CULTURE, CONFLICT RESOLUTION AND THE LEGACY OF COLONIALISM By
Melissa Lauren Gang
Submitted to the
Faculty of the School of International Service
of American University
in Partial Fulfillment of
the requirements for the Degree of
Master of Arts
in
International Peace and Conflict Resolution
Chair:
Anthony Wanis-St. John, PhD
Mohammed Abu-Nimer, PhD
Dean of the School of International Service
Date
© Melissa Gang
2010
American University
Washington, D.C. 20016
Abstract
Colonialism impacted local cultures far beyond their infrastructure, government and
geography. In addition to eroding indigenous power structures, the structural violence
inflicted during colonialism left native populations with lasting self-doubt and rejection
of traditional practices. Among these rejected traditions are informal processes of
resolving conflict. Conflict resolution methods in different cultures often vary greatly in
underlying values and perceptions. Western judicial systems reflect individualistic,
highly uncertainty avoidant, low-context tendencies, while indigenous conflict resolution
methods reflect collectivistic, minimally uncertainty avoidant, high-context tendencies.
Research into the current state of formal courts and informal justice forums in presentday rural Cameroon and Vanuatu provides case study-based evidence arguing that the
transition from restorative justice to retributive justice catalyzed by colonialism has
effectively crippled both systems of justice. Due to impacted value systems, neither the
restorative, social harmony focus of traditional processes, nor the retributive,
compensatory justice focus of the formal judicial system make the available forums
wholly appropriate or adequate resources.
2
TABLE OF CONTENTS INTRODUCTION........................................................................................................................................4 Methodology ............................................................................................................................................................. 8 THE NATURE OF COLONIALISM....................................................................................................... 14 Decentralized despotism and the dual court system ...........................................................................15 Internal colonialism and lasting trauma ..................................................................................................21 CULTURAL COLLISION ........................................................................................................................ 28 Collectivism and individualism ......................................................................................................................30 Uncertainty avoidance.......................................................................................................................................34 High­context and low­context cultures......................................................................................................38 The downfall of traditional conflict resolution systems.....................................................................45 Defining conflict, defining identity...............................................................................................................51 BEFORE AND AFTER ............................................................................................................................ 55 Restorative justice and retributive justice................................................................................................59 Reconciling self with whom? ...........................................................................................................................63 Failure to transplant formal justice ............................................................................................................67 CONCLUSION........................................................................................................................................... 80 The future of conflict resolution....................................................................................................................84 REFERENCES........................................................................................................................................... 87 3
Introduction
In a world of increasing global interaction, the need to recognize profound
cultural differences is critical. The pervasive nature of cultural values and traditions is
starting to gain validity on diplomatic and developmental fronts. Yet over-reliance on
cultural definitions as a means of understanding one another is a precarious move;
cultures can be dynamic and cultural behavior misleading. The idea that culture is static
or impervious to influence calls into question the evolving values and expressions of
many of the world's cultures.
Initial interactions between significantly different cultures provide insight into the
evolution of cultural norms and the impacts those cultures may have had on one another.
Colonialism is one such opportunity. A time when two or more drastically different
peoples tried to create a common existence, colonialism and the subsequent changes in
indigenous society post-independence provide a window into the cause-effect cycle of
human behavior and belief on a societal level.
This research will explore the repercussions of the imposition of colonial justice
systems on indigenous conflict resolution systems in former colonies Cameroon and
Vanuatu. Through the lens of conflict management and resolution, this report will
highlight the evolution of post-colonial culture in these two nations as a direct result of
interaction with foreign cultures. Far from being an immediate, solitary change, the
resulting reverberation of shifting cultural values over time proves to be much more
pernicious than a one-time impact.
Conflict resolution is an ideal framework from which to analyze cultural mores
because of the manner in which people perceive, communicate, interact and relate to each
other. The buildup of conflict may involve complicated action chains or minimal verbal
4
exchanges; conflict resolution may take any form ranging from a court order to a healing
ceremony. Inquiry into the formation of conflict and its appropriate resolution reveals
distinct evidence of cultural values, social processes, and collective identity. While
conflict resolution methods may be less immediately obvious an example of cultural
difference than language or clothing, they are rife with behavioral and ethical indicators.
Properly employed, cultural expertise is a remarkable tool for the skill set of
politicians, aid providers, researchers, negotiators - even combatants. Today, many more
professional roles include an intercultural component. Knowledge of cultural nuances
and sensitivity to the extent of cultural differences can determine one's effectiveness in
working with others. The more equipped people are to observe and understand the
impacts of interacting cultures and the unconscious ability of cultures to transform, the
better.
To focus the research for this inquiry, several questions were considered. The
initial questions attempt to frame the larger context: What was the long-term impact of
colonialism, both structurally and psychologically, on the native population? How did the
cultures of colonizer and colonized affect one another? The answers are discussed with a
focus on the mental and emotional reckoning of the native population, as well as their
modern-day relationship with former oppressors and other foreign bodies.
Subsequent questions delve into the conflict-perception and resolution-perception
of these interacting cultures: How does each culture's system of conflict resolution reflect
the values and identities of its people? This question was answered through examination
of each system and the related values and needs of the society responsible for its creation.
5
To focus on the transition of culture through conflict resolution, the question was
posed: What is the current state of the indigenous conflict resolution systems in formerly
colonized states, and why? The answer will use primary resources and interviews as well
as informal observation to argue that the utter ineffectiveness and inappropriateness of
every form of conflict resolution in Cameroon and Vanuatu is a direct result of the
interaction of these states with their former colonizers. The final question points ahead
for the applicability of this finding: What is the future for these states in terms of
effective and meaningful conflict resolution options?
Terms to be used throughout this paper will be defined here to clarify their
meaning and minimize confusion.
•
Traditional conflict resolution systems or informal justice systems are
culturally established processes of addressing conflict with intention to resolve it
that have existed since pre-colonial times and are generally still in use in rural or
developing areas.
•
Formal justice systems or formal conflict resolution systems refer to processes
of addressing conflict created and run by the state. These may include systems
such as the police, the courts, and penal reform.
•
Within the broader formal justice category, Western conflict resolution systems
are those formal systems designed by and typically associated with the West.
There also exist Western informal conflict resolution systems as introduced
through Western religions, community models and economic practices.
•
Traditional conflict resolution sori ceremonies in Vanuatu, Melanesia refer to a
gathering of the local community around two or more parties in a dispute for the
6
purpose of resolving the conflict. A local chief or community leader may act as
an arbiter in some settings. Typically each party will apologize, pay a fine of a
pig, yams or currency, and shake hands to symbolize the acceptance of one
another's apology and the resolution of the conflict.
•
Traditional councils or village councils in a Cameroonian context are an elected
body of community members who serve a governing function at the local level.
A main task of these councils is to arbitrate --though councilors refer to the
process as mediation-- between local disputants in a palaba or dispute,
frequently fining one or both parties for infractions against the other or against
the "court" during proceedings.
This research will argue that due to the momentum of the influence of Western
conflict resolution systems during colonization, cultural values of the indigenous people
were altered such that their traditional conflict resolution methods are rendered no longer
applicable. This argument does not intend to suggest that traditional informal conflict
resolution systems, nor indigenous cultural values, are universally superior to those of the
colonizers. Neither cultural system is flawless, though authenticity of ownership and
local origin play a significant role in overall applicability and appropriateness.
Ownership and origin of such a social process cannot be manufactured.
Analyzing the effect of colonialism on conflict resolution forums risks a tendency
towards pro-indigenous system bias. This risk must recognize that in many instances,
traditional conflict resolution systems have failed to prevent violence or recurrence of the
conflict (Mac Ginty, 2008). Therefore, while this study heavily criticizes the actions of
colonizing powers, it does not mean to suggest that in all cases traditional indigenous
7
cultural systems were perfect. This research will show that value systems are subject to
influence, and the subsequent adaptations may result in the obsolescence of more than
one social forum.
Methodology
The goal of the research conducted for this paper was to question the suitability and
functionality of the different conflict resolution forums and examine to what extent the
cultural clash of colonialism played a role. To do this, I reflected on the experience of
living in two post-colonial nations and conducted formal research on the justice forums
available.
Research for this study includes interviews with professional members of the
formal and informal justice systems in Kumba, Southwest Province, Cameroon, as well
as interviews with citizens currently in the process of seeking justice at the formal and
informal levels of society. These interviews took place throughout July and August of
2009 while I was working at a human rights NGO in Kumba, Cameroon. The work focus
at that time was to explore barriers to accessing justice in the Southwest Province at all
levels of formality in the conflict resolution system. Many of the formal interviews of
those in the formal justice system were executed with an additional interviewer present, a
British co-worker. The interview method was based around a series of questions
designed to probe common beliefs and circumstances about formal and informal justice
in Cameroon, but quite frequently the interviewee departed from the topic at hand to
speak at length on a tangential matter (see Appendix A for barrister interview transcripts
& Appendix B for High Court personnel interview transcripts). These interviews were
held in English, the language of the formal court system in Kumba, in which all
8
interviewees were fluent by virtue of their legal education. In addition to referencing
thorough interview notes, I draw meaning from the physical experience of the interviews
using observation of non-verbal gestures, tone and emotion.
Gathering data for the informal traditional councils of Cameroon required a
different approach. For these I used a needs assessment interview that was later compiled
into statistics for each village. These interviews were conducted in English and
Cameroonian Pidgin at the discretion of the interviewee with the help of three co-workers
from the NGO including two locals. Due to the fact that many village councilors were
illiterate, in most cases the interview questions were communicated verbally to the
interviewee and then recorded on the questionnaire. Councilors who were able to read
and write answered all the questions themselves in writing. These interviews were
translated into English and compiled for analysis of the needs of the traditional councils.
(For needs assessment interview results, see Chapter Two.)
The final set of interviews took place in the halls of the High Court in Kumba
where many civilians wait on a daily basis for court hearings or to see an official
(Appendix C). Along with a co-worker, I conducted these interviews very informally by
taking volunteer interviewees. The intention was to clarify participant satisfaction with
the available conflict resolution options and contrast these opinions with those of the
service providers, both formal and informal.
Additionally, this research incorporates three years of informal observation and
residence in a rural area of Malekula, Vanuatu, during which time many local conflicts
were resolved at the community level. The experience of living and working on two
different mission school campuses from 2004 to 2007 was vastly informative.
9
Throughout this period I was not only witness to but participant in interpersonal disputes
and informal resolution methods.
As a member of the community it was natural to
observe community- and national-level conflicts, as well as to learn secondhand about the
formal court system through friends and neighbors' involvement.
An important consideration regarding both informal and formal research conducted
for this work is the criteria used to select the sample. In both Cameroon and Vanuatu,
interviews and interactions were held with those who were voluntarily willing and able to
communicate with a foreigner and a female. People self-selected into this category;
therefore the sample is not representative of the whole, and as a result the work is by
nature exploratory rather than capable of designating causality or generalizing about the
whole.
The limitations of the research conducted in Cameroon include potential
miscommunication or mistranslation. There is also the chance that the unusual nature of
the interviews in which a white foreigner questioned an African native might encourage
optimization or embellishment of answers, due to the unstated promise of positive
repercussions. However, those interviewed were quite clear on the nature and purpose of
the interaction, which should maximize the honesty and transparency of responses.
The greatest limitation of the broader research in Cameroon was my lack of
experience there. At the time of the interviews, I had been living in Kumba for nearly
two months, hardly an ideal amount of longevity. Further, lack of linguistic ability put up
a barrier between myself and many experiences (observing a council mediation) and
people who may have been helpful. Several native co-workers provided language
assistance, though relevant moments may have been lost in the process.
10
Participant observation research was conducted in Vanuatu, and detailed personal
journals and hundreds of letters over three years contributed to extensive cultural
awareness. The data shared from Vanuatu for this study comes from personal observation
of cultural and traditional norms as well as first and second-hand knowledge of others'
experience in all manner of conflict resolution systems.
The main limitation of this type of informal data collection is the risk of
secondhand knowledge containing exaggeration or false information. However, such an
occurrence would provide insight into cultural beliefs and stereotypes that may still be
relevant. Additionally there is the risk of my misunderstanding or misinterpreting stories
or events; this possibility is minimized as much as possible due to extensive language and
cultural training.
This exploratory report takes what anthropologist and conflict resolution theorist
Kevin Avruch calls an emic approach (Avruch, 1998). The emic approach is known for
using a native institution or term as a framework for analysis. In this report it is done in
order to provide a view of the deep roots of cultural contexts of both Cameroon and
Vanuatu; each will feature a different, individual and culturally specific form of informal
conflict resolution that will be considered in detail. As Avruch warns, the danger with an
emic approach is its tendency to lead to assumptions about the universality or
timelessness of the particular model in question (Avruch, 1998). The fluidity of cultural
mores and conflict resolution processes is undeniable, and with this awareness, this work
confirms the precise relevance and narrow applicability of such an approach. In doing
so, perhaps exploratory research such as this may fulfill Avruch's praise that the emic
approach "is literally indispensable for a cultural understanding of conflict and its
11
management or resolution" (Avruch, 1998: 63).
Cameroon and Vanuatu share a number of interesting characteristics, including dual
colonization (jointly colonized by France and Britain), a history of subsistence
agriculture, and rural areas based on a village system even today. Despite considerable
acculturation, I was a guest in these countries and offer this narrative with the due respect
of an outside observer.
The first chapter of this work will address the history of colonialism in both
countries. Theories from relevant literature will be considered, providing a background
for the conclusion that colonialism created an inferiority complex within native
populations of colonized states. Rising to the level of societal self-hatred, this complex
contributed to the rejection of traditional cultural values and norms. Additionally, the
paper will argue that colonialism irreparably undermined the original indigenous power
structure, while installing a state-mandated system of power so alien to the native
population that it has not yet reached a level of regular operation. An historical analysis
will give context to the present-day situation in post-independence states.
The collision of cultures is the subject of the second chapter. This focus will
necessitate a review of popular measures of cultural analysis. Cultural indicators will
provide insight into the disparity of cultural values integrated into the conflict resolution
systems in Cameroon and Vanuatu in order to expose the differential in the deeper
collective subconscious. An analysis of the gradual enervation of traditional conflict
resolution methods concludes the chapter.
The next chapter will explore the formal justice forums established during
colonialism. Examples from first hand research and informal observation will point to
12
the impracticality of these Western forms of conflict resolution in a new cultural context.
The current state of both conflict resolution forums will be explained in light of the
findings of the cultural indicators. Finally, the paper will offer a potential solution to the
problem of ineffective and obsolete conflict resolution practices in Cameroon and
Vanuatu.
13
Chapter One
The nature of colonialism
Colonialism by any other name is still colonialism,
a crime against nature, peace and humanity. -John Trudell, 1988
This chapter will reference several pieces of literature on colonialism and the
lasting cultural impacts. The work of Mahmood Mamdani, African historian and political
scholar, is used extensively in the discussion of colonialism. Mamdani's expertise on the
subject gives weight to his theory of decentralized despotism, a crucial concept of the
political structure used by colonists to wield racialized power. Decentralized despotism
is especially relevant to this work as an explanation of the consequence of the state's
political intentions combined with the indigenous need to recognize custom and tradition.
The state's exploitation of indigenous vulnerability calls upon Becky Tatum's
work as a historian and criminologist. Tatum's theory of internal colonialism is useful to
this research in exploring the ways in which colonialism impacted identity in the longterm. Internal colonialism as Tatum reveals it is one of the main factors contributing to
the depreciated state of informal conflict resolution forums in Cameroon and Vanuatu
today. Both Mamdani and Tatum's theories are further reinforced by the work of conflict
resolution theorist Johan Galtung. Galtung's original concepts of structural violence and
negative and positive peace explain the relevance of decentralized despotism and internal
colonialism in the larger context of social environment.
That colonialism involved the oppression of a people in exchange for the material
gain of the colonizing country is not a contentious claim. Reparations, acknowledgments
and in some cases, apologies have been offered in the fallout of colonization. All too
often, the visible damages of colonization are limited to the exploitation of natural
14
resources or native populations. "To deny or ignore the colonial foundations of a society
does nothing to rectify centuries of injustice." (Gabbidon, 2010: 227)
An errant view such as this disregards the subtle but significant unfolding impacts
of a colonial authority: the creation of the state, and with it borders, laws, and internal
structures of power. The consequences of arbitrarily manufacturing borders and states
are substantial. Some theorists claim that African boundaries are doubly artificial
because they are not expressions of indigenous strategy or environment (Aghelmo &
Ibhasebhor, 2006). "When you see straight lines on a map, you can be sure of one thing:
Anglos were here," quipped conflict resolution theorist Johan Galtung (American
University lecture, 28 April 2010). The misdirection of these geographical decisions,
made on behalf of colonial citizens but without their input, can be seen in the
longstanding wars over borders and sovereignty, in the failure to match constitutions or
practices with signed UN conventions. Even the level of corruption that plagues
government and public sector institutions to date is reminiscent of the cronyism and
prejudice characteristic of colonialism.
Decentralized despotism and the dual court system
Colonialism as a general concept does not rationally point to the dysfunction of
current justice systems in post-colonial societies. Within the broader spectrum of
colonialism there are tactical actions and reactions that begin to offer an explanation.
What were these systems of empowerment and disempowerment, of structure and
disorder? Were they an unintended effect of the process of foreign governance or action
towards a consciously anticipated motive? Literature from many scholars on the subject
15
will illuminate the idea that discrete yet fundamental harm to native social organization,
tradition and identity was a direct objective of colonizing powers.
African history and political scholar Mahmood Mamdani has written extensively
on colonialism in Africa and the power structures set in place during that period. He
argues in Citizen and Subject: Contemporary Africa and the Legacy of Late Colonialism
that despite claims of democracy, the governing systems created and employed by
colonial state are examples of decentralized despotism. This term covers both indirect
rule and the locus of power among key figures in the colonial and native authorities who
were granted the ability to dispense justice or determine law at will. The system was
designed to racialize civil power and tribalize customary power to enable universal
control by and favoritism of the colonizing body (Mamdani, 1996). It was regrettably
effective not only in sustaining political influence and economic control long after its
conclusion, but also in crippling the local chiefly governing system.
Decentralized despotism was based on a dual legal system that incorporated both
the political establishment of the colony and the customary authority for dealing with
traditional native matters. The reach of these authorities culminated in the dual court
system, "one modern, the other customary, neither quite separate nor quite equal,"
serving different populations to different standards of legal and social requisites
(Mamdani, 1996: 69). The distinction between these governing bodies exemplifies the
lack of colonial understanding on native cultural matters, for the two-court system
required that natives distinguish between custom and non-custom issues. For natives, this
differentiation is an impossible task.
There could be no exit for an African from the world of the customary. In other
words, although the notion of the customary was not unique to the African
16
encounter with Western colonialism, distinctive about that encounter was the
scope of the customary. Including both personal relations (marriage, succession,
movement) and access to productive resources (land), the realm of the customary
was rounded off into a full circle. (Mamdani, 1996: 50)
The two-court system is still in use today in many post-independent states, evidence that
citizens adapted to this differentiation. Yet to have two courts determining justice based
on two different sets of norms and regulations is complicated and creates a society full of
contradictions and inequalities. From this dual court system sprung further
discrimination and systemic oppression; the values of the 'preferred' system quickly
superseded those of the original.
Oppression woven into the institutionalized fabric of society, such as the dual
court system, is a form of structural violence, a term originally credited to conflict
resolution theorist Johan Galtung (1969). Structural violence is a form of violence based
on the systemic ways in which a society will employ structure or social institutions to
prevent people from meeting basic needs. Dual courts are but one of the myriad
examples of structural violence integrated into regular life during colonization.
One essential difference between structural violence and direct (physical)
violence is that the latter can be seen, but structural violence "is silent, it does not show...
[it] may be seen as about as natural as the air around us" (Galtung, 1969: 173). For this
reason structural violence is hard to recognize and even harder to counter. Galtung
argues that we perceive structural violence as something with stability; even though it
streamlines inequality, fomenting the unequal distribution of power, it is established as
part of a 'normal' social system (Galtung, 1969). The inequality maintained and
rationalized at every level of decentralized despotism, especially in the courts, unerringly
personifies Galtung's structural violence theory.
17
In addition to structural violence, the state’s control over the customary courts
exemplified decentralized despotism. The state aimed to design a customary justice that
conformed to original indigenous law- as much as was compatible with principles of
Western justice. Such legal pluralism was "a way to block or control by dividing and
conquering" (Nader & Todd, 1978: 32). Tribal law was considered the enemy of the
state, as it was the anchor of native resistance (Mamdani, 1996). A tight rein over the
standards of customary law gave colonists further jurisdiction, however disingenuous the
state's interest in customary dealings.
It is not that Victorian notions of right and wrong played no part in setting
practical limits to customary law. They did, in matters such as slavery,
mutilation, polygamy, and bride-price; but they were subordinate to political
considerations, and for that reason, they were always negotiable. (Mamdani,
1996: 117)
The Native Authority was created both to quell resistance and to prevent actual
assimilation. In order to accomplish this, Mamdani writes, culturally legitimate political
allies were appointed by the colonial administration to oversee custom governance,
creating "institutional forms of control anchored in a historical and cultural legitimacy"
(Mamdani, 1996: 76-77). Chiefs and other custom authorities were appointed from the
top down rather than the traditional bottom-up approach, and equipped with the power to
bend or create customary law on a whim.
