stability
M’Cormack, F. 2018. Prospects for Accessing Justice
for Sexual Violence in Liberia’s Hybrid System. Stability:
International Journal of Security & Development,
7(1): 10, pp. 1–16, DOI: https://doi.org/10.5334/sta.603
RESEARCH ARTICLE
Prospects for Accessing Justice for Sexual
Violence in Liberia’s Hybrid System
Freida M’Cormack
This paper explores the prospects of complementary rather than competitive
dispute resolution and justice systems in Liberia. It specifically considers women’s
access to justice in relation to sexual and gender-based violence (SGBV), which
remains prevalent in the post-conflict period, and in the context of a highly hybridised justice system. While the formal system has made great progress in reforming laws and institutions but is vastly under-resourced. Informal and traditional
systems are widely considered more accessible and affordable. They are, however,
also susceptible to corruption and co-option, and the state’s oversight and curtailing of specific conflict resolution and punishment practices is considered to have
rendered these systems less effective. Significantly, some cultural and traditional
practices are themselves considered to facilitate and promote SGBV. These factors
make complementary systems an imperative while working to address the deficiencies of both systems.
Introduction
In post-conflict Liberia robust laws and policies have been introduced promoting gender
equality, partly in response to the extensive
violence women endured during the country’s thirteen-year conflict. This trend is juxtaposed, however, by widespread perception
that Liberia’s legislative, law enforcement
and judicial systems do not operate in the
interest of the majority of the population,
which has consolidated or even increased
reliance on informal and traditional justice
mechanisms (Isser, Lubkemann, and N’Tow
2009; Flomoku and Reeves 2012).
This paper examines the challenges and
opportunities presented by Liberia’s hybrid
justice system in relation to addressing
Institute of Development Studies, GB
ibiduni@hotmail.com
sexual and gender-based violence (SGBV)
(Alexander-Scott, Bell, and Holden 2016). In
this context, our notion of hybridity is one
in which both formal and traditional or customary institutions are evident but the lines
between these are blurred. The concern here
is how norms, solidarities and networks in
the non-formal sector become embedded in
official security, policing and justice institutions (Bagayoko, Hutchful, and Luckham
2016), and how justice is or is not served in
this in-between. The paper specifically seeks
to answer the question: In the context of
Liberia’s hybrid security and justice system,
what are the prospects for complementary
rather than competitive provision of justice
for victims of SGBV?
In addition, the fieldwork explored two
key issues arising from the central question: ‘how to draw upon informal social
solidarities in order to build more effective
Art. 10, page 2 of 16
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
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and responsive state security institutions—
without them becoming too enmeshed in
dysfunctional patronage networks [and] how
to maximise the ability of state security institutions to ‘work with the grain’ of traditional
and other informal institutions so as to make
their security policies and programmes more
effective and legitimate on the ground—without reinforcing local oppressions or unleashing destructive power struggles’ (Bagayoko,
Hutchful, and Luckham 2016: 5).
These questions were explored through
periodic fieldwork in Liberia between June
2015 and October 2016. The research methodology included structured and unstructured interviews and participant observation,
including of the development of the 2015–
2020 UN Joint Programme on SGBV, and
several traditional elders’ and rural women
leaders’ meetings; and process mapping
of the progress of various draft legislations
and mechanisms related to gender, including the Domestic Violence Bill. Stakeholder
interviews were undertaken with a range
of individuals, based on their experience of
(working in), and supporting the activities
of formal and traditional justice systems.
This included police officers; members of
the judiciary; government ministry officials;
traditional authorities, including chiefs and
elders; members of civilian policing mechanisms; national and local women’s civil
society group representatives; local and international NGO staff; and UN staff. Interviews
with headquarters’ policy actors took place
in Monrovia, with additional fieldwork
undertaken in four counties, Lofa, Nimba,
Bong and Bomi where, with the support of
four research assistants, individual interviews were carried out with 168 individuals
in eight communities and three focus group
discussions held with a cross-section of local
government, law enforcement, women’s
leaders, civil society, elders, chiefs, community youth and some SGBV survivors.
