prevention of poverty. Facilitating democracystrengthening therefore involves greater realism abouttimetables and aspirations regarding democracy itself.

Te considerable diversity of social and politicalpatterns across Africa should not blind us to importantthreads of commonality and continuity based on theassociation of power with paternity and the dutiesand responsibilities of fatherhood. Te similaritiesalso include compelling notions of accountability andmoral obligation within kin groups and ethnic groups.Tese notions are not inherently anti-developmental,and there is ample evidence from around the world thatlocal institutions work best when they build on localunderstandings of power, authority and organization

7

rather than impose external behaviours. Developmentefforts should therefore adopt a fresh approach andstart to build on existing notions of moral obligationand accountabilityand stop working against them.

With respect to custom, APPP research in Ghanahas focused on local justice provision. A comparativestudy examined three kinds of dispute settlementacross the country: the magistrates court; alternativedispute resolution services offered by the NationalCommission for Human Rights and Administrative

Justice; and the tribunals of the new customary land

secretariats established by the Ministry of Landsto manage customary land. Te study exploredthe following questions: do ordinary people trustthese institutions because their approach to justicecorresponds to Ghanaian customs and practices? Howaccessible are they to ordinary people? How effectiveand affordable are they? How quickly are cases settled?How enforceable are their remedies?

Te findings challenge conventional stereotypes ofAfrican courts, in particular the notion that popularbeliefs are based on traditional restorative forms of

justice and the imperative of socia l harmony. Tey

Session 2:

Rooting Governance in African Realities

Te problem with externally

funded projects is that they

rarely allow the necessary space

for local initiatives to take shape.


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also suggest that ordinary Ghanaians have a strongpreference for justice involving a balanced processto establish the facts, which in turn requires an

impartial judge.

Te study found that magistrates courts are the mostpopular in terms of their congruence with popularexpectations; customary-based land dispute committees

were the least popular. Institutions with the strongestconnections to customary law are not, it seems,particularly attuned to popular concepts of justice andfairness. By contrast, the more popular magistratescourts are backed by the state and are relatively wellresourced and staffed with members of establishedprofessions; they also offer the authoritative enforcementof judgements. Tey successfully combine the remediesand enforceability that people want with a balanced,impartial process. Tey also use a wide range of codes,not just formal law but also customary law and localcultural rules, to make common-sense judgements.

Constructing institutions that are effective indelivering judicial services may thus require revisingcustomary arrangements. However, it should not beassumed that customary arrangements will necessarilybe the most suited to the purpose. In many contexts,customary institutions will be one of a number ofhybrid types with the potential to contribute to more

rooted forms of governance. Simply being customarywill not be a particular advantage.

Our findings indicate that an important factor is whethera countrys particular brand of neo-patrimonialismsystematically undermines performance in key areasof public goods provision, or whether it promotes suchdisciplines. It is conventional to associate public sectorperformance with downward accountability to citizensand service users as a major hope for democraticconsolidation. Our findings on the importance of top-down discipline, however, cast doubts on the likely

contribution of several types of bottom-up constraints,at least in the foreseeable future.

Tese doubts are based on a combination of empiricalevidence, published studies and analytical work oninstitutions and collective action. Tey underscore thesignificant limits of bottom-up pressures as visualizedby participatory designs of service provision when thereare large status differences between users and providers.

As for citizen pressure articulated through electoralpolitics, there are strong analytical and empiricalreasons for not counting on young democracies. For

reasons that are difficult to change quickly, leaders in

Tere is ample evidence that

local institutions work best

when they build on local

understandings of power,

authority and organization.

young democracies do not seek election or re-electionon a programmatic basis. Since electorates do not voteon the basis of programmatic commitments made bycandidates for election, prospective leaders interest in

raising the quality of general service delivery will bemuted at best.

In addition, local electoral processes often discouragelocal leaders from imposing measures such asenvironmental sanitation or protection rules, whichare important public goods but not immediatelypopular with the people they represent. In this respectthe advantage of elected leaders over the non-electedcommissioners or chiefs of previous eras may be calledinto question. For many aspects of public goodsprovision there is no alternative to administrativeaction backed by governmental authority.

What kind of governmental authorities are reallyappropriate? Tey may be ones that harness ideas aboutleadership, obligation and accountability that havehistorical roots. Tis may mean reinventing chieflyor monarchical leadership, as seems to have happenedsemi-spontaneously in some urban areas of Malawi.It may also mean the explicit neo-traditionalism thatis the future of Rwandas public performance system.

What about the rootedness of self-help?

Te best positive examples of collective action tend to

be grounded in peoples recollections about the past,based on observations in the present. Tey tend toinvolve chiefly leadership, or a delegated authority ofcolonial chiefs or kings, which supports the idea thatcustomary institutions can be an important resource.On the other hand, examples of self-help initiatives orlocal reforms observed during APPPs fieldwork werecombinations of and synergies between different sortsof local leadership, including chiefs and elected orappointed government officials.