The institutionalization of all things relating to the customary was another feat of
structural violence, of the state asserting authority and influence over the natives. Having
established a customary system that resembled Western institutions, from courts to
appointed officials, colonists held a significant home-field advantage. Kevin Avruch
questions, "who will eventually have to adapt to whose model if they are ever to get a
18
'fair hearing'[?]....there is always political advantage to be gained by insisting on our own
model" (Avruch, 1998: 79).
Colonists may not have had direct control over the world of
the customary, but to the extent that custom was fitted into Western molds, the state's
influence was apparent.
Unlike civil law, customary law was an administratively driven affair, for those
who enforced custom were in a position to define it in the first place... the terms
of the contest, its institutional framework, were heavily skewed in favor of stateappointed customary authorities. (Mamdani, 1996: 22)
The administrative embodiment of indigenous tradition, customary courts endorsed a law
rarely written down and on which there existed no single expert.
The presumption that there was a single and undisputed notion of the customary,
unchanging and implicit, one that people knew as they did their mother tongue,
meant that those without access to the Native Authority had neither the same
opportunity nor political resources to press home their point of view. (Mamdani,
1996: 118)
The customary courts contributed to the dissolution of real customary tradition. Beyond
the lack of consensus on norms and their implementation, the institutionalization of
customary practices invalidated their very customary aspect. Lacking in consistency, the
formality of the customary court was lost. Customary courts today are not known for the
level of confidence or satisfaction they instill in the local population, but rather for bias,
tribalism and corruption.
The courts and systems of power stacked against the natives reflect only a portion
of the general attitude of the colonial powers. The ensuing environment created by this
pattern of segregated and judgmental interaction, both institutional and social, damaged
the native population to a significant extent.
This divided world is inhabited by subjects on one side and citizens on the other;
their life is regulated by customary law on one side and modern law on the other;
their beliefs are dismissed as pagan on this side but bear the status of religion on
19
the other; the stylized movements in their day-to-day lives are considered ritual on
this side and culture on the other; their creative activity is considered crafts on this
side and glorified as the arts on the other; their verbal communication is
demeaned as vernacular chatter on this side but elevated as linguistic discourse on
the other; in sum, the world of the 'savages' barricaded, in deed as in word, from
the world of the 'civilized.' (Mamdani, 1996: 61)
Mamdani's concept of decentralized despotism illuminates the colonial intention to not
only transplant the pillars of Western civilization, but also to destroy traditional and
indigenous systems and social structures. This was done both as a systematic act of
cultural genocide and as a natural consequence of the colonists' self-approval. There is
significant difference between acculturation and an attempt to impose one culture for the
purpose of destroying another. (Burgos-Debray, 1984)
Through institutions of justice and governance alone, colonialism established
numerous mechanisms of structural violence by way of decentralized despotism. The
sum total of all forms of structural violence resulted in an environment that Johan
Galtung would cite as negative peace (1969). Negative peace is that in which physical
violence is nonexistent, but structural violence may abound. Galtung defined these two
sides of peace to distance the concept from its previously inverted definition relying on
the absence of violence or war.
The absence of personal violence does not lead to a positively defined condition,
whereas the absence of structural violence is what we have referred to as social
justice, which is a positively defined condition (egalitarian distribution of power
and resources). (Galtung, 1969: 183)
By other definitions of peace and violence, colonialism would be considered a time of
peace but for Galtung's perception that the presence of structural violence negates peace
in any form.
20
The extent of colonialism's destructive influence on social mechanisms is visible
in the challenges facing post-independent states even today. The nature of decentralized
despotism, as introduced by Mahmood Mamdani, exemplifies the state's pervasive and
lethal manipulation. Colonial power intentionally undermined tribal systems and chiefly
authority; customary courts were established to further segregate locals from colonists
and allow for indirect rule.
After the colonial system is put in place, the native's culture is marginalized, they
have very little political power and, in the end, the criminal justice system (and
military) becomes the societal institution that keeps them in their place.
(Gabbidon, 2010: 226)
The lasting effects of this period in which structural and cultural violence devastated the
indigenous society can still be observed and measured today. Examples are seen not only
in the Western-inspired design of the government, economy and education sectors, but
also in the lingering racism and cultural self-denial of many post-independent states.
Internal colonialism and lasting trauma
Decentralized despotism explains how the state used customary authority to
disempower natives and fragment indigenous society along tribal lines. In doing so it
illuminates most examples of structural violence crafted during colonialism. Simply
weakening the customary governing structure, albeit while creating a segregated system
to determine first- and second-class citizens, would not be enough to influence
indigenous self-perception to the irreparable extent it is currently. How did colonialism
affect the collective identity so powerfully, and what is the evidence to show that it did
so?
Historian and criminologist Becky Tatum proposes differentiating between
external and internal colonialism. While external colonialism is embodied in tangible
21
structures, institutions and rules established by the colony, internal colonialism is the way
in which colonialism transforms the perceptions and identity of a society. People who
have suffered from internal colonialism incorporate the lingering state of their
subordinate, colonized status through political, economic and social ramifications
(Tatum, 2002). By separating the internal effects from the external, global structures of
oppression can be traced to a colonial origin. In many societies, colonialism precedes
social disorganization, cultures of violence, conflict of cultures and perceived
powerlessness (Gabbidon, 2010). Internal colonialism explains the effect of
subordination on the collective psyche of the native population.
In this context, the oppression of the colonized was much more advanced than
what was visible at the physical level. Relevant here is Johan Galtung's definition of
violence, one that casts a wider net than physical injury. He suggests instead "violence is
present when human beings are being influenced so that their actual somatic and mental
realizations are below their potential realizations" (Galtung, 1969: 168). Violence by this
definition was a widespread element of colonialism, apparent in the psychological and
internal effects of systemic oppression and discrimination.
A UN handbook on indigenous rights details the psychological trauma of being
colonized. The process is branded 'ethnocide' due to the injury stemming from the
suppression of a culture in the name of development, progress or manifest destiny.
Once proud and independent people are reduced to the poorest of the poor...To be
'integrated' in this negative way into the dominant society is nothing short of
ethnocide; which means that a people are denied their right to enjoy, develop and
disseminate their own culture and language. This has been the fate of many
millions of indigenous peoples since colonisation began and today remains a
threat to millions more. (Indigenous Peoples, 1987: 21)
22
As time since the period of colonialism passes, internal colonialism may prove to have
left an unseen but significant mark as compared with the visible effects of external
colonialism. The effects of internal colonialism are subtle, but traced to a colonial origin
so catastrophic it cannot be said to have had no lasting impact.
Categorization is a natural human cognitive coping mechanism, but in the case of
colonialism, the creation of "us v. them" framing clarified the colonists' mental
recognition of natives as the "other". This pattern of thinking led to extremes such as
pseudospeciation, the act of in-group members recognizing themselves as the only
members of the human species, and other people as less than human (Moore, 1993). It is
not an exaggeration to claim that colonialism bred European pseudospeciation, in a
classic example of internal colonialism.
Pseudospeciation was easily perpetuated during colonialism because of
segregation. Lack of interaction contributed to intergroup biases, and selective exposure
allowed colonists and locals to seek experiences that confirmed their beliefs about one
another. Though these processes were occurring on both sides of the colonial divide, the
negative consequences of these patterns of thinking are disproportionately loaded onto
the powerless and oppressed. Other typical cognitive defenses such as attributional error,
in which positive experiences of the other are rendered situational and negative
experiences of the other are rendered natural, reinforced the hatred and ignorance feeding
pseudospeciation (Moore, 1993).
According to Tatum, the lasting influence of internal colonialism manifested itself
in many vicious characteristics in the collective native population. The first, horizontal
fragmentation, echoes the decentralization critique of Mamdani's analysis of power
23
structures and legal institutions. Borders of tribal land and chiefdoms were manufactured
with little regard to traditional groups, and native authorities as well as chiefs were
appointed with seemingly no consideration of the process as it had previously existed.
The dissolution of regular power frameworks and the arbitrary reorganization of society
along tribal and ethnic lines were both institutionally decentralizing and socially
fragmenting.
The second characteristic of internal colonialism is a collective self-hatred, a
natural result of the identity crisis that natives experienced during colonialism. The state
implemented structurally violent policies and social norms that left natives estranged
from their culture and summarily forced them to shed their native identity (Gabbidon,
2010). The imposition of a new language, history, and cultural traditions that did not aim
to coexist with prior cultural norms succeeded in denying and minimizing the existence
of the traditional. Colonists declared themselves citizens of the new state, and despite
their collective physical minority, branded natives as lower-class. Natives did not
question who had the right to self-identify as a citizen, or what the status of citizen meant
in this new society.
Such queries, and the answers to them, hold an obvious and deeply important
bearing, not only upon the personal sense of identity of millions of individuals
scattered throughout the continent, but in terms of the degree to which some form
of genuine self-determination can be exercised by indigenous nations in coming
years. (Churchill, 2000: 201)
The question of identity was central to many native populations, and the pace at which
society and identity were changing was a significant factor in the derailing of indigenous
communities. Colonialism caused the cultural context to be quickly modified, producing
unforeseen difficulties in native identities. Professor Lisa Schirch postulates that identity
24
is "simply a metaphor for the relationship of an individual to his or her cultural context"
(Schirch, 2001: 148). If the cultural context is undergoing a massive upheaval by an
outside force, subsequent reconfiguration of identity will be substantial.
The identity transformation caused in the wake of the new colonial social strata
inevitably involved a measure of self-hatred. Colonialism taught natives through policy
and behavior that as people they were inferior, that their cultures were primitive, and that
their social infrastructure was substandard. Native groups internalized their victimization
through a denial of their identity and heritage and an absence of security and participation
(Fisher, 1993). Self-hatred bred mistrust and a sense of powerlessness among indigenous
populations still visible today. Again the application of Galtung's negative peace offers
tangible evidence; colonialism's invisible but potent structural violence and social
injustice reveal themselves decades later in malformed collective identity.
Conflict resolution theorist Edward Azar proposed that the deprivation of basic
human needs was among the main factors influencing certain conflicts (Azar, 1986).
"The source of protracted social conflict is the denial of those elements required in the
development of all peoples and all societies, and whose pursuit is a compelling need in
all" (Azar, 1986: 29). Though most physiological needs of natives were still met during
colonialism, human needs such as safety and identity were in constant peril. Human
needs theory, as developed by political psychology, "explains the biological and
psychosocial imperatives of human existence and how frustration of natural instincts and
needs leads to conflict and reactive violence" (Montville, 2001: 130). The deprivation of
psychosocial human needs during colonialism had a significant impact on native
25
populations. Deprivation infiltrated all levels of social infrastructure and created lasting
internal psychological conflict within individuals.
Western visitors to countries wherein the wound of colonialism has faded to a
scar may observe a lingering level of racial discomfort and alienation. This was evident
in Vanuatu when older members of the dark-skinned rural Melanesian community would
remark to me that their own skin color was "bad," or "no good." This was followed with
a smile and a smack on the arm and the assurance, "But you, you have good skin. White
skin is good." Also in use was the term "Master" to refer to all white males and the
equivalent, "Missus" for all white females. These titles originated during colonialism, yet
are still regularly used in public arenas in Vanuatu.
From the casual weekend bleaching of Cameroonian faces to lighten the
complexion, to the fascination of Ni-Vanuatu children with Caucasian faces, eyes and
hair in a manner beyond mere curiosity, the legacy of racism remains strong. Adolescent
Ni-Vanuatu students asked to draw pictures of themselves or family members would
produce drawings of white children, white parents and white siblings (and in one case, a
replica of the Virgin Mary). Self-denial at such a collective level is not inherent, but
learned.
Both Cameroon and Vanuatu were dual-colonized by Britain and France. The
multiple-personality aspect of the colonizing power has had an additional detrimental
impact. The British and French were hardly compatible bedmates; as a dual governing
body the destruction of the local culture was exacerbated exponentially. On top of
tribalism, a race for favoritism developed between the British and French factions,
between the Anglophone and Francophone influence on schools and hospitals, and even
26
between the Church of God and l'Eglise Catholique. In Vanuatu, the French and British
could agree on nothing as a single government entity; as an unfortunate consequence
there were two separately functioning school systems, two hospitals, and two court
systems. At one point in Port Vila, the capital of Vanuatu, it was legal to drive on both
sides of the street. (Mike Daisey, "The Last Cargo Cult" performance, 17 January 2010)
Missionaries and traders of sandalwood and beche-la-mer, the sea cucumber
popular in Chinese medicine, were the first foreigners to arrive in Vanuatu, to mixed
reception. Britain and France competed for claims to the country and finally agreed to
form a condominium government in 1906. After World War II, in which Vanuatu (or the
New Hebrides, as it was known to foreigners at that time) served as a major hub for the
American Navy, the local population began lobbying for independence. Modern Vanuatu
gained independence in 1980.
Cameroon was originally colonized by Germany in 1884, and then taken by
British and French soldiers during World War I. Following the League of Nations
mandate in 1922 the country was divided into half for British and French co-rule. The
French Cameroun won independence from France in 1960, forcing the British Cameroons
to decide whether to join with French Cameroun or Nigeria. The northern portion of the
British Cameroon annexed Nigeria, but the southern portion joined with the newly
independent French Cameroun to form the Republic of Cameroon.
27
Chapter Two
Cultural Collision
In the second chapter a thorough cross-cultural analysis of Western and indigenous
cultures is guided by the work of anthropologists Geert Hofstede and Edward Hall.
Hofstede is responsible for initially identifying the main cultural indicators used in this
chapter's comparison. The descriptions and examples of these indicators found in his
work were essential to the analytical process, revealing underlying differences in cultural
perception and explaining contrasts in collective behavior. Edward Hall's concept of
high- and low-context cultures provided a fundamental perspective for examining further
significant and subtle cultural communication differences.
There are almost no cultures existing in the world today that have not been exposed
to others or been impacted by such interaction. Exposure to outside influence is a
constant feature of most societies (Mac Ginty, 2008). Exploration, trade, missions and
slavery preceded colonialism in most cases. Colonialism was not the first instance in
which two vastly different cultures originating on different continents interacted. Yet
colonialism took this interaction to a newly integrative level. The nature of co-existence,
albeit unilaterally imposed, required a new set of communicative and structural
transactions (Kriesberg, 2001). The extent to which life was different cannot be
calculated by examining institutions or infrastructural development alone.
When we speak about the cultural dimension we are referring to the domain of
ideology, values, and attitudes, all within the realm of perception and cognition.
(Nader & Todd, 1978: 27)
Cultural values also clashed on a deep, subconscious level; standards of conduct set by
law or fashion, immediately visible on a superficial level, changed rapidly. The values
28
underlying these standards of conduct have been distorted since colonialism, reeling from
the force of the cultural collision.
Anthropologist Geert Hofstede defines culture as collective programming of the
mind, shared with people who live in the same social environment (Hofstede, 1997). US
anthropologist and popular author Edward Hall notes that culture is not innate, but
learned, shared to the point where it defines group boundaries, and also that its facets are
interrelated (Hall, 1976). In Hofstede's book, Cultures and Organizations: Software of
the Mind the author determines a set of cultural indicators derived from empirical
research. Some of these indicators will be quite useful in exploring the root differences
between indigenous Ni-Vanuatu and Cameroonian culture and French and British culture.
Differentiation between collectivism and individualism and between levels of uncertainty
avoidance, along with Edward Hall's theory of high-context and low-context cultures will
assist with cultural analysis (Hall, 1976). These indicators will be applied to the relevant
cultures as a whole, and also towards the specific framework of conflict and conflict
resolution practices.
Cameroon and Vanuatu are both nations built on villages and chiefdoms. People
sustain their livelihoods mostly through agricultural production or specialized skills such
as weaving or carving. Both cultures include a spiritual component of animist beliefs.
Even after the predatory missionaries converted much of the populations to Christianity,
(and in Cameroon to Christianity and Islam), there still exists a measure of animism. To
this day beliefs in black magic, custom spirits and fatalism continue to dictate behavior
and influence perception of many, including those who attend religious services
regularly.
29
Collectivism and individualism
The most salient feature of the traditional societies of both countries, as observed in
the present day, is collectivism. Collectivism, which pertains to societies in which people
are integrated into strong, cohesive ingroups, is a significant contrast to individualism,
which pertains to societies in which ties between individuals are relaxed (Hofstede,
1997). Collectivism at the village level in Vanuatu is evident in every exchange between
people. The sharing of food, the distribution of community labor, and the collaborative
decision-making process all point to a collective nature of interaction. Mothers regularly
feed and look after children other than their own, and in exchange it was normal for a
mother not to know the whereabouts of her child; someone would be feeding him or her
somewhere. Local food is such a communal entity that any member of a community can
enter another's kitchen and help himself or herself to whatever is available, and most
importantly, no person ever eats a meal alone.
Informal community justice forums are based on standards of behavior defined by
custom practices, and enforced by the shared responsibility of all community members,
with the aid of a powerful cultural deterrent, shame. The notion of shame is so lucid in
Ni-Vanuatu society that it motivated the actions of everyone from a schoolchild too
fearful to publicly receive a low grade to an adult keeper who had to feign injury to
reduce the shame of letting in a game-winning goal. Here, shame has the power to
control people's public and private behavior. Collectivism touts the adaptation of skills
and virtues, employing tradition in order to teach young people how to become members
of society (Hofstede, 1997).
Collectivism meant that the entire community was wrapped up in any conflict, no
matter how few were directly involved. Because social conflict affected the relationships
30
between one or more people, and subsequently their families, affiliates and neighbors, the
whole community would be involved in the conflict itself and therefore had a stake in its
immediate and lasting resolution. Community leaders such as chiefs, elders or regional
officials might play a more authoritative role in convening the group to resolve the
conflict, and perhaps determining a fine. Leaders do not detract from the collectivistic
nature because they are elected by the community to represent them and should have their
full confidence. As "trustees of the moral order," community leaders would also respond
to community pressure regarding the size and scope of punishment (Arthur and Marenin,
1996: 165). Social mechanisms are in place to exercise shame through public
opprobrium, which is used to further encourage compliance or to discourage unfair
punishments.
Indigenous peoples avoid forming overly centralised political institutions and tend
to organise at the community level. Decisions are taken only after a consensus is
reached by the community. In this respect indigenous communities contrast with
most modern states. If the voices of the indigenous elders are listened to, it is not
because they can call upon forces of coercion, but because they represent a shared
knowledge passed on from generation to generation of community life.
(Indigenous Peoples, 1987: 9-10)
The collectivistic nature of conflict resolution centers on the restoration of social
relationships, an end in which all in the community holds a stake. The need for social
harmony is a central tenet of informal conflict resolution. Justice acts as a means of
restoring broken relationships and repairing the social fabric of which all society is built.
A report published by Penal Reform International on contemporary justice forums
in Africa lists the following prominent features of the traditional justice systems, many of
which spring from collectivism:
- the problem is viewed as that of the whole community or group;
- an emphasis on reconciliation and restoring social harmony;
31
- traditional arbitrators are appointed from within the community on
the basis of status or lineage;
- a high degree of public participation;
- customary law is merely one factor considered in reaching a
compromise;
- the rules of evidence and procedure are flexible;
- there is no professional legal representation;
- the process is voluntary and the decision is based on agreement;
- an emphasis on restorative penalties;
- enforcement of decisions secured through social pressure;
- the decision is confirmed through rituals aiming at reintegration;
- like cases need not be treated alike.
(Penal Reform International, 2000:22)
Britain and France are, and were at the time of colonialism, much more individualistic
societies. Individualism is evident not only in the great emphasis on individual progress,
private property and personal wealth, but also in the ways in which people from these
cultures feel about challenge, freedom, personal time and privacy. It is an additional
quality of individualistic cultures that they consider this quality superior to collectivism
(Hofstede, 1997). This is consistent with the stereotypical colonial sense of cultural and
moral superiority in general.
Individualism in conflict resolution is central to the concept of justice in British and
French society. Justice focuses upon the perpetrator, frequently disregarding the context
of that person's actions. Formal courts function and decide cases on the individual efforts
of a few key participants such as the barristers and the judge. It is barristers' ability to
articulate and argue their case that to a large extent determines the outcome. Judges
holding respected legal and social positions are selected by someone higher up in the
system on the basis of their personal accomplishments. This is a direct reverse of the
selection of community leaders in collectivistic societies, who are chosen by their
constituents on the basis of their family and social standing. Collectivistic leaders are not
32
omnipotent; in traditional African society, group deliberation held a chief's power in
check, requiring him or her to act on the initiative of his constituents (Mamdani, 1996).
In traditional conflict resolution forums, the whole community contributed to the process;
in the Western justice system, only key players who were confirmed and certified by the
state could participate.
In lieu of socially-activated shame, individualistic societies use guilt as the
corresponding deterrent. Both emotions are invoked to keep people from misbehaving,
however, guilt operates from an internal, individual source whereas shame relies on the
participation of the surrounding society (Hofstede, 1997). Guilt is especially relevant to
Western conflict resolution in that the outcome is often simplified down to "guilty" or
"not guilty." Western justice systems are built upon the idea that individual guilt implies
responsibility and accountability. It does not depend on a community of people to
participate in either the contemplation of the conflict or the execution of the sentence.