The following discussion demonstrates
that in the Liberian context formal and customary can be complementary, but in order
to do this in a way that promotes, rather than
impinges on the rights of vulnerable groups
such as women and girls subject to SGBV, a
range of issues must be addressed, including
increasing awareness-raising on the respective roles and responsibilities of each sector;
promoting the customary and traditional
sectors’ roles in mediating non-criminal family issues that are not catered for in the formal sector; providing inclusive community
education on women’s and men’s rights and
mechanisms for tackling SGBV; and increasing opportunities for engagement and collaboration between law enforcement officials
and traditional authorities, among others.
The next section summarises some of the
empirical literature on hybrid security and
justice and SGBV in Liberia, upon which
this article builds. It highlights the historically subordinate position of women, which
impinges on their access to justice in both
the formal and informal spheres. This provides the backdrop for section 3, which maps
out the on-the-ground reality of hybrid security and justice in Liberia as it relates to SGBV,
based on the fieldwork. Section 4 then discusses the relative strengths and weaknesses
of the formal and informal systems, based on
interviews and focus group discussions, the
findings of which are broadly in keeping with
the literature. This is followed by a section
on the increasing influence of other informal
actors, namely the international community,
in promoting and even directing hybridity
within the framework of alternative dispute
resolution (ADR) mechanisms, a key finding
from the research. Section 6 concludes the
article with a discussion of the prospects for
a complementary hybrid security and justice
system that benefits women and girls, given
both these relative strengths and weaknesses
and the intractability of the systems from
one another. It also suggests recommendations for the way forward.
Hybridity, gender and SGBV:
The literature
Hybridism in Liberia
Most, if not all, modern African states have
pluralistic justice and security systems,
shaped by colonial intervention and postcolonial compromise. As such, Liberia is not
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
unique. Its peculiar history, however, stemming from Americo-Liberian colonisation
and settlement,1 has resulted in a three-fold
system, of a formal justice system, modelled on that of the USA, a customary legal
system mostly worked through Chiefs (or
customary) courts, ‘created by regulation and
statute’ and a ‘traditional’ indigenous system’ (USIP 2008).
The embedding of the customary legal
system within the formal has been apparent
since Liberia’s founding in 1847. In 1869, the
Liberian Legislature established the Interior
Department (today’s Ministry of Internal
Affairs, or MIA), as an agency of the Executive.
Among the department’s duties were ‘to settle matters purely native, consistent with
native customary law and native institutions
[and] formulate regulations for the smooth
administration of the natives’ (USIP 2008:
12), provided those laws were not repugnant
to the Liberian constitution. This mandating
of a constituent body of the Executive to hold
judicial hearings and make judicial decisions
so long as it involved the ‘natives’ and did not
infringe upon the constitution perpetrated a
truly hybrid legal system, even as the formal
system remained solely the purview of the
judiciary ( USIP 2008: 12).
While these developments related mostly
to the evolution of the customary legal system, closely related to this is the traditional
or indigenous justice sector. This comprises
‘a broad range of actors who have no legally
or socially recognized roles in formal, statebacked customary, or even community-based
customary justice institutions [who] become
involved in, and are perceived to be able and
likely to influence, the resolution of cases
ranging from the most trivial to the most
serious’ (Isser et al. 2009: 23–25). Such actors
include village elders, who advise and regulate
the town chief’s decisions, as well as family
heads, women leaders, youth leaders, secret
society leaders, religious leaders (mostly pastors and imams), and heads of social institutions (savings clubs, markets, unions, etc.).
Within this group ‘Poro’ (male) and ‘Sande’
(female) secret society leaders (Zoes) are particularly influential for maintaining law and
Art. 10, page 3 of 16
order (Leeson and Coyne 2012). Sande is a
politically influential women’s association
originally found within the Mende-speaking
peoples of Liberia, Sierra Leone and Guinea
that initiates girls into womanhood through
the Sande (Bush) School, ‘confers fertility,
instils notions of morality and maintains
an interest in the well-being of its members
throughout their lives’ (Ministry of Gender
and Development 2011: 3). In addition,
Sande champions women’s social and political interests and promotes their solidarity.