Our hypothesis is that successful institutional

arrangements for public goods provision through


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self-help will likely be those that are locally anchored.Tey should be open ended and flexible enough toovercome context-specific problems that constrain

collective action. In other words, it should be possibleto find local solutions for local problems with localactors, taking into account local constraints andusing mainly local resources.

Te problem with externally funded projects isthat they rarely allow the necessary space for localinitiatives to take shape. Local solutions are muchmore likely to be sustainable than solutions based onmodels of organization that have been used elsewhere.Institutions that are able to build at least partly on thefamiliar foundations of past practices are socially lesscostly and therefore more likely to be feasible.

Tis helps to explain why institutions that build onexisting foundations appear to be more successful. Itis a universal explanation, and does not assume that

Africans are typically more wedded to tradition orparticularly disinclined to embark upon institutionalchange. Tis explanation provides an additional set ofreasons to argue that customary institutions may bemore relevant to development and democratization in

Africa today than was previously thought.

On the other hand, it also clarifies the fact that

institutional elements inherited from the past areonly useful to the extent that they support problemsolving. Te relevant legacies of the past may ormay not be directly associated with customaryinstitutions. Customary governance has a significantrole in thinking about democracy building in Africa.Customary institutions are not, however, the answer.Moreover, the question here should not be just aboutdemocracy.

Plenary Discussion

Dr. Jorge Vargas Cullel, State of the NationProgramme, Costa Rica. You call on us to unbundlethe concept of customary institutions, and point outtheir problematic relationship with democratization.

And you seem to be inclined towards hybridinstitutions. But who hybridizes those institutions?

What actors and forces can really build the kind ofmixed institutions that are able to deliver the publicservice provision of goods? Who makes the selection,and on what basis?

Dr. Peter deSouza. I would like to respond to the

papers theoretical ambition. In as much as it constitutes

a critique of established development policy, I think thecase was made. But the theoretical ambition is greater,and seems a little unprocessed. For example, you say that

local institutions work best when local understandingsof power are present, and work less well when externalbehaviours are imposed. But external behaviours havetobe imposed in the process of building a larger politicalcommunity. Local understandings cannot help us buildthe greater political community of the nation state:the larger logic of the modern, democratic nation statehas to be introduced on the basis of imposing externalbehaviours.

In the justice domain, you state that the customa-ry system is procedurally too formal, whereas themagistrates court is flexible and thus more acceptableto the population. However, it could equally be thecase that the magistrates court is externally imposedand the traditional system is locally rooted. Moreover,once the argument is opened up to the notion ofappropriate solutions, you are again talking aboutexternal imposition. Appropriate solutions are notnecessarily local solutions. Tey are not replicationsof tradition: they come from an evaluation ofpossibilities.

Mohammed Musa Mahmodi, Independent HumanRights Commission, Afghanistan. When we talk

about customary governance, it only ever seems to bein the context of fragile or failed states. Customarystructures are always filling the gap created bythe failure of the state to provide basic servicesmaintaining the rule of law or control over themeans of violence, for example. But if the focus ison democratic governance, there may not be muchroom left for customary practices or traditionalmechanisms to come into play. And in any case,this would only be effective if modern democraticprinciples are applied to customary structures.

Mnica Novillo Gonzles, Coordinacin de laMujer, Bolivia. Discussions of democracy often seemto be kept separate from examinations of economic,social, cultural and other systems, but they are alllinked together. If the aim is radical democracy thenissues of economics and the redistribution of powerneed to be kept in focus. Popular disenchantment

with democracy due to the fai lure of democraticinstitutions to respond properly to the people wasmentioned earlier. In Latin America many people nolonger believe in political parties, as they are regardedas simply monopolizing popular representation. In

Bolivia there is a widespread feeling that people are


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not properly represented, and talk of political parties

is almost seen as using offensive language: in terms ofrepresentation, the emphasis is on social movements.

You concluded by saying that the question should notbe just about democracy. We should indeed ask aboutthe way our societies are organized and establish ifthere is a genuine political commitment to redistributepower and wealth.

Prof. Sheila Bunwaree, University of Mauritius,Mauritius. It is extremely important to avoidbeing parochial in Africa with respect to customarygovernance. Te concept of governance as a wholeneeds to be enlarged to include a complementary,cross-regional perspective that draws on differentdisciplines and interventions. alk of rooting in

African realities is far more present in rhetoric thanaction. In particular, the economic policies that arevery often superimposed in Africa today are reallyold wine in new bottles. When we look at currentasymmetries in the distribution of entitlements in

Africa, both between and within countries, it raises abasic question: is promoting democracy really focusedon delivering a better quality of life to the

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