The individual alone shoulders judicial punishments.
The Western system also does not require the remorse or acknowledgment of the
perpetrator. One of the reasons that Western formal justice does not translate well into
collective societies is that manipulation of guilt cannot easily be substituted for
manipulation of shame; collective societies reliant on playing a role in the creation of
shame are left without a role. Western judicial courts deny collectivistic communities the
right to participate in influencing defendants' shame or remorse.
The influence of individualism on conflict resolution processes is echoed in
Mohammed Abu-Nimer's work comparing Western and Eastern systems. Abu-Nimer
notes in a case study of conflict resolution in Cleveland, Ohio that people unrelated to the
33
conflict have minimal involvement in the resolution process, from which the general
public is alienated, and the overall process focuses on honoring individual rights, desires
and needs (Abu-Nimer, 1996). Conflict is met with face-to-face responses highlighting
the Western focus on blame and responsibility. These characteristics emanate the
individualistic values and priorities of the host culture.
The contrasting case study in Abu-Nimer's work examines an Eastern conflict
resolution process in a religiously and ethnically heterogeneous community. The key
characteristics of the successful third party in this scenario include familiarity with the
area, the people and the local history; also political and social standing rather than "direct
power to levy economic or political sanctions" (Abu-Nimer, 1996: 43). Authority was
thereby given to these individuals by virtue of the values of a collectivistic society that
prized local knowledge and community status.
Uncertainty avoidance
The concept of uncertainty avoidance addresses the ways in which people in a
certain culture avoid anxiety from doubt or ambiguity. Uncertainty itself is subjective
enough to have a different meaning in different societies. The ability to question an
authority figure might provoke uncertainty for some, whereas those who never question
authorities would have no uncertainty following a leader's pronouncement. The
alleviation or minimization of uncertainty can be a useful way to understand the
collective emotions and needs of a society. Whether or not a culture is highly uncertainty
avoidant can be measured through the expression, aggression, discipline and character of
its people.
Experience suggests that village life in Vanuatu and Cameroon demonstrates low
34
uncertainty avoidance. Key indicators include lenient rules for children on what is dirty
and taboo. Rural children in both of these countries are permitted to play in unattended,
organic environments that would be considered germ-ridden and unsanitary by Western
mothers; by age five these children would be more skilled with a bush knife or machete
than many cosmopolitan adults (Hofstede, 1997). Very young children were also
permitted to play in the bush or swim in the ocean without supervision. Were this to
happen in the Western world, parents would personally feel shock and guilt about being
negligent even before social pressure or law could declare them unfit to raise a child.
Conversely, cultures with low uncertainty avoidance found it entirely socially acceptable
for children to play anywhere unsupervised.
Another indicator of low uncertainty avoidance is the framing of time as an
orientation only, and the concomitant intentional task of needing to learn precision and
punctuality (Hofstede, 1997). Accepting that meetings start up to an hour late is one of
the most difficult adjustments for visitors to Cameroon and Vanuatu; in some cases
senior attendees miss arranged meetings entirely to do something else. Most people in
Vanuatu don't know the year they were born and would have to estimate their exact age,
or the age of any of their children over two years. Precision is far less of a concern in
either of these countries than it is in Western cultures. In Vanuatu and Cameroon the
preparation of food never requires measurements of any kind, and universal tools are
used for thousands of purposes. A bush knife can cut wood, coconuts, meat or grass;
clean fish or fingernails, plow land, dig holes and peel vegetables. A more uncertainty
avoidant Western culture would require individual tools for each precise task.
A final classic indicator of weak uncertainty avoidance is the general low stress
35
lifestyle and feeling of well-being (Hofstede, 1997). This was true for Vanuatu, a
country in which economic development and infrastructure are so slow that most people
are content to continue farming using the same methods and tools as their ancestors had
used. Vanuatu was ranked first in the world in the original World Happiness Index, a
global survey that measured all the usual indicators of a country's well-being
(environmental footprint, life satisfaction, etc) except for GDP. In Cameroon, a higher
level of development contributed to a higher general stress level, but it was still
significantly less than that of any Western country. That both Cameroon and Vanuatu are
home to low uncertainty avoidant cultures was also clearly reflected in their traditional
conflict resolution methods.
Though ritual and ceremony were important aspects of the reparation of
relationships in conflict resolution, responsibilities and penalties in both countries are
determined by a system of community rules. These rules later became the basis for
customary law during colonialism. Mamdani notes that concepts of customary law were
not written or recorded in any way; they were not so clear-cut that they could be recited
(1996). This is not to suggest that these rules on acceptable community behavior were
unknown to the community; on the contrary, everyone had a hand in creating them, and
the norms were well known to all in the community. In the sense that this system of rules
was unspoken, but universally understood, and certainly imprecise, it is again indicative
of low uncertainty avoidance.
Britain and France brought in Western judicial systems that display strong
uncertainty avoidance. In both countries train schedules run on schedule and laws and
social expectations protect children from unsanitary or unsafe situations, typical high
36
uncertainty avoidance qualities. Although the general cultures of France and Britain rank
different on the scale of uncertainty avoidance, the judicial conflict resolution systems
imposed by France and Britain will be evaluated in terms of their higher uncertainty
avoidance ranking than those of Vanuatu and Cameroon.
The Western judicial system prides itself on impartiality, due process and the rights
of the defendant. The manner in which these priorities are upheld is through strongly
uncertainty avoidant measures. Consequently, the Western system is composed of many
precise rules and regulations, with an emphasis on conservatism and law and order
(Hofstede, 1997). It springs from an orientation towards conflict resolution that relies on
precise objective statements in lieu of normative subjective customs. The dual-court
system, which divided colonial citizens from subjects, demonstrated both a repression of
minorities and a belief of the Western justice system's monopoly on truth. These are both
qualities of a strong uncertainty avoidant culture's politics and ideas (Hofstede, 1997).
Rules dictate the exact punishment for a certain crime or infraction, eliminating the
need to consider contextual factors. The laws upon which matters of crime and
punishment were founded are stable and familiar, removing the circumstantial and
personal factors that might be seen to bias the outcome. That these punishments are
unyielding and regular added to the theory of the Western justice system as a powerful
deterrent against crime. The concept of proactive deterrence represents the strong
uncertainty avoidance of a culture which expects and prepares for crime.
As Cameroon and Vanuatu exhibited low uncertainty avoidance in both regular life
and in traditional conflict resolution, the rigid and unilateral Western justice system
symbolized an alien paradigm. The high uncertainty avoidance characteristics of the
37
Western justice system were foreign enough to be one of the main reasons its
transplantation was awkward. Uncertainty avoidance made for a difficult transition in
that it is a subtle quality of most cultures, yet representative of deep orientations and
behaviors.
The traditional justice systems were reliant on symbiotic relationships and
community involvement, whereas the Western justice system trusted no one and used
claims of equanimity to overlook the systematic, inhuman nature of its processes. The
concurrent clash of these two uncertainty avoidance ratings put additional strain on the
indigenous population. Conflict resolution processes that had formerly been imprecise
but accurate to natives would now be considered inadequate for that very quality of
imprecision. Western justice encouraged proactive deterrence and perpetrator-focused
verdicts-- qualities that heightened uncertainty avoidance to an unprecedented degree.
High-context and low-context cultures
The final mechanism for cultural contrast is Edward Hall's concept of high- and
low-context cultures. In his book Beyond Culture, the anthropologist explains that
context is the "unspoken, unformulated, unexplicit rules governing how information is
handled and how people interact and relate" (Hall, 1976: 112). These are representative
of what information people take in, either consciously or unconsciously, information that
gives meaning and structure to experience (Hall, 1976). Cultures can be either highcontext or low-context depending on how much information is at the surface level of
interaction. High-context cultures are those in which people are deeply involved with
each other, with clear in-group and out-group distinctions, and there is an expectation that
everyone will understand the system on a covert level. Low-context cultures are those in
38
which people are not deeply connected, and most information that is communicated
verbally or non-verbally can be linearly or literally interpreted. Little is hidden or
convoluted in low-context cultures.
Rural village life in Cameroon and Vanuatu is unabashedly high-context. There is
a set procedure for initiating an event or showing up as a guest that mandates a visit and a
gift to the local chief. Aside from the initial indication of power distance, all members of
society are familiar with the system without it ever being taught or published. Invitations
are never issued for any event, because those who are expected to attend or provide food
or other materials already know. Local languages in these cultures have fewer words and
conjugative forms than English or French, because context will determine a word's
meaning. In Bislama, the national language of Vanuatu, the word "kaikai" has six or
more different meanings depending on context: to eat, to bite, to sting, to erode, all verb
forms, and food and meal, nouns. This is consistent with Hall's note that communication
in high-context cultures is "economical, fast, efficient, and satisfying" (Hall, 1976: 101).
Hall's description of high-context communication includes the ability of a highcontext person to understand the seemingly convoluted meaning of an interlocutor who is
trying to transmit a message indirectly. In Vanuatu, a young woman once related a story
in which a bird flew in her window in the middle of the night when she was sleeping, and
when she awoke her clothing had been removed. (Tessie X, personal communication with
the author, 6 November 2005) In a place where social taboo forbids people from talking
about sexual acts, this was a high-context way of saying that she had been raped.
Without the knowledge of contexting, an outsider to this culture would have a difficult
time interpreting the meaning of her message.
39
People in high-context cultures value and process information that people in lowcontext cultures would find irrelevant at best. This is evident throughout the conflict
resolution and justice systems. The high-context nature of village culture demands that
circumstantial information, relationships, and other details are taken into account when
considering a criminal or civil case. Traditional conflict resolution forums in Cameroon
and Vanuatu are replete with examples of the high-context nature of these cultures.
Very high-context systems, by definition, take much more into account, and this
has the effect of putting the accused, the court, the public, and those who are the
injured parties on the same side, where, ideally, they can work together to settle
things...It also provides an opportunity for the accused to be properly and publicly
repentant for disrupting the orderly processes of life, for releasing the evil of
disorder by failing to observe the regulative norms expected of decent human
beings. In a word, the function of the trial is to place the crime in context and
present it in such a way that the criminal must see and understand the
consequences of his act. It is crucial that the culprit exhibit a high degree of
contrition. (Hall, 1976: 111-112)
The manner of putting individuals on the same side of the problem, with the same goal of
resolving it for the greater good, is unique to high-context cultures. This system would
be unlikely to change without significant influence; Hall notes that high-context actions
"are by definition rooted in the past, slow to change, and highly stable" (Hall, 1976: 93).
Low-context justice forums focus more on the competition between prosecution and
defense, and the outcome of a retributive goal for one, not both of the parties involved.
Britain and France are both lower-context cultures than Vanuatu or Cameroon.
Meaning is communicated by explicit messages, leaving nothing to be decoded internally
by the receiver. English and French languages are not tonal, and do not need to be
pronounced in order to be read (Hall, 1976). Low-context culture is characterized by the
need to adapt and change, something at which British and French institutions have
excelled. The colonial judicial system and legal institutions exemplify the low-context
40
nature of Britain and France.
The culture underlies the law, and many things can be read and understood by
studying the way in which the law is handled...The common inadmissability of
contexting testimony, including hearsay, sets [our] courts apart and frequently
makes them harsh, inhuman, and impersonal...According to the opinion rule, only
established facts, stripped of all contexting data, are admissible as evidence...the
epitome of low-context systems. (Hall, 1976: 107)
The courts' strict definition of permissible and relevant information for deciding justice is
only the first indicator of low-contexting. It is a significant one, in that it means the
boundaries of information considered appropriate to the situation, and indeed to the
problem itself and not just its resolution, are entirely different.
Low-context systems do not afford equal treatment but favor those who can enlist
the most articulate and skillful lawyers on their side. In addition, if these systems
are to operate properly, they must have highly skilled, thoughtful jurists- people
who are sufficiently intelligent and skeptical to bring context into the system -to
find out what actually transpired, and not just what attorneys and witnesses said
took place. (Hall, 1976: 108)
Hall's commentary suggests that an amount of contexting is necessary for understanding
the situation, despite any structural barriers set in place by the formal justice system. It
introduces the question of why low-context systems attempt to leave out relevant
circumstantial information. In an effort to create an equitable system that could judge
without bias and reward or punish without hesitation, the judicial system arose from the
low-context culture. Yet this system often fails to treat people equally, in large part
because a certain amount of context is directly relevant to the story. Blind justice
following a prepared, documented course of action in which all infractions have exact
predetermined consequences, neglects some of the real, applicable information about the
conflict. A system such as this is also built upon the assumption that "the language of
emotions and values is perceived as an obstacle to reaching an agreement ...[and] every
41
behavior is calculated according to rational measures" (Abu-Nimer, 1996: 40). While
these assumptions serve Western needs and expectations for conflict resolution systems,
they cannot be considered universally approved.
Additionally, the low-context nature of Western conflict resolution tends to
prioritize verbal counterpoint over symbolic gesture. Such a preference for linguistic
discourse can be uncomfortable for high-context people. "A fixation on the exchange of
the word tends to frustrate and disempower those who engage in reconciliation through
gestures, symbols, emotions, and shared work" (Gopin, 2002: 37).
Other authors offer a thorough description of the differences between high-context
and low-context conflict management:
Whereas low-context persons view indirect conflict management as weak,
cowardly, or evasive, members of high-context cultures view direct conflict
management as impolite and clumsy. Whereas low-context persons separate the
conflict issue from the person, high-context cultures see the issue and the person
as interrelated. Whereas low-context persons seek to manage conflict toward an
objective and fair solution, high-context cultures focus on the affective, relational,
personal, and subjective aspects, which preclude open conflict. Whereas lowcontext cultures have a linear and logical worldview that is problem oriented and
sensitive to individuals, high-context cultures see the conflict, event, and all actors
as a package. Whereas low-context cultures value independence focused on
autonomy, freedom, and personal rights, high-context cultures value inclusion,
approval, and association. (Jandt & Pedersen, 1996a: 11-12)
Hall's work suggests that the low-context British and French arrived with a judicial
system unlike any other in the high-context cultures of Cameroon and Vanuatu. The
clash of these extraordinarily different cultures is represented in the uprooting of the
systems of indigenous conflict resolution in favor of the courts of the state. The
transplant of formal justice forums greatly influenced the perceptions and values of the
native populations. The creation and implementation of new justice systems, both for
state courts and customary courts, affected the locals immediately and irreversibly.
42
Change was first realized on a systemic level, which contributed to the immediacy and
gravity of the impact. "Once change has occurred at a systems level, members can no
longer interact in the old ways" (Criss & Johnson, 1993: 135). Though there are few who
remember the inception of these new court systems, long-lasting change is evident in the
state of these conflict resolution systems today. Both the Western-inspired court and
police systems and the local justice forums have evolved as a result of the spirit of their
interaction.
The concept of justice and its meaning for local peoples took on new importance
as the state-sponsored justice forums picked up speed and drew attention. Change of this
caliber necessarily "involves the transformation of the 'rules' which reflect the values and
structure of the group" (Criss & Johnson, 1993: 135). Native populations reacted to new,
Western versions of fairness and objectivity, and of the purposes of resolution (as well as
the route to attaining it) infiltrated the colonized state. The traditional conflict resolution
systems of the sori ceremony in Vanuatu and the village council in Cameroon started
losing value in the community, at the same time losing the trust of the people. Customary
courts that claimed to uphold and instill the same values of the local culture, when
possible, used the Western process of low-contexting and employing inflexible
regulations to taint the local system with a colonial touch.
Traditional justice forums are constantly evolving as the social, cultural, political
and economic circumstances in which they operate change. This is in marked
contrast to the customary law codified by colonial administrations and traditional
authorities into rigid unchanging written laws. (Penal Reform International, 2000:
4)
Customary law captured in rigid form differentiated the customary courts from the
existing conflict resolution forums at the local level, which applied unwritten living
43
customary law. Customary courts, by virtue of their very title, were not informal justice
systems but instruments for transforming the uncontrollable local conflict resolution
process into a recognizable and compliant format. Customary courts are still in operation
in countries such as Cameroon and Vanuatu, but their scope and power is widely limited
and usually overruled by the law that is applied at the state level. A legal marriage
cannot be annulled or ended in divorce in a customary court, nor can a dispute over land
be settled in a customary court. Illustrative of the inequity between them, the state courts
hold a jurisdiction far wider than and including that of the customary courts.
As a result of the momentum of a new system of justice and new processes to
determine guilt or innocence, penalty or imprisonment, native values evolved. The
retributive nature of the Western justice system permeated the traditional notions of
fairness and resolution, which had until then had emphasized restorative justice. New
perception of fairness emphasized retributive justice, which was handed off to the natives
along with self-doubt and distrust in the validity of their traditional methods. In addition
to the horizontal fragmentation and self-hate, local Cameroonians and Ni-Vanuatu were
left with the image of Western civilization's tools and institutions as innovative and
superior. The West did little to dispel the idea that its own social methods and
structures, law in particular, were the key to a progressive and therefore 'successful'
modern nation.
Low-context, strongly uncertainty avoidant Western judicial systems touted the
property and rights of the individual. These systems - courts, judges, legal hierarchies
and police - used imprisonment or fines as deterrents and expected guilt to hold criminals
to account. Coming into a high-context, low uncertainty-avoidant culture, Western
44
formal justice systems must have seemed impersonal, rigid, narrow-minded and selfimportant. Local cultures had created systems of conflict resolution that did not conceive
of imprisonment, or using penalties as deterrents; their systems relied successfully on the
use of shame and the contributions of the community to rehabilitate an offender. For a
people who had formerly celebrated the power of the collective in resolving conflict and
the importance of restoring relationships to achieve social harmony, the new low-context
system was a shock to behold.
The downfall of traditional conflict resolution systems
We don't want to [use only their systems] because we know that
they are weapons they use to take away what is ours.
-Rigoberta Menchu, Me Llamo Rigoberta Menchú Y Así Me Nació La Conciencia
Traditional conflict resolution systems have roots as old as the tribes of people who
crafted them. The outside influence of trade, missions and inter-group warfare is
palpable, yet for the most part conflict resolution forums remained unchanged throughout
centuries of heterogeneous cultural interaction. As long as the values of society held
firm, definitions of conflict and sanctioned methods of resolution served societies well
without change. Colonialism, with its new governing body and legal structure, imposed
differences that went deeper than structural change. The very foundations of indigenous
society were shaken to the core during colonization. Opposing values were present in all
parts of colonial society, and the native culture reeled from the confrontation.
Nowhere is the impact of the cultural collision between colonist and colonized
more evident than in the deterioration of local conflict resolution systems. In Cameroon,
traditional councils which had formerly fulfilled the responsibility of resolving conflicts
were now untrusted and untrustworthy. Recent assessments done in Kumba, Cameroon
45
indicated that most community members recognized the main function of the village
council was to maintain peace (58%), but also noted that the council did not treat
everyone equally, mostly due to favoritism and tribalism (see Appendices D & E). A
significant portion (39%) of the village councilors themselves cited lack of faith in
council process as the main reason that community members would take a dispute to an
alternate forum (see Appendix F). One councilor stated that he thought people wouldn't
take a dispute to the village council if they thought the council wouldn't handle the matter
well (Bombe Village needs assessment, personal communication, 24 June 2009).
A common regret shared by many councilors was the lack of community respect for
the council. A female councilor voiced support for training so that "the council could get
respect, and talk so that others will hear" (Malende village needs assessment, personal
communication, 26 June 2009). How did the traditional council system stray so far from
the steadfastness it must have had to remain effective for many generations prior to the
onset of colonialism?
Members of the formal justice system in Cameroon also implied that the reason
people came to the court to solve disputes was that they would fail to receive 'justice' at
the hands of the local council. One barrister declared, "Justice is more lasting, more
credible in court" (Ambo-Esah Law Firm interview, personal communication, 18 August
2009). Another barrister concurred, "Generally we all know why courts exist, it is for
justice. Even the common man knows that. That is where they can seek justice" (Awota
Law Firm, personal communication, 11 August 2009). A third barrister, when questioned
about alternative justice forums, shared:
To an extent, some are effective. Some are not effective. The traditional council is
not a court. It does not have coercive power - it cannot command people to attend.
46
People have to attend based on sheer will. The traditional council's decisions are
not binding, and they cannot be enforced. (Ngenko Law Firm interview, personal
communication, 17 August 2009)
The suggestion that voluntary attendance is a weakness exemplifies how colonialism
reframed ideas of power and authenticity. Before colonialism, the only option for conflict
resolution was a traditional council, a rote end that was too established and respected to
be voluntary. The imposition of formal justice systems rebranded councils and sori
ceremonies as 'informal' and far less authentic and recognized than the Western
alternative. In contrast, formal justice systems could issue court orders or summons;
though in practice these are hardly more effective than the council calling a participant to
attend a mediation, by virtue of the officious accessories the Western system is assumed
to wield more power.