The majority of Liberia’s ethnic groups initiate girls into Sande (Ministry of Gender and
Development 2011).
While differences in the dispensation of
both customary legal and traditional justice
abound between Liberia’s 15 main ethnic
groups, three common threads that straddle both may be identified: palava hut, kola
nut and sassywood (Pajibo 2008: 16–23).
They are applied to a range of civil and criminal cases and are important for gendered
conflicts, including SGBV. For instance, the
palava hut process, which is of near universal
importance in the Liberian context, is typically convened by elders and aims to settle
a range of disputes, including extramarital
affairs, divorce cases, land disputes and debt
(including non-support of children) (Pajibo
2008; UN Women 2012). Kola nut is mostly
employed in breaches of the civil law, including adultery, in which case a form of a ‘fine’,
known locally as ‘damage’, is paid. For example, if a man complains that his wife has
cheated on him and wants redress from the
assumed lover, the local leaders, chiefs and
elders are convened. If the accused party is
deemed guilty, he is made to pay restitution,
in the form of cash or some other item, such
as a chicken or goat, to the aggrieved husband. Sassywood is a ‘trial by ordeal’ system
fundamentally based on supernatural beliefs
and takes a variety of forms from objectively
harmless to deadly. In its mildest version, suspects may be asked to perform an everyday
act, such as picking up a light object from
the ground, which they will not be able to
do if they are guilty. More dangerous forms
include compelling the accused person to
Art. 10, page 4 of 16
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drink poisonous beverages, come in contact with heated metal, or put their hands
in fire or hot oil – acts that are expected to
have no impact on them if they are innocent. Sometimes people, invariably women,
subjected to sassywood are accused of witchcraft, subjecting them to severe trials even
unto death (Pajibo 2008; Rawls 2011; Leeson
and Coyne 2012). Sassywood has been outlawed by the Liberian Government but still is
administered clandestinely.
Both the palava hut and kola nut mechanisms are primarily the domain of men
(Pajibo 2008; UN Women 2012). This has
significant implications for how rape and
other forms of sexual violence is dealt with.
For instance, despite being recognised in
the statutory system as a serious criminal
justice issue, rape, in traditional contexts,
is often ‘talked through’ in ‘Palava Hut’ settings with (cash or kind) settlements made
between families and is considered more of a
social than a criminal problem. It can include
female elders and clan chiefs and resolution
through provision of goods in kind (manual
labour or food), monetary payment or nothing at all (Dunne 2011; Flomoku and Reeves,
2012). Such traditional practices could, however, be considered as mechanisms to control
and manage women, and serve to subvert
their agency and autonomy on a daily basis.
In these contexts, therefore, it is critical to
understand how societal and cultural factors, which are mostly mediated by customary and traditional governance mechanisms,
affect the landscape. This is considered in
further detail in the next sub-section.
Sexual Violence in Liberia
SGBV represents a critical entry point into
a study on hybrid security and justice in
Liberia for several reasons. First among these
is the high prevalence of SGBV in Liberia,
which was first documented during the conflict, the second phase of which coincided
with the passage of UN Security Council
Resolution 1325 (2000) on women, peace
and security. In a 2005 WHO study, 77.4 per
cent of respondents reported that they had
experienced rape during the conflict. The
study further cited an IRC study, which estimated that two-thirds of women were subjected to violence (including sexual assault,
mass rape, sexual slavery and exploitation)
during displacement.
