The policy that will drive the establishment of proper linkages must be approached with an eye to what the purpose of preserving a legally pluralistic regime, distinguishing the motivations of many—colonists in the past, and political opportunists today—who have exploited pluralistic systems for their own self-interest. It is also necessary to recognize and preserve the virtues inherent in customary systems—systems historically undervalued as “primitive,” and still under attack by those who see them as threats to the protection of human rights.

There are no easy answers for how to correlate and link pluralistic adjudication in post-colonial African states, and Mozambique may present a particularly troublesome case. Although the precise mechanisms cannot be articulated with specificity, perhaps, the core underlying principles can. Those principles should respect traditional systems and values, affording them dignity as independent systems. To make them subservient to the state institutions, allowed to exist as long as they serve the state institutions on the state’s terms, would be nothing more than a repackaging and relabeling of tried-and-failed colonial approaches.

Instead, the pluralistic regime should operate on the principle of “maximizing” the role and impact of indigenous law, and giving equal dignity to the institutions that apply such law. This will require state courts to defer to community-based adjudication, even declining to exercise jurisdiction when the case can be appropriately resolved in the latter forum. It will grant concurrent jurisdiction wherever possible, supplementing it with consent jurisdiction for those who could not otherwise be subject to the authority of the traditional forum.

The most troubling aspects of traditional law, the oft-cited human rights violations, cannot be ignored. A mechanism can and must be developed for guarding against those, doing as little violence as possible to the autonomy and dignity of traditional fora. A system of collateral review—giving statutory courts limited jurisdiction to review a traditional forum’s decision for compliance with constitutional human rights standards—can serve that function. It is calculated to tamper with traditional dispute resolution systems as little as possible, and to respect the community forum as much as possible. Most importantly, it allows customary law to respond in its own way to the human rights requirements, not threatening customary law with restrictions, but strengthening customary law by fostering its legitimacy and relevance. Most importantly, it will allow the customary law, and its application, to remain solely the province of traditional authorities, where it can continue to function as a vital and highly adaptive foundation in rural society.

Operational solutions—for Mozambique as well as other pluralistic societies that face similar challenges—will require ongoing attention, but the central values of legal pluralism can be maintained as long as the implementation does not stray from these core principles: maximization of indigenous law, and equal dignity for the traditional forum.

At the same time, some of these underdeveloped and postconflict societies have highly functional customary law institutions (in Africa, e.g., a tribal chief applying a customary law handed down by oral tradition). These systems enjoy public confidence and function on very limited budgets—often providing prompt and accessible dispute resolution in the community. Unfortunately these indigenous systems do not always adhere to minimum standards of justice and human rights.

In response, Rule of Law reformers in such communities are now working to codify customary law, and/or create rights of appeal from the customary courts. These misguided efforts serve only to deprive the tribal communities of ownership of and control over their law. The reformers have failed to learn the lessons of colonialism, and threaten to perpetrate a new imperialism.

Instead, customary adjudication should be subject only to collateral review. Statutory courts should defer fully to customary law adjudicators on the principles and application of customary law, and review their decisions only for compliance with minimum standards of justice and human rights (ideally those recognized in the local constitution and international human rights instruments the country has ratified).

Collateral review dignifies customary adjudication by respecting the customary courts’ determinations of law, while providing a safety net for those whose fundamental rights may be violated in customary court process. This approach eschews the cultural imperialism inherent in so many rule of law reforms, relying on the more appropriate, and ultimately more effective, indigenous systems to build the rule of law in a way that the local populations will recognize, respect and, hopefully, embrace.

The principles established and lessons learned in the Bosnian court restructuring may be applicable in a wide variety of court reform contexts, foreign and domestic, whether in terms of the substantive criteria used to justify a court’s existence or closure, or in terms of the approach taken to accommodate political sensitivities. And with the publication of this Report, it should never again be necessary – on questions of the number, size and location of courts, system-wide – to work from a blank slate.