Many of the members of the formal justice system referred to the traditional
councils as "quasi-judicial forums." The title intimates the moral and legal inferiority
that those in the formal justice system equate with the traditional one. Even the concept
of 'justice' itself is one over which the Western system, and those certified in its practice,
retain a monopoly. In addition to the usual condemnation, a high court official expressed
anger and frustration at the inadequacy and dishonesty of the traditional courts:
The traditional councils are not a court or anything. They have no jurisdiction
over anything. Their job is just a civic duty, like peace keeping. Like a
neighborhood watch. And they are so corrupt! (Court President interview,
personal communication, 13 August 2009)
In Vanuatu, the traditional system of a sori ceremony in which the community would
witness and support the reconciliation of a fractured relationship is still in use today. Yet
in most cases, the performance of this ritual is merely a social routine and holds none of
the same meaning that it did previously. The lack of meaning is apparent in the reality
47
that sori ceremonies are today incapable of reconciling relationships; people will
participate in them but their attitudes and perspectives remain unaffected by the process.
The restoration of relationships used to be the main purpose of these sori ceremonies, and
the reason for their conception. Now that they fail to produce the intended result, the sori
ceremony is merely a superficial charade of a once-meaningful event.
In Vanuatu, sori ceremonies are a necessary part of customary conflict resolution
due to their longevity and former effectiveness. They were one of a few nationally
universal traditions in a country split myriad ways across geographic, linguistic and tribal
lines. The fact that sori ceremonies are used from the southernmost island of Aneityum
to the Torres islands furthest north speaks to their original value and efficacy.
The Ni-Vanautu regard the sori ceremony as a non-negotiable step in the process of
resolving conflict. For even the few issues that were brought to the police, society would
require a custom sori ceremony to ritualistically acknowledge the resolution of the
conflict. In a part of the world that was once rife with violent tribal clashes, people
revered sori ceremonies and universally regarded them as the tool to keep communities
healthy and just.
At the present day communities in Vanuatu still regularly use sori ceremonies for
resolving conflict at the community level, often without success. The purpose of the
ceremony is to restore the damaged relationship between disputing parties through public
offerings of compensation on both sides. Sori ceremonies give the impression of
protecting social harmony upon which tight-knit, collectivistic societies such as those in
Vanuatu survive. Yet these ceremonies fail to produce the same outcome as originally
intended. No longer satisfied with a restorative mechanism, disputants do not enter the
48
sori ceremony with intention to forgive or to prioritize the relationship. Participants in
sori ceremonies reported that it was merely a formality, as the anger and disrespect
between parties did not at any point dissipate as would be required for the social
relationship to be repaired. (Kathryn Legomsky, personal communication with the
author, 20 November 2004)
The informal conflict resolution systems of sori ceremonies and traditional councils
grew from a local, collective concept of justice derived of what society thought was fair
and equal; these notions had obviously been greatly impacted by both colonialism itself
and the example set by the Western justice systems (Penal Reform International, 2000).
Former standards stemming from indigenous society had relied on collective meaning
and collective priorities to form a conflict resolution process that met the need for
restoring social balance.
Conflict management in these cases can take advantage of referents in values,
authority and community to anchor its efforts; it is essentially calling the offender
to order, preserving the community and hierarchy and restoring the harmony of
society. This context is particularly important. (Zartman, 2000: 8)
The ideas of equality and fairness had changed as a consequence of the imposition and
standardization of Western norms, in which property was paramount, violations required
restitution and criminals were bad members of society who must be excoriated and
excluded, for the good of society. The prior process -- using a traditional arbitrator who
relied on knowledge of a past relationship, context and the collective belief in the
importance of a continued relationship in order to reconcile parties -- lost the confidence
of the locals in the community (Penal Reform International, 2000). The restorative
penalties favored by traditional justice processes seemed inferior and misaligned to the
49
newly discovered standards of the local population.
Perhaps the issue is not that the traditional system became ineffective, but that the
evolved cultural needs are not truly understood. In his book Culture and Conflict
Resolution, Kevin Avruch explores the difference between conflict resolution and other
forms of conflict management. Conflict resolution is so called because of its aim
"somehow to get to the root causes of a conflict and not merely treat its episodic or
symptomatic manifestation" (Avruch, 1998: 26). The traditional system at one time
aimed to directly address the root causes of conflict-- the broken relationship or damaged
community. Outside influence and natural evolution have changed indigenous cultural
values to the point that the process does not hold the broken relationship to be the root
cause of the conflict.
Dissatisfaction with the traditional forms of conflict resolution is a form of
grievance with the structures of governance and community. Conflicts between
disputants lead to conflict with the resolution process. Negotiation expert William
Zartman refers to this situation as "neither authority-neutral nor authority-reinforcing but
authority-destroying," while noting that these types of conflicts are the most difficult to
handle. (Zartman, 2000: 9) The de-legitimization of tribal authorities and customs, a
secondary objective of the colonists, remains a consistent problem.
In the new system due process focused only on the act of someone being wronged,
and the power of the state to 'correct' that wrong, and as a result restorative penalties and
processes were simply not what people wanted. Compensation used to be rehabilitative
as well as punitive; both parties in Vanuatu's sori ceremonies were required to pay fines
of pigs or yams that the community then shared together (Penal Reform International,
50
2000). This process enabled the dishonored to rise to an honorable status for providing
for others. The public nature of the apology and fining also provided a strong social
influence to follow through on one's promise to forgive (Abu-Nimer, 1996). Yet the
rehabilitative focus of these penalties is no longer one that seems to satisfy local
communities. After colonial courts taught a new framework through which to see the
problem - one is right, the other must pay- the old compensatory system became
inapplicable. Framed around the subject of peace-building processes, one author states:
Instead of reciprocation and sustainable resource-sharing, there was the
imposition of Western models of peace and peace-making, including surrender
and re-grant, formal written peace treaties and the violent suppression of
indigenous groups and appropriation of their resources. Traditional social
structures and inter-group relations were often eroded over a long period through
the introduction of firearms, missionaries and monetized trading. Thus weakened,
indigenous groups’ customary norms of peace-making no longer retained their
power. (Mac Ginty, 2008: 153)
Following this loss of power, traditional peace-making or conflict resolution systems
exist only as a souvenir of what they once were. Not only have the concepts of justice,
fairness, and resolution changed, the local definition of a conflict has changed. The
pattern of social reactions to conflict situations is not uniform, and neither are the
connotations that people and societies attach to denotative meanings of conflict
(Kruglanski, Bar-Tal, & Klar, 1993).
Defining conflict, defining identity
Cultural identity was but one of the many basic needs deprived in the structural
violence of colonialism. The loss of a former collective identity was only one of many
changes in formerly collective meaning and social understanding. One such collective
meaning was the group definition of conflict; what constitutes abnormal or errant
behavior is culturally defined and reflects cultural consensus. Native understanding of
51
what defined conflict, and what defined proper resolution of conflict, was a key indicator
of the change in cultural standards.
An example of the shifting paradigm of conflict is the increase in land disputes, a
serious problem both in Cameroon and in Vanuatu. Before colonialism, there were few
troubles over boundaries or borders of personal land. Colonialism brought with it the
Western perception of ownership as an individual, unalienable right; the collectivistic
nature of remaining local social institutions hints at a former collectivistic understanding
of land prior to the arrival of the colonists. Western ideas of ownership have influenced
local landowners' need to aggressively defend or pursue their disputed property in courts
of law. Land dispute cases are handled by a Western, position-based system, which
results in a fixed outcome. Whether the land is divided or awarded only to one party,
neither is satisfied with the distributive process, which divides the outcome and leaves the
parties' identities without reconciliation.
How a society defines problems reflects their self-understanding; responding to a
stimulus with action or inaction indicates whether the source of the problem is considered
internal or external (Criss & Johnson, 1993). Definitions of conflict or crime are
subjective. There are only acts that are given certain meaning within social frameworks,
and the meaning attributed to these acts is suggestive of certain features of a society
(Gabiddon, 2010). Dispute resolution in any culture reflects values, psychological
imperatives, history, and economic, political, and social organization (Jandt & Pedersen,
1996b). Social and personal identity is wound up in perceptions of conflict, and thus
identity is a vital part of the resolution of conflicts.
52
Human needs, including identity, are a basic necessity for survival and positive
peace (Galtung, 1969). Edward Azar's theory of how the deprivation of human needs is a
direct factor in protracted social conflict includes social identity (Azar, 1986). "It is the
denial of human needs, of which ethnic identity is merely one, that finally emerges as the
source of conflict" (Azar, 1986: 29-30). Colonialism's indifference to ethnic identity,
evident through the many and diverse ways in which this identity was minimized, is no
small part of the environment of negative peace.
Identity is central to conflict, and reconciliation must address identity,
transforming if necessary the aspects of identity that are linked to the conflict (Schirch,
2001). In high-context, collectivistic cultures such as rural Cameroon and Vanuatu, with
relationships and social bonds, in effect, the connections between people, are what define
identity. Especially in indigenous societies, conflict resolution is linked to identity
formation and maintenance (Mac Ginty, 2008). The transformation of identity out of
conflict would require renewing or reinforcing social connections between disputants.
Sori ceremonies and traditional councils prioritized this, which before colonialism kept
these conflict resolution systems functioning effectively.
While conflict resolution involves an active focusing on the conflict interpretation
in ways that may lead to a reassessment of its validity, conflict dissolution may
occur when the conflict schema is put out of the focus of attention and moved into
relative obscurity...It follows that a conflict interpretation left inactive for long
periods of time might become relatively inaccessible and thus cease to exert any
appreciable influence on judgments and behavior. (Kruglanski, Bar-Tal, & Klar,
1993: 53)
Inactivity of the prior interpretation of conflict and resolution made the traditional
conflict resolution system on which it was based ineffective. High-context cultures had
formerly seen conflict as part of the ongoing holistic relationship of all society. In the
53
new framework after colonialism, conflict became instead something that was inherently
negative and needed to be removed from society while being handled only by those
deemed worthy of the task. Conflict resolution became results-orientated rather than
process-focused, and the concept of social harmony was no longer a concern now that
reconciliation ceased to be a central goal.
The new Western judicial system further added to the problem of human needs
deprivation. Lacking ownership over an effective conflict resolution process left the
indigenous struggling to meet their basic needs. Not only did the Western legal system
fail to meet these needs, the natives' own original forums had become ineffective. The
tools once employed to meet native needs were now futile due to the change in cultural
perception.
Without their own definition of conflict, the locals had lost their definition of
themselves. Along with this new framework came a host of problems with traditional
and modern justice systems.
54
Chapter Three
Before and after
The first two chapters of this research cover the historical and cultural context of
colonialism's impact on conflict resolution systems. Structural violence enforced through
the dual court system and the reorganization of indigenous governance took a heavy toll
on native psychological understanding and self-identity. The home culture of the state
upheld vastly different cultural values and behaviors than those of the indigenous, and
changed values meant no longer appreciating or trusting traditional conflict resolution
forums. Was this a case of the indigenous system of justice being "sabotaged under
pressures for modernization"? (Nader & Todd, 1978: 2) A closer look at new and old
justice systems, and the cultural responses to each, will explore this supposition.
The evolving nature of cultural systems is not itself a dangerous process.
However, when this evolution is catalyzed by a period of trauma and fragmentation, the
revision of cultural systems becomes problematic.
Conflict management strategies that are insensitive to each culture's unique
context are not likely to succeed. The temptation to generalize conflict
management strategies from Western to non-Western cultures or vice-versa,
regardless of the different cultural context, is a dangerous threat. Each cultural
context has developed its own unique constraints and opportunities for
constructive conflict management. (Jandt & Pedersen, 1996b: 249)
The unique constraints and opportunities in these conflict management systems are most
easily identifiable at different moments in the evolution of values before and continually
after colonialism. However, differentiating between the "before" system and the "after"
system is not as simple as it seems.
Modernity and tradition are not always two clearly distinguishable moments.
What is called tradition, especially in postcolonial societies, is unavoidably
55
located within modernity, and irretrievably constituted by modernist discourses.
Neither pole of the opposition remains hermetically sealed from the other. There
is a vast body of scholarship in our societies which demonstrates that 'custom' and
'religious practice' have been decisively fashioned colonial administrative fiat.
(Menon, 2000: 76)
During colonialism, traditional conflict resolution forums performed a certain role in
society, yet were simultaneously relegated to least official and therefore most dubious
level of available justice systems. Regarded as obstacles to development, these forums
could have simply fell out of practice as countries modernized (Penal Reform
International, 2000). Instead, informal conflict resolution practices persist as a
contending alternative to formal justice forums, rounding out the full range of inadequate
options.
Traditional justice systems are in operation, but the functions for which they were
created are no longer a priority to local society. Evidence from Chapter Two revealed
that both formal justice officials and locals felt that justice and equal treatment were
unattainable in an informal forum; having defined and given weight to these concepts,
Western judicial systems held a monopoly on them. Interviews showed that compared
with the hard power of the Western court system, the traditional councils in Cameroon
seem to lack validity. Validity may stem from association with the state, or by virtue of
the Western origin of the courts; it may be a side effect of the low self-esteem and selfminimization left over from colonialism. It may be that the social values of Cameroonian
society changed to define validity as what the formal courts offered through
institutionalization, legal repetition and an expensive price tag.
“The traditional councils have no jurisdiction," said a High Court official. "Their
only function is to handle very small cases on the village level. If a case brought to them
56
is too complex, they must pass it on to the Court of First Instance" (Court Registrar,
personal communication, 10 August 2009). Rather than being separate systems designed
for and utilized by separate sections of society, traditional councils, customary courts and
formal courts coexist in a dynamic structure. There are set jurisdictions for each forum
which categorize conflicts neatly depending on the caliber of the crime or infraction. Yet
even this seemingly organized format is thwarted when village councils take land
disputes, customary courts handle divorce from legal marriage and something as minor as
a nominal debt is first addressed in a high court.
The design of the Cameroonian multi-forum system capitalized on segregation
and simplification of access to justice for appropriate conflicts. Instead of ease of use,
the incomprehensibility of its organization-- or rather, disorganization-- combined with
the legal illiteracy of many local people resulted in a chaotic mess of forums in which
none are used as intended. The system as it was meant to exist segregates conflicts into
corresponding forums while allowing for the progressive continuation of a case that is not
adequately solved. Many Cameroonian barristers and formal justice officials remarked
that the forums in this judicial hierarchy are available for the express purpose of offering
increasing levels of importance and fairness. The traditional options are therefore not
only the cheapest and most local, but of the least relative quality.
This hierarchical process is not a voluntary one for Cameroonians, who continue
to escalate their disputes to higher and more official levels of the justice system only
when they are dissatisfied with the decision made at a lower level. The process
inadvertently removes authenticity from the traditional councils by automatically
overruling their decisions. Both the inference of easily-overridden judgments and the
57
concurrent accusations of bias and discrimination within traditional councils feed their
loss of trust and respect from the community.
Another suggestion as to why traditional councils are forgone in favor of formal
courts in Cameroon came from a court official and was echoed many times over by
traditional councilors themselves. This was the idea that it was a sign of affluence to skip
over the traditional council and go directly to the courts. If one had the money, the
"finer" justice forum would be the preferred stop. A formal court official explained:
Those that choose not to take their cases to their village council, but instead
decide to go directly to the formal court system, do so, in the majority of cases,
because they are arrogant and conceited. They believe that the village council is
below them. They don’t care about it. (Senior State Counsel interview, personal
communication, 10 August 2009)
Prejudice about the economics of cheaper, faster justice resonates with the concept of
poverty playing a role in the overuse of the justice system; that is, a case being brought to
subsequent forums in increasing order because of economic constraints. A Cameroonian
barrister suggested:
This is a result of poverty. If they had the money they would not go to the
council. Since they are poor, they look for the outlet that is cheaper. Say a
woman has a case she takes to the council, they charge her 5,000fr for a crate of
beer. They don't solve the matter appropriately, so she goes to the customary court
and pays 10,000fr. If it is still not solved she will go to the courts. The whole
process is much more expensive, but it is caused by poverty. (Ngenko Law Firm
interview, personal communication, 17 August 2009)
The assumption that the more official, more expensive courts will settle or solve a dispute
satisfactorily when a traditional council could not implies that people want a certain kind
of distributive ruling that traditional councils could not provide. This implication
denigrates the former framework of conflict resolution as conciliatory, sustainable, and
community-based. The transition from restorative to retributive justice occurred in such
58
a way as to leave people dissatisfied with the former but unaccustomed to the latter.
New standards of justice, fed by the desire for material compensation and
individualistic goals, transformed local cultural attitudes that had formerly operated under
principles of collectivism and social harmony. Anyone seeking retribution (by Western
standards, seeking to win) would be very unlikely to be satisfied with the outcomes of a
conflict resolution process that emphasizes restoration of harmony and preservation of
social relationships. Colonialism was the catalyst that instigated this change, and the
consequence is two sets of conflict resolution systems, neither of which meet deep-rooted
cultural needs or newfound cultural standards.
Restorative justice and retributive justice
Justice in concept as well as application is highly objective. The righting of
wrongs, and the upholding of fair treatment and due reward can mean extraordinarily
different things to different groups of people. Just as conflict is culturally defined, so is
justice. One form of it is known as restorative justice, which "goes beyond simple
punishment to seeking healing of conflicted relationships as the most reliable way of
defending against recurrence of crime" (Montville, 2001: 129). Restorative justice is
central to many indigenous groups' perceptions of conflict resolution.
The highest official in the Cameroonian justice system recounted the history of
the colonial courts and the local need for restorative justice:
When the white colonials arrived on our shores and established the rule of law,
the natives were delighted. The white man earned the reputation of delivering
impartial judgments. Judgments that were free from favoritism of any sort. Thus
the rule of law earned a reputation for being fair and was respected.
The rule of law divides, it does not, as the traditional councils at their best aim to
do, restore harmony. While the traditional councils, for many reasons, can be
ineffective, what we must remember is that Cameroon is essentially a rural
country. Most people still live in small communities. When disputes arise, we
59
must therefore consider what is the best solution, what is the most appropriate
forum. In many cases, the traditional councils, for low level disputes, are the most
appropriate forum for a resolution that is not only fair but that restores harmony
within the village rather than widening a rift. Cases are brought to us by those
people that initially took their case before their village council only to be
disappointed by their judgment. (Senior State Counsel interview, personal
communication, 10 August 2009)
The restorative function of the traditional councils is one that is unachievable in a formal
court. Many people in Cameroon recognize that traditional and informal justice systems
are best suited to "people living in the same community who seek reconciliation based on
restoration and who will have to live and work together in future," but this distinction
applies to fewer and fewer communities as development progresses (Penal Reform
International, 2000: 3). People who did not intentionally sought a restorative outcome
will never be satisfied with traditional councils or sori ceremonies, even when successful.
Rising economic and income levels raise the stakes in many village disputes, and in these
areas the village councils simultaneously fail to serve higher demands of retributive
justice and offer less in the way of restorative justice.
The impact of an individualistic culture upon a collectivistic culture may also be
responsible for the decline of restorative justice as a necessary element in conflict
resolution. Formerly, continuing relations was of utmost importance, to the extent that
"everything is done to see to it that the paths chosen reinforce such goals" (Nader &
Todd, 1978: 17). Social relationships are a significant factor in determining which
disputing process is the appropriate one. A society that no longer values social
connection and status to the same extent as it once did may abandon its desire for a
restorative aspect of resolution. As the continuation of a relationship decreases in
60
importance, the restorative power of certain conflict resolution systems will lose their
appeal.
Regardless of whether or not traditional councils are as guilty of bias and
prejudice as popular opinion claim, the collective assumption holds firm. The voluntary,
collective aspect of the local formerly restorative justice process has also lost credibility
due to the new costs associated with accessing this system. Traditional councils in
Cameroon charge a service fee payable in crates of beer, and often fine parties in further
bottles or cases of beer as the case carries on. Whether the applied costs or the format in
which they are presented adds to their unpopularity, neither factor assists in breaking
down the stereotype that all traditional councils are corrupt and play favorites.
Traditional conflict resolution systems in Vanuatu are currently suffering from the
same lack of effectiveness, most likely due to the evolution of cultural values from
restorative justice to retributive justice. Sori ceremonies still happen with regular
frequency, but the recurrence of conflict and continued strife imply that these ceremonies
failed to restore relationships as planned. The purpose of the restorative system is to heal
conflicted relationships, thereby reliably defending against the recurrence of crime
(Montville, 2001: 129). Customary approaches to conflict do so by concentrating on
truth-telling, reconciliation and the re-establishment of sustainable relationships (Mac
Ginty, 2008). There is a big difference between conflicted relationships over private
property (a post-colonial concept) and conflicted relationships over public, shared
property (a relic of collectivistic times past). These conflicts differ in everything from
source of contention to ideal method of resolution. While one conflict may be
61
successfully addressed with a traditional practice such as a sori ceremony, its
doppelganger will not.
A secondary school in rural Vanuatu lost its ties with the surrounding village due
to a land dispute over the school grounds, made infinitely more valuable by the student
enrollment. Two major families from the village took opposing sides in the dispute, and
the community was split nearly down the middle. When school had to be cancelled on
the first day following the illegal use of the forbidden namele leaf (marking an area as
tabu, and therefore impassible) on the school gate, tribal officials were called in. The sori
ceremony allowed the school grounds to open and classes to begin, but despite the public
apologies and fines, the conflict was far from settled. Not long after, someone poisoned
the school water tank, and following that a teacher was apprehended trying to burn down
the school generator. These incidents of sabotage suggest that the relationship between
the conflicting parties had not been reconciled at all, which was the main purpose of the
sori ceremony.