Despite sustained post-conflict engagement by national and international actors to
develop and implement measures to protect
women and girls from gender-based violence
(such as the National Action Plan on resolution 1325 (Luppino and Webbe 2011)), prevalence remains high, but persecution and
conviction rates remain low. According to
OHCHR and UNMIL (2016), rape is the second most commonly reported serious crime
in Liberia with 708 cases reported to a variety
of officials in 2014, rising to 803 in 2015. Yet
only about half of these cases were registered
by the police, and just over a quarter sent to
court. According to UNMIL data in 2014 only
24 individuals were convicted while the figure barely rose, to 34, the following year.
SGBV is considered to be grossly underreported but despite this and low conviction
rates, SGBV cases still account for nearly a
quarter of Liberia’s nationwide prison population – 23 per cent of 2,066, compared
to 22 per cent for armed robbery (UNMIL
2015). According to the MOGCSP GenderBased Violence Annual Statistical Report of
2015 various factors are responsible for the
low trial and conviction rates including ‘legal
and institutional weaknesses, social mores
and attitudes, corruption, lack of will or diligence on the part of Government officials,
and logistical constraints.’ The report further notes that ‘These combined factors have
led to a widespread culture of impunity for
SGBV, particularly for rape, putting women
and children at continued serious risk of sexual violence’ (OHCHR and UNMIL, 2016: 4).
The impact of community perceptions,
especially men’s attitudes towards women
and girls, was highlighted in the research
undertaken for this study. Respondents
pointed to this as the main issue dictating women’s lack of access to justice across
sectors, noting variously that ‘women are
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
considered as slave for men’; ‘women are
considered the property of men’; and ‘men
have no respect for women. An SGBV survivor summarised this problematic succinctly,
noting ‘justice is based on culture which
considers women to be men’s property.’2
Another noted that cultural practices sanctioned men’s abuse of women as a way of
showing love (i.e. ‘if a man doesn’t beat you
he doesn’t love you’). As such there is little
expectation that perpetrators will face serious consequences, despite the criminalisation of rape (GoL/UNCT 2015). Thus, even
for a woman to ‘carry a case’ to the police,
she would have to ask her husband.
In addition to rape,3 other forms of SGBV are
also pervasive in Liberia. This includes female
genital cutting/mutilation (FGC/M), domestic abuse and, for males, abduction and forcible initiation into secret societies, which are
equally underreported and under-addressed.
Further, some of these examples are forms of
violence that emanate directly from cultural
and traditional practices (UNMIL 2015).
In Liberia, much of the population is
largely governed by traditional authority
and social relationships. Thus, community
perceptions, especially men’s perceptions
of women and girls, contribute to the pervasiveness of SGBV, with traditional power
structures and beliefs enabling SGBV. As an
UNMIL Gender Officer put it, ‘the traditional
justice system does not favour women and
girls’.4 Perpetrators are often known to communities, sometimes they are even community leaders, and/or financially stable and,
through corruption, are able to pervert the
course of justice. The traditional justice system intended to dispense justice to the community instead serves to prevent women
and girls from that justice and instead leads
to the ‘prevalence of compromise’, as a consultant for the Ministry of Internal Affairs
observed, especially when survivors and their
families are fearful of social stigmatisation.5
A lack of economic opportunity, stemming from limited access to education and
information about the availability of services combined with ‘cultural’ factors makes
Art. 10, page 5 of 16
girls and women more vulnerable to abuse.
Further, the majority of respondents (74.3
per cent) in community dialogues during
consultations for a new UN Joint Programme
on SGBV cited poverty as a key driver, noting
it was especially prevalent in areas of high
economic activity which served as pull factor areas for sexual exploitation and abuse
(Government of Liberia and UN Country
Team 2015).