The consequences of being unable to defuse growing conflicts in small
communities are serious. In Vanuatu, the same collectivistic behaviors can snowball a
family-related dispute into a tribal war.
Power, strength, physical force, and conflict are an important part of the tribal
culture. Personal issues move to become clan issues and national issues. The
original conflict becomes secondary to the violation of Melanesian culture mores.
(Smith, 1996: 118)
With so much at risk, how did the introduction of retributive justice into a society built on
restorative justice go wrong? In addition to the Western-worship of an oppressed and
traumatized population, "colonialism brought a contrasting cultural influence
emphasizing materialism as a measure of success" (Jandt & Pedersen, 1996b: 251). This
62
was in direct opposition to the former use of compensation and exchange in traditional
justice forums as "vehicles for the restoration of balance" (Mac Ginty, 2008: 148).
Compensation of the retributive sort was a far cry from the former traditional
system which "emphasized that win–win outcomes were possible, that ongoing
relationships were more useful than one-off victories, and that third parties could play
useful roles as invited facilitators rather than unilateral interveners" (Mac Ginty, 2008:
141- 142). In traditional society, social relationships were paramount; they were the very
fabric from which society was woven. The concept of justice itself was dependent on the
restoration of social relationships (Estrada-Hollenbeck, 2001). Aside from the rejection
of restorative justice, and the ill-fitting transition to retributive justice, the role of the
state, rather than the community, in the proceedings had significant impact.
Law as constructed by the state was much more "created by and for the groups in
power" than customary law or the former unwritten guidelines regulating indigenous
society had been (Nader, 2002: 11-12). The main mechanism of Mamdani's
decentralized despotism, the state, dictated law as would benefit the interests of those in
power. Thus, conflict resolution systems favored the colonists over the colonized; postindependence, the inherited system evolved to favor the economically powerful over the
disadvantaged. Retributive systems encouraged material and restrictive punishment as
the goal of the 'winner'; restoring the relationship of the disputants faded from view as an
objective of the conflict resolution process.
Reconciling self with whom?
Following colonialism, disputant-to-disputant restoration was seemingly no
longer a concern. Social relationships had decreased in importance in indigenous
63
societies as strident collectivism gave way to more individualistic tendencies. The
perception of committing a wrong before one's neighbors and family members
transformed into committing a wrong before the state. The nature of responsibility was
the same; only the locus of control and determinant of behavioral standards had changed.
The traditional conflict resolution system thrived on consensus decision-making
built on common interests to solve local disputes (Tangiora, 1996). The collectivistic
mental framework created the expectation that when an individual repented for
wrongdoing, the reconciliation occurred not only between the parties directly involved,
but between the wrongdoer and the larger community. In Vanuatu, village meetings were
constantly held to discuss troublesome issues or events, and the whole village would
indeed participate. In formal courts, on the other hand, only the individuals directly
involved were present, and the state-appointed arbitrator was unknown to the disputants,
without knowledge of the people in question or their community, and often unaware of
the context of the dispute.
The shift in reckoning between oneself and the community to oneself and the state
was a major change indeed. The state exists as a separate entity, and certainly one
without deep meaning and value to the oppressed local population. The new Western
court system reframed the conflict as one between an individual and the state. Having
broken state law, a wrongdoer was accountable to the demands of the state and the
corresponding punishment. This concept is directly in line with the Western values of
autonomous individualism, competition and success, which tend to result in blaming an
individual for his or her own problems (Criss & Johnson, 1993). The dominance of the
64
state over all subordinate relationships seemed to "treat the rule of law as a mechanism
for order rather than as an instrument to provide justice for all" (Mani, 2000: 91).
Hizkias Assefa framed this transition through the metaphor of the Christian
church, which preached a new path to peace: that of reconciling oneself with God. The
transition from collective to Christian mores is analogous to the new self/state
relationship taking precedence over the former self/community relationship (Assefa,
1993). No less, the Abrahamic God is a retributive, vengeful God, whose church thrives
on individual guilt and fear of sin: themes that ring with Western cultural mores.
Countless examples in the Torah, the Qur'an and the Bible point to an allpowerful God with an infamous temper. Followers of these religions in their many forms
cultivate a personal and individual relationship with their deity. A mindset such as this
perfectly prepares a person to defer matters of guilt and redemption to this higher power
rather than one's friends and neighbors. The Abrahamic God further exemplifies Western
values of retribution and perpetrator-focused justice through acts of jealousy, anger and
revenge. New foundations of conflict resolution were likely augmented by the teachings
of Muslim and Christian missionaries.
The work of these missionaries was relevant during the time of colonialism as
many locals had been or were in the process of religious conversion. Assefa writes that
the Church is "shirking its responsibility if it does not recognize the social aspect of
spiritual reconciliation", criticizing the Church for failing to serve peacebuilding needs
between neighbors in favor of the reparation between person and God (Assefa, 1993: 20).
Reconciliation with God should not preclude or take the place of reconciliation with the
human community.
65
In Vanuatu, most rural communities are home to one or more Christian churches
which most of the locals attend weekly if not more often. Churches fit well into the
collectivistic nature of the local culture because they thrive on and reinforce community
gatherings, joint efforts and the creation of committees for delegated tasks. Christianity
preaches a more individualistic theology than the local animist custom beliefs, which has
affected the way people internalize conflict, tension and strife. Prayer and contrition,
confession and worship, dictated by and directed to the Church, serve as means for locals
to rid themselves of the burden of internal guilt and fear. Shame, once a major tool for
social control in this culture, is still felt by transgressors, but to a much lesser extent.
The wrongdoing is no longer between fellow humans in a collective society, but
between oneself and the laws of the state, or oneself and the moral standards of the
Church. These latter relationships require neither collective input nor collective
forgiveness to absolve an individual of breaching a social norm. In effect, these
relationships do not require reconciliation by traditional consensus, but by way of the
formal processes of court and church. Modernization and economic growth have also
helped replace former traditions and spiritual values, which were early providers of
community and meaning (Assefa, 1993).
The laws and structures of the state and the ideological authority of the Church
both contributed to the reframing of conflict and the affected relationships. In the new
system, maintaining rules of law and civil order was the primary concern, and this did not
mandate the restoration of social relationships (Estrada-Hollenbeck, 2001). No longer
did the traditional system fit the new ideals of person-state or person-God obligations.
Under the traditional justice system a conflict between two members of a
community is regarded as a problem which afflicts the entire community. In order
66
to restore harmony, therefore, there must be general satisfaction among the
community at large, as well as the disputants, with the procedure and the outcome
of the case. Public consensus is, moreover, necessary to ensure enforcement of the
decision through social pressure. (Penal Reform International, 2000: 26)
As colonialism and conversion changed traditional values in the local population,
restoration between communities was traded for obeisance to the state and to the JudeoChristian God. As explained earlier, the retributive component introduced by the
Western judicial court was also significant in helping to reframe the local concept of
justice and resolution. Research in Cameroon suggests that this idea of "justice" as
indoctrinated by the colonial court is one over which the traditional systems have no
jurisdiction at all. Justice, a Western idea, includes all the trappings of a Western system
made up of low-context, distributive, impersonal, "unbiased" formal institutions.
Western courts have the monopoly on justice since it was they who defined the concept,
just as Western religions have the monopoly on holiness since it was they who defined it.
Failure to transplant formal justice
This report has shown how the traditional conflict resolution systems in Vanuatu
and Cameroon have fallen out of efficacy in the wake of changing values. A natural
supposition would be that this is also due in part to a new and successful conflict
resolution system. What was the local response to the Western justice system as
introduced during colonization? What evidence supports the claim that this formal
system, in operation today, is imperfect for local needs?
The new Western system is seen as superior and preferential to most locals, yet its
justice doesn't rightly fit with local values. Successful problem resolution by reframing
requires the new framework to "respect[s] the views, opinions, expectations, and
assumptions of the people who are currently experiencing the problem. If the reframing
67
is to work, the problem must be redefined in a way that makes sense to people; it must be
'translated' into their language." (Criss & Johnson, 1993: 140) Research shows that the
Western judicial system, while installed on a wave of power and authority by the state,
did not effectively translate into changing local cultural values.
Local attitudes toward the Cameroonian formal justice system are complicated.
Those who are trained in and employed by the courts believe that the formal courts are
superior in their task for a number of reasons, including perceived fairness, and legal and
institutional power by association with the state. Even so, most formal court employees
recognize the need for traditional councils to perform important social functions which
formal courts cannot. One official stated:
In theory, the village traditional councils are ideal forums for the majority of the
disputes that their community members experience. However, there are many
problems with issues such as favoritism that reduce the authority of the councils.
Without this, their judgments are neither respected nor honored and they are
unable to provide the service for which they exist. What is clear, however, is that
the village traditional councils' understanding of local matters is far deeper than
my own, for example, and therefore, when operating effectively, they are the most
appropriate forums for the villagers to take their disputes to. It is important that
they operate effectively to lighten the burden on the formal court system.
Statutorily, the traditional councils are not recognized. (High Court President
interview, personal communication, 16 August 2009)
The idea that the formal courts can provide justice through power was echoed by some of
the people who brought cases to the court. One of these people related that she came to
the high court to see an official who had "the power and authority to command people to
give justice" (High Court Interview F2, personal communication, 12 August 2009). This
logic seems sound, but in reality, the formal court cannot effectively command people to
attend any more than the traditional councils could do. Most of the difficulties regarding
the operation of the formal court are delays or absences relating to the costs of travel.
68
People may have framed their potential success at court in terms of money because that is
what this form of justice symbolized: financial gain or loss.
Most of the people interviewed waiting to be heard by the High Court or the State
Counsel indicated that they would find their choice of forums satisfactory if the financial
compensation at the end surpassed the costs going in. Another common theme was the
promise that the formal court could provide justice or a solution that might be impossible
elsewhere. Some people had travel and opportunity costs nearly equal to that of an
annual salary; some had been waiting for judgment for years. Responses to the query of
why one had chosen to come to the High Court ranged from the expectation of a final
solution to the certainty of a just decision.
Laura Nader, a legal expert with an anthropological focus, suggests that newly
post-independent states relied heavily on Western law to create a homogenous people
(Nader & Todd, 1978). Whether or not a homogenous people is a prerequisite to
developmental success, or Western law provides the key to it, "it is treated as if it were
God's Truth...the ideal that if these nations import a legal system or code from a
progressive country, they too will have at least the seeds of progress and modernity"
(Nader & Todd, 1978: 32). Nader claims that push for homogeneity frequently arises
from one section of the population trying to asset authority over other parts. Recognition
of this aspect of the system, and of the economic discrimination of a forum that for many
was cost-prohibitive, indicate the social dissatisfaction with the formal courts that belies
the praise and faith most natives profess for them.
The inaccessibility of the formal court system likely adds to the high value and
expectations of it in the minds of the local population. Though the Cameroonian Law on
69
Judicial Organization decrees that there must be a court in each regional division, there is
not. One court with only a handful of magistrates therefore ends up serving another
subdivision every two months, totaling an area of nearly 700,000 people; some
magistrates will have 80 or more cases on their docket daily. The costs of travel,
payment, and waiting for a case to be heard are prohibitive, legal illiteracy keeps
proceedings and outcomes from being fully understood, and even translation may not be
appropriate or correct (Penal Reform International, 2000). The limited resources of the
judicial system contribute to the overburdening of the courts, and in some cases may
affect the quality of justice provided. One Court of First Instance official noted:
Considering bad roads, even people there such as magistrates are reluctant to go
for circuit courts. There are also delays on payment of outstation allowances.
This has an effect on people's (magistrates') psychology. If magistrates are not
paid on time, they lack incentive, and it affects the efficiency of legal service.
Investigators are affected, too. (Ambo-Esah Law Firm, personal communication,
August 18 2009)
The limitations of the formal court system preclude the growth and regularization of its
use in rural areas. This may be due in part to people's distaste for distributive, linear
justice systems, despite their rejection of the traditional, restorative kind.
It would appear that not only is it impossible to provide access to formal justice
on the Western model, at least for the time being, but that in any case it does not
provide the type of solutions – the kind of restorative justice – appropriate to
people living in small close-knit communities. (Penal Reform International, 2000:
10)
The infrastructural insufficiencies of the formal court system are nonetheless a
considerable part of the problem in accessing justice in Cameroon.
Cameroonian women who had brought cases to the High Court explained this
promise of justice and material compensation as their rationale, whereas men who had
brought cases identified the obligation to attend as their primary motivation for doing so.
70
To the males, financial gain or the promise of justice were incentives, but not the initial
justification for appearance at the High Court. This disparity between male and female
perception of the High Court supports the oft-mentioned supposition that the traditional
councils and customary courts were biased (against women). Women rarely brought
cases before these alternative justice forums, preferring the High Court. Perhaps the
female preference for Western justice is evidence of the gender inequality of traditional
and customary mores. The suggestion that the Western court is unbiased may be in
reference to the obvious gender inequities that are currently upheld in many indigenous
cultures today.
This point about bias raises some essential questions. By Western definition,
much of the behaviors exhibited by collectivistic, high-context cultures are interpreted as
biases or favoritism. The perception of favoritism originates from the strong ties
between an individual and those in his or her ingroup (Hofstede, 1997). Acknowledging
a perception as such is vital to understanding the recurrent charge that traditional courts
are biased. Traditional councils and customary courts aim to solve disputes based on
cultural values at the present time. The lens of Western culture exacerbates the claim that
traditional institutions such as the councils are biased. This is an ethnocentric
perspective, albeit one that merits further consideration as the needs and concerns of the
local culture change. It is not bias itself that determines the righteousness of one's ethics,
but the standard to which that bias is upheld. A bias against women as a rule in
community management would be unjust, but certain biases are constructive for society.
For instance, a bias towards intelligent people in leadership positions would be not only
acceptable but beneficial to the whole. The frame of bias as applied to traditional
71
councils may therefore be an appropriate allegation in terms of gender discrimination, but
in terms of bias as a natural consequence of collectivism, could also be a side effect of the
colonial superiority mindset.
Bias is further distinguished within tribal and ethnic lines; among insider/outsider
groups that describe "the dualistic arrangement of categories or groupings of individuals"
of the indigenous (Nader & Todd, 1978: 28). Both in Cameroon and in Vanuatu there
exists within local areas a caste of those with original claim to the land. In Vanuatu the
term for this was "manples", literally meaning 'the people of here.' This title did not refer
to anyone from an 'outside' island,or 'outside' village, no matter how many generations
their families had been local. It did not apply to anyone from a different linguistic group
of origin, no matter how fluent they might be in the local language.
The corresponding group in Cameroon had their tribal moniker written into the
formal name of the village; in the official title such as 'Bombe Bakondo' Bombe is the
name of the village, while the second term refers to the Bakondo tribe of which a
majority still live in the Bombe area. In both countries, villagers gave priority to the
most local, long-standing members of the community. The advantage generally awarded
members of this top caste is one reason that informal conflict resolution systems,
especially in Cameroon, are seen as biased.
It is all the worse when the dispute involves litigants of unequal status or different
group membership, for in such situations the grievance is usually heard within the
legal sphere of the dominant culture, a culture whose values are usually quite
alien to one of the parties. (Nader & Todd, 1978: 37).
The formal court system in Cameroon is itself far from unbiased, though the many
indictments of the traditional councils tend to imply that the alternative is free from such
72
negative qualities. A court official explained:
The formal court system is preferred because, while some members are corrupt,
the procedures nonetheless exist to ensure that a trial is fair. For example, if the
defendant/ accused in a case believes that the magistrate will be biased against
him and he has a tangible reason to support this, should he register his
dissatisfaction through the appropriate channels, the magistrate in question will be
changed. (Registrar interview, personal communication, August 10 2009)
In principle this clarification is easily managed, but only in cases in which the defendant
is aware of this practicality, and even then it may not be possible in a court with only four
magistrates. Despite assertions that the formal courts are unbiased and just, many people
who had had cases settled by these courts were dissatisfied. A common reaction to a
distributive outcome that did not end in one's favor would be the inaccuracy of the trial,
the bias of the judge, or something sinister like black magic causing misfortune to reign.
This is evidence that "the staged and linear model of conflict management popular in the
Euro-American setting has proved inadequate and frequently inappropriate for nonWestern cultures" (Pedersen & Jandt, 1996a: 3). The guilt or innocence crux of
retributive justice tends to bypass whether or not the perpetrator is remorseful for having
done wrong by society, and for those used to restoration, this absence compounds a sense
of injustice (Montville, 2001).
Some of those summoned to the High Court felt neither eager to be there nor
certain of justice. One person waiting to be heard shared, "I did not steal [his motorbike].
I am not guilty and yet I am being sentenced. I have no lawyer and there is to be no trial"
(High Court interview M3, personal communication, August 12, 2009). His declaration
speaks to the deficiencies of the court system as well as the legal illiteracy of much of the
rural population. Lack of legal understanding is a significant problem in accessing justice
throughout Cameroon and much of the developing world. Local people are unaware of
73
the forums available to them, unfamiliar with the processes, and ignorant of assistance
programs such as legal aid. Legal illiteracy is aggravated by the pluralistic legal
environment, in which justice by one forum does not constitute justice by another.
In these pluralistic situations, it appears that fairness or something called "justice"
is difficult for the national legal system to achieve; the local litigants usually do
not understand what is going on or why one decision was chosen over another.
(Nader & Todd, 1978: 37).
Since its inception, the formal justice system has been plagued by legal illiteracy and the
consequent misuse and under-use of the courts. Formal courts and legal matters did not
naturally evolve from the local culture, so there was no initial engagement or
understanding among local populations. Following a study on breakdowns in governance
in Vanuatu, Huffer and Molisa wrote:
Half of the respondents indicated that there is a feeling of alienation from political
governance which is due to people and leaders not really understanding a system
they have been 'burdened' with, and have little hope of coming to grips with
without substantial education. In addition, this system is perceived as not
blending in well with a much older, familiar system. (Huffer & Molisa, 1999:
102-103)
To this day there remains a lack of ownership over the Western system, though some
individuals have adopted it; the formal courts have not become a normal part of social
interaction at the collective level. Another participant interviewed at the High Court
divulged:
I am deeply upset that I am here. I tried to settle the matter amicably, but failed. I
even tried to pay the man, but he refused to accept payment. He forces me to
come here as punishment. It is a waste of time, a waste of money. I have no
quarrel with anyone and I am not a thief. (High Court interview F4, personal
communication, August 12, 2009)
Several other people shared the experience of moving to the formal court after other
methods had failed to produce an "amicable settlement". The tone of this response
74
implies that by the time the case reaches the formal courts, an amicable settlement is no
longer the objective of the disputants. While traditional councils might have had a
chance of resolving the conflict without furthering the social tension, formal courts do not
need to even consider future relationships a priority. These courts will use linear
processes, low-context frameworks, and distributive bargaining to produce an outcome.
Yet the win-lose conclusion of a retributive process will invariably leave at least one
disputant feeling dissatisfied and misunderstood. The formal system thus fails to fulfill
the core identity need of restoring the fractured relationship so that an interdependent
future can occur. A Cameroonian barrister argues that this need is something the
traditional courts can uniquely meet:
Even with all the flaws quasi-judicial organs are still relevant. If a priest talks to a
husband for a domestic dispute, that is more powerful and appropriate than
putting him in jail for two years, after which the husband would come home and
beat his wife again. (Ambo-Esah Law Firm interview, personal communication,
August 18 2009)
The ineffectiveness of the penal reform system is another sign of the misguided
application of the Western system. In Vanuatu, jails are a mere parody of imprisonment.
Jail cells are open and prison doors stay unlocked. During the author's visit to one of two
national prisons, it was observed that prisoners played volleyball, watched television and
were allowed out to drink kava, a custom beverage with psychotropic effects, at local
nakamals every night. There was no shame equated with being in prison and the prison
security was so lax that there would be a jailbreak every few months. The system failed
to rehabilitate criminals or deter crime. It existed as a formality, a symbolic reminder of
the prisons of colonial times.
In one outrageous example of the disregard for the prison system, a group of men
75
on one of the inner islands were accused of committing a crime in the capital a few
months prior. The police, stationed in the nation's capital on a different island, sent word
that they would arrive on the next cargo ship later that week to arrest these men and
return with them to the capital. The men's families prepared a huge farewell celebration
the night before the ship arrived, expecting their stay in prison to last at least a year. The
police arrived on the cargo ship as expected, and arrested the men accused of the crime.
When they went to return on the ship, however, the men in custody would not pay the
transport fare for the return trip home, and the police also shirked the responsibility of
paying for the accused. The cargo ship operators would not permit passage without
payment, so the arrested men returned home, and the police boarded the ship to return to
the capital empty-handed. (Sara Pilgreen, personal communication with the author, May
19, 2006)
Stories such as these are common in Vanuatu, where the presence of the police at
any rural location must be encouraged with the purchase of fuel for the police truck.
Beyond the misunderstanding of the right to legal protection or prosecution, prison as a
formal correctional facility is entirely misunderstood. A judicial institution created for
the purpose of correction, safeguarding and consequent deterrence is instead used as a
relic of a time when meeting these objectives drove the creation of particular public
institutions. The emptiness of prison as a valid judicial instrument recalls Vanuatu's roots
as a low uncertainty-avoidant culture; Hofstede's argument about the measures taken to
avoid uncertainty-related anxiety ring much more true when the prison system is seen
through the lens of the Western colonial and post-colonial attitudes toward crime and
punishment.
76
In Cameroon, the prison system is far more restrictive, so much so that it overdoes
the practical element of imprisonment as a social rehabilitation and security mechanism.
The prisons in Cameroon are host to egregious human rights violations, and still those
prisoners with the warden's favor are still permitted to leave the prison during the
daytime. These domestiques show that-- much like in Vanuatu-- the purpose of removing
dangerous people from society as punishment is not truly a consideration. In Cameroon,
the overly punitive aspects of the prisons did not balance the lenient domestique policy;
the result was a schizophrenic system without a core purpose.
Many of the components of the formal justice system, such as the prison system,
fell into place in post-independent countries without a real comprehension of their
specific role and function. These were rationalized as the trappings of a good justice
system and accepted without real understanding or expectation of proper use. Along with
many other details of the formal justice process, such as long white wigs and black robes,
paperwork, and judge's chambers, these trappings took on considerable symbolic value
beyond that of the basic purpose. The whole stage of the courtroom, the characters in
play in the trial, and even the waiting are part of the requirements of the new, unbiased
justice of the Western courts.
Edward Hall's theory of extension transference might suggest here that this court
system is an extension, a human process manifested in external tools. Extension
transference is a "common intellectual maneuver in which the extension is confused with
or takes the place of the process extended" (Hall, 1976: 28). This means that the black
robes and white wigs and prison walls are what constitute justice, not the service that they
provide or the ethic they represent. It would mean the courthouse, the expense, and the
77
time commitment are every bit as emblematic of the justice system as the justice process
itself. This notion is worrisome, as it implies that locals might fail to hold the formal
justice system to account because extension transference would lead them to believe that
the details alone constitute real and accurate justice.
The difference between ritual with symbolic meaning and extension transference
is that the latter is cited by Hall as "a principle source of alienation from self and
heritage" (Hall, 1976: 32). Extension transference creates a gap that separates the
routines of life from human needs and processes in reality. Conversely, ritual is often a
powerful source of meaning and context for processes like conflict resolution in highcontext cultures. The sori ceremony is itself a ritual, using symbols that are meaningful
to all participants in a way that symbolizes peace and coexistence (Schirch, 2001). This
type of ritual was created by and for the people themselves, and brings them closer to
their heritage. The extension transference of the colonial court system does the opposite,
removing people from their heritage by using empty symbols without valid meaning.
Transplanted Christianity in Vanuatu can also feel like extension transference.
The ethics preached in the Church came with a set of appropriate routines and actions for
meeting religious standards. Native people traded in the majority of their self-taught
moral code for the Church's prescribed one; and thus attending church, singing hymns
and carrying a bible made one a "good Christian" whether or not one really upheld the
Christian values of the church. Some people rationalized domestic abuse, greed and
squandering family resources with the assumption that praying and churchgoing were all
one needed to win God's favor. Extension transference in this realm was every bit as
misleading and manipulative of social values as it was with Western justice.
78
This analysis brings the reader into the present day. Traditional conflict
resolution forums such as sori ceremonies and village councils persist, yet the relational,
restorative communal resolutions are no longer able to satisfy adapted expectations of
justice. Formal courts provide limited service due to lack of resources, but even the cases
that are managed therein emerge without the certainty of satisfaction. The distributive
justice doled out by formal justice forums rarely fulfills the needs of a society with deep
collectivistic roots.
Having little conception of state sovereignty, modern bureaucracy, written
covenants, formal participation structures and linear, sequential notions of time it
is unsurprising that traditional societies found, and still find, Western versions of
peace alien. This inter-cultural miscommunication, or less favorably the
imposition of one culture’s mores on another culture, may in part explain why so
many peace accords in contemporary ethnonational conflicts have difficulty in
making meaningful connections with communities. (Mac Ginty, 2008: 149)
It is regrettable that concepts of conflict management and people's needs for successful
resolution by way of appropriate justice have become so skewed that neither traditional
forums nor modern forums are reliably effective. No evidence suggests that this end was
an original goal of the colonists, or of the indigenous population. As an incidental
casualty of the colonial history of Vanuatu and Cameroon, conflict resolution has
suffered irreparable change. The impetus driving the use of former conflict resolution
systems such as the sori ceremony and the authority of the village council is no longer a
valid cultural need, while the Western-based court systems do not appropriately serve
cultural values, either. This exploratory research into the state of the current conflict
resolution forums in post-colonial societies finds that cultural values have shifted such
that neither traditional, informal resolution forums nor modern, formal resolution forums
are currently suitable.
79
Conclusion
Once-prized cultural values of social harmony and contextualized understanding
of conflict led to long-standing traditional resolution systems built upon restorative
justice. The dominating, oppressive force of colonialism superimposed a system of
justice premised on completely different social values. British and French judicial
systems embodied disciplined, unbiased, regulated social institutions built to guarantee
retributive justice. The resulting collision of these two opposing cultural perspectives on
conflict resolution left post-colonial societies with functioning but inadequate options.
The stain of colonialism is ever present, lingering in today's myriad conflict
resolution forums in post-independent states. Whether the culprit be traditional systems
of justice now condemned as biased; ritual reconciliation ceremonies now failing to
resolve deeply rooted divides; or Western-inspired institutions of justice unable to serve
the population adequately, locals are without a single effective, reliable route to conflict
resolution.
Colonialism resulted in the decentralization of power, the manufacture of false
and implicit borders among and between tribes, and the internalized trauma of an
oppressed and minimized people. Structural violence infested all social institutions
including the manipulative and powerful legal system. The state ruled all transactions
and controlled the affairs of the natives through selected authorities at the customary
level. The dual court system further segregated the local population while transforming
custom laws into Western establishment. Significant structural reorganization added to
social injustice, resulting in the psychological trauma of the disempowered and culturally
diminished local population. As the system rewarded those who distanced themselves
80
from their cultural heritage and practices, people began losing their cultural identity.
Custom values reeled from the collision with the formal social ethics and legal
dominance of the West, and in the end the local cultures were set on a path of continuous
value change.
Rural agricultural societies in Vanuatu and Cameroon were built around a
community nucleus. Behaviors and cognitive processes suggest that these sorts of
cultures, prior to colonialism, were collectivistic, and therefore much more communityoriented than individualistic societies such as France and Britain. Pre-colonial societies
were more comfortable with uncertainty than the colonists. They also communicated
very differently: local high-context communication relied on the meaning implicit in the
context of the message, whereas European low-context communication put most value in
the coded message itself. Each of these characteristics lies beneath vastly disparate
values and behaviors in each culture's original conflict resolution processes.
After colonialism ruptured these nation's histories, conflict resolution could have
evolved in several directions. One path would be the exclusive use of the colonists’
western justice system which would require complete abolishment of the informal justice
forums. Another path would be to revert back to traditional conflict resolution as the sole
source of justice, dismantling the western courts and police system. A third option was to
rely on both western and indigenous conflict resolution systems to varying degrees,
neither quite autonomous nor successfully interdependent. As this haphazard hybrid was
the path chosen in reality, both traditional and modern conflict resolution methods have
failed to become appropriate or satisfactory to local populations. Formal courts set up
during colonialism do not have the capacity or the resources to be available to the entire
81
nation. Even so, the form of Western retributive justice that these courts provide is rarely
an adequate solution for the reconciliation-dependent locals. Traditional forums continue
to operate but without the trust or the respect of the native populations. A lack of
satisfaction with restorative justice is one of the most incorrigible consequences of
colonialism.
In Cameroon, community members and formal justice officials alike believe that
the traditional council is incapable of providing adequate conflict resolution. In Vanuatu,
examples of failed sori ceremonies indicate the irrelevance of its use. The needs and
ethics of the local culture that once underwrote original conflict resolution systems have
changed. The old system is no longer what natives desire or rely upon to successfully
resolve disputes. The new Western-inspired system does not appear to be what they
desire or rely upon to successfully resolve disputes, either.
Interviews and assessments in the research for this work show that concepts of
justice and people's desire for fair and fitting dispute resolution have altered drastically
since colonialism. As a result of legal systems embedded with structural violence, the
change in perceptions of conflict resolution options meant that the basic human need of
means to a peaceful society was unmet. The understanding of notions such as unbiased
justice, fair compensation and the purpose of penalties have all shifted in response to
Western framing. The reconfiguration of native identity and the corresponding cultural
values has caused successful conflict resolution to remain elusive in post-independent
states. The need for restorative justice makes Western courts unfathomable, while the
new ideas of justice based on the retributive system of the colonists render traditional
forums substandard and obsolete.
82
To reduce all the comments and perceptions in this exploratory research to a
single point, there is a basic similarity between native dissatisfaction with informal and
formal justice systems alike. Neither of these systems originated from current indigenous
values. Neither system fits perfectly because neither one is a product of cultural
expression and ownership. As such, neither fully meets basic human needs, without
which internal and systemic conflict is standing by. It is arguable that the lack of cultural
ownership and buy-in is the main factor influencing informal and formal conflict
resolution systems' inadequacy. How could either of these systems-- one a relic from an
untouched world, one a foreign import-- fit changing values? Native cultural ethics have
evolved significantly in recent centuries, and the future of globalization suggests that they
will continue to evolve. Any conflict resolution system that attempts to successfully and
fairly serve a population must originate from the people themselves, according to their
specific values and beliefs.
The ultimate goal for successful conflict resolution post-independence is a system
by which all people are satisfied, and which upholds a positive peace. With this objective
in mind, it is simple to identify the weaknesses in the current conflict resolution options.
Formal systems that bear the mark of colonial imposition fail to recognize and respect the
culture of the indigenous and their own oppressive origin. Informal systems that no
longer meet cultural needs fail to honor and respond to the evolution of indigenous
cultural values.
People need and deserve useful, relevant conflict resolution processes; societies
depend on them to maintain order and encourage a healthy standard of behavior. In the
absence of a social institution that meets these requirements, basic needs are unmet.
83
Galtung's negative peace reigns over an environment of social injustice, and the structural
violence ingrained during colonialism perpetuates its destruction of native self-esteem
and autonomy.
For post-colonial nations such as Cameroon and Vanuatu, none of the currently
established systems are wholly accurate for conflict resolution. Citizens should be
allowed to identify and correct the inefficiencies and inadequacies in the conflict
resolution systems designed to serve their needs. These systems will have to be reformed
or a new system created if there is to be social order, harmony, and positive peace.
The future of conflict resolution
If the challenge of legal scholarship is to be creative and innovative, is it not
possible to innovate or reform in a fashion which will translate the interests,
perspectives and notions of justice and fairness of the large majority into law- or
at least attempt to do so? If that is not attempted, then can we and do we have the
right to expect such a law to become the property of the nation? (Shivji, 2000: 60)
What, then, is the possible recourse for this situation of imperfect options? To exact an
answer, it is necessary to identify the main component of a successful conflict resolution
process; something that the forums available today have been lacking. The missing
element is participatory creation; it is interactive, collaborative establishment. This is the
way to verify that the process will reflect the values and norms of the people whom it
aims to serve. "Groups which seek to satisfy their identity and security needs ...are in
effect seeking change in the structure of their society" (Azar, 1986: 39).
Official justice system and legal experts in countries such as Cameroon and
Vanuatu should canvass their respective populations for the truth about what locals need
in terms of successful conflict resolution. Ideas of justice should be studied and clarified
on the local, grassroots level, in the process connecting the rural demographic with the
84
government judicial system. Following this inquiry, judicial systems and laws should be
revamped to reflect the current state of indigenous beliefs and include elements of local
culture. As much as it is possible for a formal, Western court system to incorporate
indigenous identity and tradition, the official system should be overhauled.
This idea may strike skeptics as impractical and unrealistic, but forums such as
this, which authentically merge legal structure with indigenous practice, do exist. A rural
village in Vanuatu hosted a hearing following the sudden death of a local young man. An
accusation of witchcraft in association with this death brought an elderly, isolated man
from a faraway village to trial. The hearing was overseen by a panel of local officials,
including everyone from the chiefs and the church elders to the provincial government
officer, and was open to anyone who wished to attend. Residents from the villages of
both the young deceased man and the older accused man flocked to the event. The
hearing proceeded much like any trial, with statements from the accused and several
people who were close to him or who were involved in the young man's death. The floor
was then opened to anyone who wished to comment on the matter. After all had spoken,
the panel retired to a nearby hut to deliberate, and the crowd passed around leaves full of
rice and stew. Thirty minutes later the panel emerged with a verdict - not guilty- and an
explanation. The villagers returned to their communities with renewed faith in the local
indigenous and government authorities. (Cot blong yangfala ded, observation by the
author, January 12 2005)
In this homegrown resolution process, it is significant to note the successful result
of merging several disparate elements from both the formal Western system and the
traditional one. Primarily, this was a mechanism set up and carried out on local terms,
85
and had the outcome not met local needs, it would not likely have been reused. People
were satisfied with the process because it included them. From the range of officials to
the open floor for community participants in the trial, the structure was intentionally
inclusive, and inclusive is restorative. They were also satisfied because they had
entrusted the outcome to the officials at the event; the mix of religious, community and
elected leaders meant that no matter one’s loyalty, the authority of the group was assured.
Had a punitive outcome been decided, a group of leaders such as this would have
certainly had the power and influence to impose it.
The compulsory nature of this original format lent additional integrity to the
process, and subsequently, the outcome. This was one method realized by a local
community in order to integrate local, regional and official standards for dispute
resolution. A feasible and effective process was needed, and the necessity of addressing
the issue quickly added urgency to the process. As seen in this example, the most
important components of the process can be determined and included by the community
when the need arises.
The design of this process included some of the most vital features of the different
systems: collectivistic environment, consideration of facts and evidence, and a mix of
family status and government appointed leaders. If this village on a rural Pacific island
could develop a system to satisfy indigenous and legal requirements in times of need,
surely there exists hope for a renewed future justice forum at the government level. All
that is needed is local stakeholder engagement and consideration of indigenous practices.
The deficiencies of the current available conflict resolution systems are
undeniable, and true resolution of conflict demands reconciliation of old values with new
86
practices. As the locals are encouraged to participate in the creation of a rehabilitated
justice system, indigenous identities will reclaim the honor and recognition denied since
colonialism. The process is difficult, but the final result will provide a uniform,
comprehensive and validated system of justice and conflict resolution that will have the
support of the people. Despite the harsh realities of cultural collision and the continued
onslaught of globalization, it is not only possible, but essential that states be encouraged
to modify and reform the judicial system into one that truly endorses social harmony for
all people.
References
Abu-Nimer, M. (1996). Conflict Resolution Approaches: Western and Middle Eastern
Lessons and Possibilities. American Journal of Economics and Sociology, 55 (1),
35-52.
Aghelmo, A.T. & Ibhasebhor, S. (2006). Colonialism as a Source of Boundary Dispute
and Conflict among African States: The World Court Judgement on the Bakassi
Pennisula and its Implications for Nigeria. The Journal of Social Science, 13(3),
177-181.
Arthur, J. & Marenin, O. (1996). British Colonization and the Political Development of
the Police in Ghana, West Africa. In C. Fields & R. Moore, Jr (Ed.), Comparative
Criminal Justice: Traditional and Nontraditional Systems of Law and Control (pp.
163-180). Illinois: Waveland Press, Inc.
Assefa, H. (1993). Peace and Reconciliation as a Paradigm: A Philosophy of Peace and
Its Implications on Conflict, Governance, and Economic Growth in Africa. Kenya:
Nairobi Peace Initiative Monograph Series.
Avruch, K. (1998). Culture and Conflict Resolution. Washington, DC: The United States
Institute of Peace Press.
Azar, E. (1986). Protracted International Conflicts: Ten Propositions. In E. Azar & J.
Burton (Ed.), International Conflict Resolution: Theory and Practice (pp.28-39).
Sussex: Wheatsheaf Books.
Burgos-Debray, E., Ed. (1983). Me Llamo Rigoberta Menchu Y Asi Me Nacio La
Concienca. Barcelona: Editorial Argos Vergara.
87
Chanock, M. (2000) 'Culture' and human rights: orientalising, occidentalising, and
authenticity. In M. Mamdani (Ed.), Beyond Rights Talk and Culture Talk:
Comparative Essays on the Politics of Rights and Culture (pp. 15-36). New York,
NY: St. Martin's Press.
Churchill, W. (2003). Perversions of Justice: Indigenous Peoples and Angloamerican
Law. San Francisco: City Lights.
Criss, J. & Johnson, P. (1993). Community Psychology Applied to Peace Studies. In K.
Larsen (Ed.), Conflict and Social Psychology (pp. 133-143). Olso: International
Peace Research Institute.
Estrada-Hollenbeck, M. (2001). The Attainment of Justice through Restoration, not
Litigation: The Subjective Road to Reconciliation In M. Abu-Nimer (Ed.),
Reconciliation, Justice, and Coexistence: Theory and Practice (pp. 65-86).
Maryland: Lexington Books.
Fisher, R. (1993). Towards a Social-Psychological Model of Intergroup Conflict. In K.
Larsen (Ed.), Conflict and Social Psychology (pp. 109-122). Olso: International
Peace Research Institute.
Galtung, J. (1969). Violence, Peace, and Peace Research. Journal of Peace Research, 6
(3), 167-191.
Gabiddon, S. (2010). Race, Ethnicity, Crime, and Justice: An International Dilemma. Los
Angeles: Sage Publications, Inc.
Gopin, M. (2002). The Use of the Word and Its Limits: A Critical Evaluation of
Religious Dialogue as Peacemaking. In D. Smock (Ed.), Interfaith Dialogue and
Peacebuilding (pp. 33-46). Washington, DC: United States Institute of Peace.
Hall, E. (1976). Beyond Culture. New York: Anchor Books.
Hosftede, G. (1997). Cultures and Organizations: Software of the Mind. New York:
McGraw-Hill.
Huffer, E. & Molisa, G. (1999). Governance in Vanuatu. Pacific Economic Bulletin,
14(1), 101-112.
Indigenous Peoples: A Global Quest for Justice. A Report for the Independent
Commission on International Humanitarian Issues. (1987). London: Zed Books,
Ltd.
88
Jandt, F. & Pedersen, P. (1996a). Culturally Contextual Models for Creative Conflict
Management. In F. Jandt & P.Pedersen (Ed.), Constructive Conflict Management:
Asia-Pacific Cases (pp. 3-26). California: Sage Publications, Inc.
Jandt, F. & Pedersen, P. (1996b). The Cultural Context of Mediation and Constructive
Conflict Management. In F. Jandt &P. Pedersen (Ed.), Constructive Conflict
Management: Asia-Pacific Cases (pp. 249-275). California: Sage Publications, Inc.
Kriesberg, L. (2001). The Changing Forms of Coexistence. In M. Abu-Nimer (Ed.),
Reconciliation, Justice, and Coexistence: Theory and Practice (pp. 47-64).
Maryland: Lexington Books.
Kruglanski, A., Bar-Tal, D., & Klar, Y. (1993). A Social Cognitive Theory of Conflict. In
K. Larsen (Ed.), Conflict and Social Psychology (pp. 45-56). Olso: International
Peace Research Institute.
Mac Ginty, R. (2008). Indigenous Peace-Making Versus the Liberal Peace. Journal of the
Nordic International Studies Association, 43(2), 139-163.
Mamdani, M. (1996). Citizen and Subject: Contemporary Africa and the Legacy of Late
Colonialism. Princeton, NJ: Princeton University Press.
Mani, R. (2000). The Rule of Law or the Rule of Might? Restoring Legal Justice in the
Aftermath of Conflict. In M. Pugh (Ed.), Regeneration of War-Torn Societies (pp.
90-111). Great Britain: Macmillan Press, Ltd.
Menon, N. (2000). State, community, and the debate on the uniform civil code in India.
In M. Mamdani (Ed.), Beyond Rights Talk and Culture Talk: Comparative Essays
on the Politics of Rights and Culture (pp. 75-95). New York, NY: St. Martin's
Press.
Montville, J. (2001). Justice and the Burdens of History. In M. Abu-Nimer (Ed.),
Reconciliation, Justice, and Coexistence: Theory and Practice (pp. 129-144).
Maryland: Lexington Books.
Moore, M. (1993). Mirroring and Misperceptions: "Where ignorant armies clash by
night;" A review of misperceptions and mirroring in intergroup relations. In K.
Larsen, (Ed.), Conflict and Social Psychology (pp. 71-80). Olso: International
Peace Research Institute.
Moosa, E. (2000). Tensions in legal and religious values in the 1996 South African
Constitution. In M. Mamdani (Ed.), Beyond Rights Talk and Culture Talk:
Comparative Essays on the Politics of Rights and Culture (pp. 121-135). New
York, NY: St. Martin's Press.
Nader, L. (2002). The Life of the Law: Anthropological Projects. Berkeley: University of
89
California Press.
Nader, L & Todd, H, Jr., Eds. (1978). The Disputing Process - Law in Ten Societies.
New York: Columbia University Press.
Nhalpo, T. (2000). The African customary law of marriage and the human rights
conundrum. In M. Mamdani (Ed.), Beyond Rights Talk and Culture Talk:
Comparative Essays on the Politics of Rights and Culture (pp. 136-148). New
York, NY: St. Martin's Press.
Penal Reform International. (2000). Access to justice in sub-Saharan Africa: the role of
traditional and informal justice systems. United Kingdom: Astron Printers, Ltd.
Schirch, L. (2001). Ritual Reconciliation: Transforming Identity/Reframing Conflict. In
M. Abu-Nimer (Ed.), Reconciliation, Justice, and Coexistence: Theory and
Practice (pp. 145-164). Maryland: Lexington Books.
Shivji, I.G. (2000). Contradictory perspectives on rights and justice in the context of land
tenure reform in Tanzania. In M. Mamdani (Ed.), Beyond Rights Talk and Culture
Talk: Comparative Essays on the Politics of Rights and Culture (pp. 37-60). New
York, NY: St. Martin's Press.
Smith, J. (1996). The Effects of Tribal Wars on Personal and Family Disputes in Papua
New Guinea. In F. Jandt. & P. Pedersen (Ed.), Constructive Conflict Management:
Asia-Pacific Cases (pp. 112-118). California: Sage Publications, Inc.
Tangiora, P. (1996). An Indigenous Perspective on One Aspect of Reconciliation. In F.
Jandt & P. Pedersen (Ed.), Constructive Conflict Management: Asia-Pacific Cases
(pp. 215-219). California: Sage Publications, Inc.
Tatum, B. (2002). The Colonial Model as a Theoretical Explanation of Crime and
Delinquincy. In S. Gabiddon, H. Greene, & V. Young, (Ed.), African American
Classics in Criminology and Criminal Justice (pp. 307-322). California: Sage
Publications, Inc.
Zartman, I. W., Ed. (2000). Traditional Cures for Modern Conflicts: African Conflict
Medicine. Boulder, CO: Lynne Reinner Publishers, Inc.
90
Appendix A: Barrister Surveys, Kumba, Cameroon
Barrister Interview
M30, barrister, Kumba
Tuesday 11th August
Type of client
“Concerning civil matters, the clients I mostly handle are low-income cocoa farmers.
Meme is a rural division. Cocoa is the primary cash crop. Its population is largely
impoverished”.
“The volume of cases I can expect to handle depends on the season. Cocoa is harvested
between August and January. Harvest is a period of bounty for the farmers. It is the six
months within the year when they have cash and will therefore look to spend it. Not only
do crime levels rise, but, desperate to show off their relative wealth, the farmers will seek
to settle disputes not at their traditional council, but in court. It is one of the means
available to them to assert their status within their community”.
Clients’ reasons for bringing disputes into the formal system
“The majority of clients bring their disputes to me because they believe their traditional
council to be ineffective. Too often, their councils judgements will be biased. Whereas, in
the formal courts, they are confident that they will receive a fair judgement”.
“One of the major problems with the traditional councils is that participation is voluntary,
not mandatory, and therefore the council’s judgements can lack authority”.
Process
“I will always ensure that all other options are exhausted before taking a case brought to
me to court. Court must be the final choice”.
The overburdening of the Court of 1st Instance in the Kumba Central sub-division
“The Court of 1st Instance in the Kumba Central sub-division is overburdened. Whilst the
constitution decrees that their should be a Court of 1st Instance in every sub-division, the
reality is very different. There is no Court of 1st Instance in either Konye or Mbonge, the
other sub-divisions, along with Kumba Central, in the Meme division. Consequently,
disputes are brought to this court from the entire division despite the fact that the court
only has the capacity to handle disputes from one sub-division, not three. Villages in
Konye and Mbonge, in particular, therefore, being geographically further from the court,
have a harder time accessing justice”.
91
“One of the major problems in the Mbonge sub-division is the ignorance of its population
concerning justice forums available to them”.
Barrister Interview
Awotah's office
17 August 2009
The Division
1. In the Meme division, how would you describe the majority of the population?
People decide to - different classes of people have different understanding of where they
go to solve disputes. Court authorities decide where cases go depending on the facts - let
me say in criminal cases the legal department handles it. They determine which court is
competent to handle the case.
(What about people who go to the police, who send them to the gendarmes, who send
them to the courts?)
It takes time and money but that is just procedure. The correct procedure.
The Constitution
2. The constitution decrees that there should be a Court of First Instance in every
subdivision. Is there?
Every subdivision has a court. Mbonge doesn't have it, since it is under Meme. They go
here. The reason that the government knows there is supposed to be a court in Mbonge,
that is why every month the court goes to Mbonge.
In Meme, we have four magistrates for the Court of First Instance. If one is going to
Mbonge, three will stay here. It is programmed, at these times a particular magistrate
will be assigned to Mbonge and the people there know when to go, and all legal matters
are listed to save for that time when the court comes.
What effect does this have on the population? (Do you find the Kumba court
overburdened?)
Overburdened? It's not like it is. Meme is big, so there are lots of cases; what do you
expect?
High court cannot move to Mbonge so they [Mbonge people] are bound to come here.
All surrounding villages in Meme are supposed to come here because the High Court
cannot move.
Clients
3. What type of person mostly brings disputes to you?
4. Do you receive clients more from one geographic area than another?
5. What type of disputes do you mostly handle?
You know those things vary, the type of disputes vary too. In Meme there are a certain
type of cases - you cannot compare disputes of Meme to Fako division. Those of another
92
division may be different, it depends on the type of people. Maybe Fako has more labor
matters or civil matters.
Alternative Justice Forums
(Do you think people who come to the court are satisfied with the time and money it
costs them to complete their proceedings?)
Even if they are not satisfied, they want justice. They just have to persevere. There are
people who insist their matter must be held in court - it depends on their various beliefs.
It's not like "If you want justice, you must only go to this place"- but generally we all
know why courts exist, it is for justice. Even the common man knows that. That is where
they can seek justice.
6. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, effective?
7. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, appropriate?
Elders in church might help disputes be solved amicably - that is ok. Church members
see it is something they can do to bring the people together (create peace). They can
solve certain community problems in a way (that they do better than other forums might).
Church members put their heads together.
The Land Consultative Board here has its own rule that even if matters goes to court even a certain level - that land matters must always by solved by the Land Consultative
Board, never by the courts.
It's not that the village councils have particular jurisdiction. If the traditional council
handles a matter, and they do it well, the participants are happy, that is fine. If people
are still not satisfied after the traditional council settles their case, they can take it to
high court, or even the court of appeals after that. And the village council decision is
thrown out.
(Have you been to Fako court? Is it as crowded with people and cases as Kumba's court?)
Yes, Fako is crowded because every court is crowded. Not everyone there has a case,
many people are there for bringing documents, litigation - there are so many reasons
many people are always around the court.
(Is there any problem with the justice system currently?)
As an individual, well, I don't really see any problem. It's just that - it takes time for
matters to get through the court and judgment to come out. Often this is because litigants
take lots of time to return to court with requested documents or fees. They will complain
a lot about the time it takes but they are mostly responsible.
(What about when a judge is promoted or moved, and all the cases they had started to
solve are placed back on square one with a new judge?)
93
New people automatically take over old cases when magistrates are moved; you have to
start immediately. Litigants are bound to complain. They consider expenditure and legal
matters, all the difficulties they have gone through waiting.
As a legal mind, it is what is supposed to prevail because what type of judgment would
they give starting halfway? It is better that they start from the beginning again.
Barrister Interview
Ngenko Law Firm
17 August 2009
The Division
1. In the Meme division, how would you describe the majority of the population?
As for occupation, the majority of the population is in the private sector. Mostly
informal, not professional, unskilled labor. All sorts of jobs like drivers, load carriers,
traders. The income level is routinely low, and the majority are not educated. Maybe
30% of the population of Kumba is educated, 70% uneducated.
The Constitution
2. The constitution decrees that there should be a Court of First Instance in every
subdivision. Is there?
No.
What effect does this have on the population?
The effect is that it makes it costly for people from that area [which doesn't have a court].
That is Mbonge subdivision. If someone has a problem, it affects them because they must
travel all the way to Kumba to file a complaint. Also there is a delay, time factor, and
expenses. A criminal can use that time to jump bail or disappear. It's also costly, which
makes access to justice difficult. People in these areas don't seek justice. The just prefer
to sit and sleep on their rights.
The circuit court is not enough to deal with the stockpile of cases in Mbonge that wait for
it's arrival. They are too many. The single magistrate who comes cannot treat that
backlog of cases. Justice delayed is justice denied. The circuit courts are not in any way
sufficient to make up for not having a permanent Court of First Instance in Mbonge.
Clients
3. What type of person mostly brings disputes to you?
All types. Professional, low-income, illiterate, educated.
4. Do you receive clients more from one geographic area than another?
No, I take cases from people all over the country. I was in Bamenda yesterday for court.
5. What type of disputes do you mostly handle?
We are general practitioners. We handle all types of disputes: divorce, labor. We don't
specialize.
(Yes, but are there more of a certain type of case in Meme because of the specific
94
population?)
Criminal matters are mostly handled here. This is due to lots of unemployment, lots of
crime. And secondly because the population is made up of farmers, there are more
farmers' disputes: boundary, trespass.
Alternative Justice Forums
6. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, effective?
To an extent, some are effective. Some are not effective. The traditional council is not a
court. It does not have coercive power - it cannot command people to attend. People
have to attend based on sheer will. The traditional council's decisions are not binding,
and they cannot be enforced.
The Land Consultative Board is quite good, though it is not a tribunal. Mostly
professionals are not called in. Land matters should be dealt with by [legal]
professionals. If they are left in the hands of non-legal professionals, they will not be
handled correctly.
The customary courts are effective in their domain. Their jurisdiction is greatly reduced,
so they do not have much work. They deal with marriages, succession. They provide a
good service for their particular domain.
7. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, appropriate?
I think they are appropriate. For now. It would be better if they could add tribunals for
failed banks - then they could detach housing cases from the mainstream, and have a
tribunal just for landlords/tenents/rent. Remove these from the mainstream. They should
have a traffic tribunal. Specialization would make justice flow a lot faster, if the regular
courts were reduced to dealing only with mainstream litigation. Every day the courts
waste hours waiting for people or documents to show up for traffic or rent cases. If they
were to separate these into specialized tribunals, the mainstream would be more clean.
(What about people who go first to traditional councils, then police, then the court?
Aren't they wasting their time and money?)
Yes, this is a result of poverty. If they had the money they would not go to the council.
Since they are poor, they look for the outlet that is cheaper. Say a woman has a case she
takes to the council, they charge her 5,000fr for a crate of beer. They don't solve the
matter appropriately, so she goes to the customary court and pays 10,000fr. If it is still
not solved she will go to the courts. The whole process is much more expensive, but it is
caused by poverty.
(Do you think the formal courts are overburdened? Too busy?)
No, the formal courts are not overburdened. They are not too busy. The problem is a lack
of personnel. It is this idea of clogging which looks like the problem, but they need to
recruit more personnel. Just four magistrates in the Court of First Instance are not
enough for 700,000 people. With the subdivisions and the D.O.s, Kumba should have at
least six or seven Courts of First Instance. The problem is a lack of personnel, not
95
clogging with too many cases.
The government does not take the justice system seriously.
Barrister Interview
Ambo-Esah office
18 August 2009
The Division
1. In the Meme division, how would you describe the majority of the population?
Could they be different? Their profession is usually farming. More than half the
population of Cameroon farms. My clientele, while different, reflects the population. The
backbone of the economy in Cameroon is agriculture. Kumba is no exception. You have
types of farmers - in my sphere, my clientele, you have the basic cash crop which is
cocoa, coffee -and for that, those who work on crop-sharing business. It's called "twoparty" in local parlance. There are different levels of economic class, even within the
farming business. Those who are leasing to tenants, some with multiple leases. Then
those who are rich, the landlords. People come in to my office saying "I've been duped
by my landlord, he imposed 60% instead of the promised amount." And beyond the
landlords, there are those even wealthier types, owners of palm, rubber or cocoa
plantations. There are those who buy and export mass quantities of these products.
These people bring cases, too. Those with a direct license to sell.
The Constitution
2. The constitution decrees that there should be a Court of First Instance in every
subdivision. Is there?
It is not the constitution. It is the Law No-2006/015 of 29 December 2006 on Judicial
Organization, Chapter II, Section 13, Sub. 2. We have a court in each division. It's
written that each subdivision should have a Court of First Instance, however, "its area of
jurisdiction may cover several sub-divisions" (direct quote from manual) and the court
may hear from other subdivisions. So these are courts that move around to serve other
areas, called circuit courts.
What effect does this have on the population?
There is an effect, considering the distance. People are reluctant to drag their defaulters
to come to court here. At the criminal level there is an effect too, because if I live in
Kumba and am arrested in Kumba, but I own a cocoa farm in Mbonge - jurisdiction has
to do with where you are arrested, and where the crime took place. Someone can always
apply for the matter to be transferred back to Kumba. Considering bad roads, even
people there such as magistrates are reluctant to go for circuit courts. There are also
delays on payment of outstation allowances. This has an effect on people's (magistrate's)
psychology. If magistrates are not paid on time, the lack incentive, and it effects the
efficiency of legal service. Investigators are affected, too. In criminal matters, if a
suspect is in detention, the investigators has to present the suspect before the State
Counsel, so investigator and suspect travel together to see the State Counsel - on bad
roads. The State Counsel then decides if he will grant bail or detain the suspect.
Clients
96
3. What type of person mostly brings disputes to you?
Most people are farmers.
4. Do you receive clients more from one geographic area than another?
5. What type of disputes do you mostly handle?
They bring mostly probate and civil matters.
Alternative Justice Forums
6. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, effective?
They are effective as a short-term solution. In their own way, they are quasi-judical
organs. The Division Office (D.O.) or chiefs, will come out with a solution which can be
lasting but is usually not. People who are unsatisfied will end up bringing their cases to
other venues.
7. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, appropriate?
They are appropriate considering that we have fewer courts. Justice is a result [that they
provide], and peace, reconciliation. Quasi-judicial organs have some flaws, such as
intimidation, corruption, vices such as discrimination against women. Even with all the
flaws they are still relevant. If a priest talks to a husband for a domestic dispute, that is
more powerful/appropriate than putting him in jail for two years, after which the
husband would come home and beat his wife again.
These forums are still necessary. Justice is more lasting, more credible in court, and
prisons for reformation.
It is appropriate for chiefs to have territorial administration, the same administration to
which the D.O. and the courts belong. They are reliable in a sense, because they are
authorities.
At times they handle things not in their jurisdiction, such as land disputes. Or maybe
criminal cases, ownership of land, etc. The Land Consultative Board is the only place
qualified to deal with disputes over land ownership.
(Do you see a problem with the justice system currently?)
Criminal matters are guided by criminal procedural code. Make sure you write all this
down. In the procedure we have direct summons. The code specifies - I'm talking about
bail as a problem, to me I don't see the payment - as per the law, bail is free. You have
self-bail and conditional bail. Conditional bail has two types of conditions, one to
deposit a certain sum of money. This money is taken to the treasury, and if the person is
found not guilty and acquitted, the money is refunded. When you jump bail, the money is
forfeited. The court says at the level of investigation, you can detain someone for the
purpose of investigation for up to two days, and extend this period for two more days. So
a person can be detained for up to four days. After four days, investigators can apply for
extension of the period of detention at the gendarmerie. Someone can be detained during
an investigation for up to six days. So to avoid this, most suspects pay 25,000 francs,
which is called the "head of claim", which is practically bribery. The 25,000 fr is not for
97
bail. This is specifically a problem in Kumba. The investigator has a right to detain
suspects, so people "bail" themselves out of this circumstance with a bribe. It is not
reimbursed, because it is not bail. This whole situation is just an indication of how
people lose faith in the justice system because they are encouraged to obstruct justice.
Also, people reduce their claims because they are required to deposit 5% of the money
they are claiming in court (or an amount the magistrate ascertains). These people are
farmers - they are poor, as many Cameroonians live on less than a dollar a day. This
leads to the reduction of claims because they don't have the necessary funds to deposit
the requisite 5%.
98
Appendix B: Kumba High Court Personnel Surveys
The President of the High Court, Kumba
16 August 2009
The Division
1. In the Meme division, how would you describe the majority of the population?
- occupation
- income level
- education
The majority of the population in this division is agrarian. The principle cash crop in the
region is cocoa and most people if not directly farming it are involved at some stage of
the crops lifespan. The majority are either farmers or share croppers that, for the most
part, produce cocoa - the cash crop - cocoa yams and plantains. There are also business
men in this division who sell the crop, as well as agents with a license to ship it and, of
course, there are those who transport it. The majority of the population's livelihood is tied
up with cocoa in some way or other.
The literacy level in the division is high on account of numerous government initiatives.
Every individual has the opportunity to go to school. There is a state run school in every
sub-division in Cameroon. These schools are virtually free.
The Constitution
2. The constitution decrees that there should be a Court of 1st Instance in every subdivision. Is there?
No.
If no, what effect does this have on the population?
It has no significant impact as the Court moves to meet the people's needs. Whilst there is
not a permenant Court in every sub-division, it has been decreed that when Courts exist
in neighbouring sub-divisions they should travel to meet the needs of the people. There
are regular slots when the Court travels to neighbouring sub-divisions. However, this
system is not as effective as it could be. It is logistically difficult to move. We do not
have the resources to ensure that it happens as speedily and effectively as it must.
Clients
3. What type of person mostly brings disputes to you?
- occupation
99
- income level
- education
Most civil cases are brought by farmers.
Most criminal cases are brought by the State against unemployed young men.
4. Do you receive clients more from one geographic area than another?
No. Cases come from all over the division.
5. What type of disputes do you mostly handle?
Civil - farming related matters: breach of contract, trespass, disputes over ownership of
titled land (NB: disputes over ownership of untitled land are referred to the Land
Consultative Board or to the traditional councils)
Alternative justice forums
6. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, effective?
The effectiveness of any alternative justice forum depends on the individuals involved. In
theory, the alternative forums in operation should be appropriate and highly effective. In
reality, however, the individuals involved can create barriers to justice. There are
instances, for example, when the Chairman of the Land Consultative Board will provide a
judgement on a case having neither consulted with any other member of the Board nor
followed the correct procedure.
In theory, the village traditional councils are ideal forums for the majority of the disputes
that their community members experience. However, there are many problems with
issues such as favouritism that reduce the authority of the councils. Without this, their
judgements are neither respected nor honoured and they are unable to provide the service
for which they exist. What is clear, however, is that the village traditional councils'
understanding of local matters is far deeper than my own, for example, and therefore,
when operating effectively, they are the most appropriate forums for the villagers to take
their disputes to. It is imporatant that they operate effectively to lighten the burden on the
formal court system.
Statuatorily, the traditional councils are not recognised.
The formal courts, as well, offer amicable settlements. Just today, I enabled two
Nigerians to come to an amicable settlement rather than take their matter to court. They
are, this very moment, withdrawing their application.
Different social groupings have their own groups set up for settlement of disputes.
100
To understand the Cameroonian justice systems you must get your ahead around the fact
that we have a multi-jural system.
7. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, appropriate?
- for the type of people they exist to serve?
- the type of disputes these people are most likely to wish to resolve?
When operating effectively, they are absolutely appropriate.
\
President of the Court of First Instance
13 August 2009
The Division
1. In the Meme division, how would you describe the majority of the population?
Income, I don't know. Meme is mainly agrarian and trade jurisdiction. Most people are
farmers of cocoa, or involved in the production or sale or trade of it, the vast majority.
There are very few civil servants or big businessmen in the export/import industry.
The Constitution
2. The constitution decrees that there should be a Court of First Instance in every
subdivision. Is there?
No.
What effect does this have on the population?
Its effect is that it makes justice further from the people. People in that jurisdiction have
to travel for miles and miles just to come to court. There's an economic problem too; the
state cannot afford to put courts where they should be.
With the three subdivisions and then the D.O.s, there should be about five courts
available. At least the rest are near enough. In Konye, people are not close enough.
Some areas border the subdivisions (fall within their jurisdiction) but there are no roads,
no access. It's really difficult. In one place there is a Bakossi tribe which should be in
Konye but it's not actually, and places like the Edikome areas are completely
inaccessible. If people have a complaint, they are reluctant to take it to the civil law
courts. Even if they did, it would take lots of time and hardships and lots of expenses to
pay to bring them and their witnesses to court. In the end of criminal trials, the court
does pay for the witnesses' travel costs, but it's a long time. The complainant must
usually encourage witnesses to come. One of the first cases I did was a capital murder
case, with a little woman who was pregnant. When she came late to court I should have
remanded her, but I did not, because she was pregnant and had no taxi money and had to
trek from the village.
Now I have a case with 16 people from Mambongi. Even if they had a car, the roads are
impassible.
101
The government provides for a circuit court - where there should be one there is not. The
Kumba Court of First Instance moves to Mbonge every two months or every six weeks.
Mbonge is really big, though there has been no formal census, I know the bulk of cases
has been in this court. Mbonge is where all the farms, land problems and legal illiteracy
are. Bulk of cocoa produced here. People there don't know how to follow the law.
Mbonge starts at Mile 40 near Muyuka, then through Munyenke to the Bakwere tribe. It's
very big.
(What does it involve when the court moves?)
To move the court? We have four judges here; each judge has a turn. (NB: One of the
four judges travels to hear all cases) We program cases ahead of time so that the judge
who must go out with the circuit court doesn't have any cases in Kumba at that time.
(What about when a judge gets promoted or moved, and the case must be started over?)
The principal of assumption. If I start a case and then move to another court, I have to
move it with me so it doesn't start over. This kind of transfer happens very often and is
also costly.
Clients
3. What type of person mostly brings disputes to you?
4. Do you receive clients more from one geographic area than another?
5. What type of disputes do you mostly handle?
Each jurisdiction has a particularity, a stronghold. People in Kumba are more likely to
bring cases involving fighting or assault than any other jurisdiction. These people are not
civil servants, they are farmers. Because there is a lot of farming, there are farm cases,
trespass, simple theft, criminal disturbances, incidental fighting. People settling things
with their fists.
If you talk about cases in court like adultery, marital problems - people don't bring these
as cases to the formal system. People are tolerant of such things.
There is also stealing under false pretenses. It's cause of business, people think they can
buy or sell anything. Even justice.
419 is Nigerian code for scams. There is a lot of these types of crimes due to the vast
difference between the very rich and the ordinary. The life of the rich looks like a dream.
People believe in fast money-making. It's not only caused by ignorance. Kumba people
love money. Buea and Limbe are not like that; they have class. Kumba is a class-less
society. People think they can accede any level of society with enough cash.
Alternative Justice Forums
6. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, effective?
7. Are, in your opinion, the alternative justice forums in the division, such as, for
example, the traditional councils and the Land Consultative Board, appropriate?
No, they are not effective. Some people are satisfied, but they are not effective because
the rule of law is not respected in my country. Traditional councils and customary courts
102
have their own jurisdiction - everything I say will be politically interpreted, so I have to
speak cautiously.
The Land Consultative Board: I am very dissatisfied with the chaos caused by the LCB as
a quasi-judicial function. When you deal with land, this is not quasi-judicial - this is true
judicial work! They are not trained in the rule of law and it causes lots of chaos. There
has long been a feud between the judicial and the administrative branches. Those on the
LCB should be trained if leaving their original function. The LCB should dispense justice
and give fair hearings - and they need to be trained to do this. In other countries, power
lies in the courts. Here, administrative authorities rule the courts. They really need to be
trained to make sound decisions.
The customary courts: I have supervisory authority over them, so I have the authority to
say this. Again, there is chaos. As President of the Court of First Instance, I am
supposed to control their cases. They do not have any inkling of their jurisdiction. They
are officially only supposed to deal with native law and custom. If there is a purely
customary marriage dispute or bride price - with no civil status- that is custom marriage;
that is their jurisdiction! The whole system of chiefs catching and taking women as their
wives - this is native law and custom. It is never a civil matter. In my village, chiefs just
kidnap wives, and it is tolerated. If the chief wants a wife, he does not ask permission of
the parents. If the chief's clique places the symbol of the chief in front a father's house,
he must appear at the chief's palace with a jug of wine to ask which of his female family
members the chief wants. Women who are married to chiefs wear a bangle of cowrie
shells to designate their status. These women have no say in the matter; they are chiefs'
wives. Marriage has nothing to do with civil laws.
The native courts' jurisdiction ends at 69,200 francs. They have no jurisdiction over
custody of children. They have no jurisdiction over civil status marriage.
Traditional councils have no jurisdiction at all! They have jurisdiction to bring peace to
neighbors in the neighborhood. They can help the chief collect fees to use in
development projects. But because they are the busiest, nearest, most lucrative form of
justice, people find it easier to get to them. People bring them land cases, criminal cases.
They are using the penal code, dealing with land matters, criminal matters - how
unfortunate! With that pervasive and parallel system of justice available, people tend not
to want to come to us [formal courts]. People suffer from legal illiteracy. They don't
know their own rights.
The government doesn't even know them. The traditional councils are not a court or
anything. They have no jurisdiction over anything. Their job is just a civic duty, like
peace keeping. Like a neighborhood watch. And they are so corrupt!
Fees for the customary court are something between 1,200 and 1,600 francs, but they
charge all kinds of things. They even have a manual. People here have a customary
mindset. What custom tells them sounds better than anything the government can say.
People aren't complaining about the fees imposed on them in these customary courts, so
the situation goes unredressed. We're not alerted to the violation of the set fees. And then
the people serving in the customary courts are a problem. If people are not empowered,
they are bound to do the job really badly. There are no premises for good work. They are
paid about 50 pounds every 6 months. Of course they exact money from the people! They
are not trained, and have taken no courses.
The system is dysfunctional, but too old. I don't know what to do. In most countries,
103
parallel justice systems are strong. Kosovo has custom courts that are even stronger.
The rule of law applies in all parallel systems of justice in Kosovo.
There is a law on legal aid, which exists to help poor people. I have heard of a new law
from last year (though not read it, it is from within the french judicial system) on legal
aid. Also I have created a legal aid commission to sit in my court. They help determine
the cases of people who cannot afford justice.
For example, a women deserted by her husband, still in charge of their children can
come to court free of charges. A women dragged to court by her husband for a divorce is
also covered by legal aid, and should have to pay no legal fees. Legal aid gives people
the right to counsel, but people don't hear that. Another problem with legal aid is that if
the counsel is appointed, he/she is reluctant to take the case because the treasury usually
does not pay them in a reasonable time frame. Legal aid should be available for people
who cannot afford justice, and their cases should be free of charge.
I have seen no cases receive legal aid since I came to this court two years ago. I set up
the legal aid commission. This is where legal illiteracy is the biggest problem. Legal
illiteracy is the first step in accessing justice. We need a legal literacy campaign to
educate people. Let them know the commodity exists.
Interview with Registrar of the Court of 1st Instance, Kumba
Monday 10th August
Type of person bringing cases
“It depends on whether the case is civil or criminal.
“Civil: (we hear cases for claims up to 10 million Francs. This might be increased to
twenty million, but I’m not sure).
“70% of cases are brought by men.
“The average age of claimants is 30+ years old.
“We keep no official record of the occupation, education, income level, number of
dependents, tribe of the claimant. However, I can tell you that the majority of cases that
are brought to this court are done so by farmers, on account of the region we are situated
in. Cocoa is farmed here and is a significant cash crop. Consequently, it can be found at
the heart of many disputes. Beyond that, I believe that cases are brought to us from an
equal distribution of the surrounding population - rich/poor; educated/illiterate etc.
“We also hear cases in which the claimant claims for no money whatsoever. In these
instances their cases are brought in the hope that the law can provide a just resolution to
their dispute.
“Criminal: Once again, cocoa is often to be found at the heart of many criminal matters
104
brought to this court. Cases of stealing and trespassing are common.
“70% of cases involve men.
“In the last quarterly report, all the criminal cases heard by this court concerned men.
“Criminal cases come from all over, there is no pattern whatsoever”.
The traditional councils
“The traditional councils have no jurisdiction. Their only function is to handle very small
cases on the village level. If a case brought to them is too complex, they must pass it on
to the Court of 1st Instance.
“Cases are brought to us by those people that initially took their case before their village
council only to be disappointed by their judgement.
“Most of the traditional village councils are very corrupt and therefore only deliver
unsatisfactory, biased judgements. This problem is widespread and cannot be said to be
concentrated in any one area.
“Traditional courts can play a vital role as long as they are adequately trained and so fully
understand the types of case they can handle and the process to follow when they
cannot”.
Referrals
“This court refers cases to the appropriate forum. For example, cases concerning nontitled land will always be redirected to the Land Consultative Board, just as cases
concerning polygamous marriage and administration of estates are sent to the customary
court”.
Overburdening of the court
“The court is overburdened. At present, too many cases are brought directly to this court.
If the traditional councils are able to handle more cases, and therefore ease the burden on
the formal court system, that would be good.
“The formal court system is overwhelmed. At the Court of 1st Instance, we have five
sitting magistrates. On a typical day, their case list can include as many as eighty cases. It
is not uncommon for them to sit until 10pm. Indeed, in Yaounde, and other areas that are
arguably more swamped than we are, it is not uncommon for the magistrate to sit until
2am! The High Court has only four sitting magistrates.
“The formal court system is preferred because, whilst some members are corrupt, the
procedures nonetheless exist to ensure that a trial is fair. For example, if the defendant/
105
accused in a case believes that the magistrate will be biased against him and he has a
tangible reason to support this, should he register his dissatisfaction through the
appropriate channels, the magistrate in question will be changed”.
Justice in Cameroon
“Sadly, justice in Cameroon is not free. The formal justice system is under-staffed and
under-funded. The magistrates are not given the protection they require to make just
judgements without fear of being attacked. When the government takes an interest in a
case, such is the pressure they are likely to exert on the magistrate that, no matter how
honourable he or she may be, it is nigh on impossible for a just judgement to be arrived
at”.
Interview with State Counsel, Kumba
Monday 10th August
Introduction
Our research to date and subsequent conclusions were outlined. It was explained that
having identified one of the primary contributing factors to the overburdening of the
formal court system - cases that could be resolved by other dispute resolution forum
being brought into the formal system - we were now hoping to identify whether or not
those people bringing cases that could be resolved elsewhere belonged, in the main, to the
same/ similar demographic. We elaborated that this information is vital if we are to focus
our project as we must.
Interview
“Those that choose not to take their cases to their village council, but instead decide to go
directly to the formal court system, do so, in the majority of cases, because they are
arrogant and conceited. They believe that the village council is below them. They don’t
care about it.
“When the white colonials arrived on our shores and established the rule of law, the
natives were delighted. The white man earned the reputation of delivering impartial
judgements. Judgements that were free from favouritism of any sort. Thus the rule of law
earned a reputation for being fair and was respected.
“The rule of law divides, it does not, as the traditional councils at their best aim to do,
restore harmony. Whilst the traditional councils, for many reasons, can be ineffective,
what we must remember is that Cameroon is essentially a rural country. Most people still
live in small communities. When disputes arise, we must therefore consider what is the
best solution, what is the most appropriate forum. In many cases, the traditional councils,
for low level disputes, are the most appropriate forum for a resolution that is not only fair
but that restores harmony within the village rather than widening a rift.
106
107
Appendix C: High Court waiting area interviews
High Court waiting area Interview
11 August 2009
F1
Sex: Female
1. Who are you waiting to see?
The Senior State Counsel.
2. Why are you waiting to see them?
I want him to give me justice for my case.
3. Why did you choose to come here?
Because I know he is the one who can do more better.
4. How long have you been waiting to see them? Days, Hours?
Three weeks, coming and going with different documents he requests.
5. Where have you come from?
Kumba
6. How long did it take to get here?
15 minutes by okada.
7. What were your travel costs?
200 francs.
8. How much money are you losing by being here?
My income isn't stable, so I can't estimate how much.
9. What do you estimate that your total costs will be by the time your case has been
resolved?
I haven't calculated. Maybe 1,800?
Are you satisfied with this amount in light of the service you expect to receive?
If yes, why?
Yes, I am satisfied, for he is treating me as he is supposed to.
If no, why not?
High Court waiting area Interview
12 August 2009
F2
108
Sex: Female
1. Who are you waiting to see?
The Senior State Counsel.
2. Why are you waiting to see them?
To help me take my money from debtors.
3. Why did you choose to come here?
Because he has the power and authority to command people to give justice.
4. How long have you been waiting to see them? Days, Hours?
Three days
5. Where have you come from?
Kumba
6. How long did it take to get here?
Okada ride for 30 minutes
7. What were your travel costs?
300 francs.
8. How much money are you losing by being here?
I am losing a lot. I should be working.
9. What do you estimate that your total costs will be by the time your case has been
resolved?
I don't know. 1000 fr?
Are you satisfied with this amount in light of the service you expect to receive?
If yes, why?
For me, it's ok. Depending on if he asks me for more.
If no, why not?
High Court waiting area Interview
12 August 2009
F3
Female, 38
1. Who are you waiting to see?
109
The Senior State Counsel
2. Why are you waiting to see them?
Land dispute
3. Why did you choose to come here?
Because I am sure of justice.
4. How long have you been waiting to see them? Days, hours?
3 years
5. Where have you come from?
Banga, Bakundu
6. How long did it take to get here?
45 minutes
7. What were your travel costs?
2000 Francs return
8. How much money are you losing by being here?
2500 Francs
9. What do you estimate that your total costs will be by the time your case has been
resolved?
Apx 200,000 Francs
Are you satisfied with this amount in light of the service you expect to
receive?
No
If yes, why?
If no, why not?
Because I can get more if I were at work.
110
Other comments?
High Court waiting area Interview
12 August 2009
F4
Female, 39
1. Who are you waiting to see?
The President of the High Court
2. Why are you waiting to see them?
Land dispute
3. Why did you choose to come here?
I was instructed to come
4. How long have you been waiting to see them? Days, hours?
I came yesterday but was sent away because I didn’t bring the correct paperwork. I
have been waiting here for four hours so far today and still have no idea when I
might be seen.
5. Where have you come from?
Bango Bako
6. How long did it take to get here?
1 hour
7. What were your travel costs?
1800 Francs return
8. How much money are you losing by being here?
I have lost two days so far which is roughly 5000 Francs
9. What do you estimate that your total costs will be by the time your case has been
resolved?
111
I don’t know
Are you satisfied with this amount in light of the service you expect to
receive?
n/a
If yes, why?
If no, why not?
Other comments?
I am deeply upset that I am here. I tried to settle the matter amicably, but failed. I
even tried to pay the man, but he refused to accept payment. He forces me to come
here as punishment. It is a waste of time, a waste of money. I have no quarrel with
anyone and I am not a thief.
High Court waiting area Interview
12 August 2009
F5
Female, 40
1. Who are you waiting to see?
The Senior State Counsel
2. Why are you waiting to see them?
Land dispute
3. Why did you choose to come here?
Because I think I’ll find the solution here.
4. How long have you been waiting to see them? Days, hours?
Hours
5. Where have you come from?
Makobe Village
112
6. How long did it take to get here?
3 hours
7. What were your travel costs?
4000 Francs return
8. How much money are you losing by being here?
5000 Francs
9. What do you estimate that your total costs will be by the time your case has been
resolved?
Apx 200,000 Francs
Are you satisfied with this amount in light of the service you expect to
receive?
Yes
If yes, why?
Because I will no longer spend time and money moving up and down
If no, why not?
Other comments?
High Court waiting area Interview
13 August 2009
M1
Sex: Male
1. Who are you waiting to see?
I wait for my friends and we will go see the Senior State Counsel.
2. Why are you waiting to see them?
I have a case with a criminal aspect, so I have to see him.
3. Why did you choose to come here?
113
4. How long have you been waiting to see them? Days, Hours?
Two weeks.
5. Where have you come from?
Ediki Mbonge
6. How long did it take to get here?
6 hours
7. What were your travel costs?
3,000 fr each way
8. How much money are you losing by being here?
Around 3,500 per day times 14 days
9. What do you estimate that your total costs will be by the time your case has been
resolved?
Probably about 25,000 francs.
Are you satisfied with this amount in light of the service you expect to receive?
Yes.
If yes, why?
I will win 160,000 if I claim my case.
If no, why not?
High Court waiting area Interview
12 August 2009
M2
Male, 22
1. Who are you waiting to see?
The Senior State Counsel
2. Why are you waiting to see them?
Land dispute
3. Why did you choose to come here?
114
Because I think that I’ll find an amicable solution to my problem.
4. How long have you been waiting to see them? Days, hours?
Hours
5. Where have you come from?
Banga, Bakudo, Longstreet
6. How long did it take to get here?
1 hour
7. What were your travel costs?
2000 Francs return
8. How much money are you losing by being here?
Apx 5000 Francs
9. What do you estimate that your total costs will be by the time your case has been
resolved?
Depends on the time limit but around 100,000 Francs
Are you satisfied with this amount in light of the service you expect to
receive?
Yes!
If yes, why?
Because I came seeking for a solution.
If no, why not?
Other comments?
High Court waiting area Interview
12 August 2009
115
M3
Male, 25
1. Who are you waiting to see?
The State Counsel
2. Why are you waiting to see them?
I was instructed by the State Counsel to come today. I have been accused of stealing
a motorbike
3. Why did you choose to come here?
I was instructed to come
4. How long have you been waiting to see them? Days, hours?
3 hours
5. Where have you come from?
Malende, Kumba
6. How long did it take to get here?
45 minutes
7. What were your travel costs?
1400 Francs
8. How much money are you losing by being here?
7000 Francs
9. What do you estimate that your total costs will be by the time your case has been
resolved?
I have been ordered to pay 150,000 Francs
Are you satisfied with this amount in light of the service you expect to
receive?
No
116
If yes, why?
If no, why not?
I did not steal his motorbike. I am not guilty and yet I am being sentenced. I have no
lawyer and there is to be no trial.
Other comments?
High Court waiting area Interview
12 August 2009
M4
Sex: Male
1. Who are you waiting to see?
The court of 1st Instance.
2. Why are you waiting to see them?
Defamation - I was accused.
3. Why did you choose to come here?
I was summoned by the court.
4. How long have you been waiting to see them? Days, Hours?
It took two weeks to have my case heard. We went from the police to the gendarmes
who sent us here to the court of 1st instance.
5. Where have you come from?
Bombeli village.
6. How long did it take to get here?
1 hour ride on okada or taxi.
7. What were your travel costs?
2,000 fr each way.
8. How much money are you losing by being here?
When we come here - we don't work, and one can spend 5,000 fr per day coming here.
9. What do you estimate that your total costs will be by the time your case has been
resolved?
117
Summarized with all the summons charges, warrant, and legal fees - the total I was
supposed to owe the court 281,000 francs. For the this amount of money the court asked
me to complain, which I did, and they reduced that sentence to 176,000 fr. Now I owe
the court this money, and I was supposed to be detained last Wednesday (8/12) for lack
of that money. The president of he High Court sent me home to look for it. Today I am
bringing my reply, I have some money to give.
Are you satisfied with this amount in light of the service you expect to receive?
I am clergy, so they told me if I am not satisfied I can revoke. They have given me
judgment, otherwise I will serve 6 months in prison.
If yes, why?
If no, why not?
High Court waiting area Interview
12 August 2009
M5
Male, 49
1. Who are you waiting to see?
The State Counsel
2. Why are you waiting to see them?
I have a problem with another family
3. Why did you choose to come here?
We have failed to solve the matter amicably
4. How long have you been waiting to see them? Days, hours?
I have been waiting for 4 hours but not for the State Counsel. He is ready for me. I
am waiting for the other family
5. Where have you come from?
Mato
6. How long did it take to get here?
3 hours because the roads are deplorable
118
7. What were your travel costs?
2000 Francs
8. How much money are you losing by being here?
5000 Francs
9. What do you estimate that your total costs will be by the time your case has been
resolved?
I don’t know. I have so far paid the convocation and nothing else. The formal court
system is totally foreign to me.
Are you satisfied with this amount in light of the service you expect to
receive?
Yes
If yes, why?
I expect to receive a fair judgement here
If no, why not?
Other comments?
I took the matter firstly to my traditional council however I was unsatisfied how
they handled it and so brought it here
High Court waiting area Interview
11 August 2009
M6
Male, 51
1. Who are you waiting to see?
The President of the High Court
2. Why are you waiting to see them?
I have a problem with a lady
119
3. Why did you choose to come here?
I was instructed to come
4. How long have you been waiting to see them? Days, hours?
2 hours
5. Where have you come from?
Hausa Quarters
6. How long did it take to get here?
10 minutes
7. What were your travel costs?
200 Francs
8. How much money are you losing by being here?
It’s hard to say. I’m a farmer and don’t have a set salary. The amount I earn on a
given day depends entirely on whether I have a good day or not.
9. What do you estimate that your total costs will be by the time your case has been
resolved?
This is my first time in the formal court system. I have no idea about the costs I will
accrue.
Are you satisfied with this amount in light of the service you expect to
receive?
n/a
If yes, why?
If no, why not?
Other comments?
This is my second visit to the court. I have no idea how long it will take for my
matter to be resolved.
120
Appendix D
Compiled Community Needs Assessment Graph from Kumba, Cameroon
June 26 2009
What are the major responsibilities of the
Council?
12%
Maintain Peace
12%
18%
Sanitation
58%
Security
Water
121
Appendix E
Compiled Community Needs Assessment Graph from Kumba, Cameroon
June 26 2009
What causes unequal treatment by the council?
Favoritism
38%
49%
Bribery
Tribalism
13%
122
Appendix F
Compiled Council Member Needs Assessment Graph from Kumba, Cameroon
June 26, 2009
Why would individuals decide not to bring problems
to the council?
9%
No faith
13%
39%
22%
17%
Pride/Show off
Fear of punishment
Disrespect
Don't know
123