In December 2005 a ‘Rape Law’ made rape
illegal for the first time in Liberia. It forbids bail and carries a maximum sentence
of life imprisonment. Other related legislation includes the Children’s Act, which was
passed in 2011, and prohibits FGM/C, all
forms of violence and harmful practices
against children (defined as under the age
of 18). A draft Domestic Violence Act is with
the Legislature, and defines domestic violence as: ‘any act of violence that results in,
or is likely to result in, physical, sexual or
psychological harm or suffering to a woman,
man, or child, including threats of such acts,
coercion or arbitrary deprivation of liberty,
whether occurring in public or in private
life between parties in an existing or former
domestic relationship’. Reforms to the justice
sector include the establishment of Criminal
Court E in 2008, specifically for adjudicating
SGBV cases, in order to create a speedy trial
for rape and other sexual offences. Court E is
based in Monrovia, but circuit courts in the
counties also have jurisdiction over capital
offenses, including SGBV. Criminal Court E is
presided over by one female judge (although
provisions for a second were made in 2016).
The Sexual and Gender Based Violent Crimes
Unit was established in 2009, with funding
from the UN Peacebuilding Fund, based in
the Ministry of Justice to provide rapid investigative and prosecutorial response to complaints of rape, gang rape, sexual assaults,
sexual abuse, sexual exploitation and incest
particularly those committed against children. Alongside legislative and judicial
reform has been police reform, including
the establishment of various structures, particularly the Women and Children Protection
Art. 10, page 6 of 16
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
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Section (WACPS), the Gender Affairs Section,
the Community Policing Section (CPS) and
the Professional Standards Division (PSD)
(Bowah and Salahub 2011). In terms of
achieving gender justice in a context of parallel and overlapping informal and formal
systems two opposing views dominate. The
first asserts that the formal system presents
the best chance for achieving justice, the
strengths of which include the formal justice system’s ability (at least in theory) to set
the same standard for all citizens, ensuring
equal justice to all under the law, maintaining order and upholding principles, such as
human rights standards, without prejudice.
Indeed, much of the legislative and policy
reform outlined above is in line with this
approach. At the other end of the spectrum
are arguments that ‘gender justice… is not
alien to customary law as it is practised in
many communities across Africa’ (Ozoemena
and Hansungule 2009: 1–2). Proponents
further note that change from within as
opposed to externally imposed is likely to
be more acceptable to rural citizens particularly. They further query whether legislation
is appropriate for regulating social relations,
particularly in a customary law system where
distinctive forms of traditional practices,
such as public insults or witchcraft exist, and
where traditional systems govern the majority of people’s lives in reality (Ozoemena and
Hansungule 2009).
Other researchers advocate a more middle
ground approach. For instance, Clark and
Stephens (2011), tapping into the notion of
hybridity, posit that both state and local customary institutions are capable of delivering
justice. They note that it is evident that formal justice systems and customary systems
neither exclusively focus on only one model
of justice nor suffice as a single means for the
achievement of justice. They further argue
that in the contemporary reality of most
developing countries, no one system – state
or non-state – can deliver justice. Instead of
idealising one system over another, a more
realistic strategy is to focus on overcoming the specific injustices of both state and
non-state systems. Other researchers such
as Chopra and Isser (2011; 2012) point to
the importance of promoting social change
a precursor for addressing inequality, especially as gender inequality is a function of
the underlying socio-economic, cultural
and political context. The conclusions arising from the research and discussion below
are couched within these latter framings.
Against this backdrop, the next section maps
the hybridity of the justice and security sector as it relates to SGBV, based on fieldwork.
Mapping Formal-Customary-Informal
Relationships
As section 2.1 discussed customary mechanisms, rather than an alternative to the state,
may be considered as the avenue through
which the state is able to manage its population effectively. In fact, the state has devised
a range of structures, regulations and guidelines to manage the relationship between
itself and traditional justice systems. In the
first instance the research sought to get to
grips with how this relationship plays out
in relation to addressing SGBV. The interlinkages, which work both in favour of and
against survivors and victims, were highlighted time and again in interviews, and are
demonstrated pictorially in Figure 1 below.
There are several issues to note in relation to
Figure 1. This includes there are seeming overlaps in and confusion over the relative roles and
responsibilities of the formal and traditional/
customary sectors, without clear delineation or
sufficient information about the limitations of
each. During interviews and focus group discussions traditional authorities and their constituents expressed that they had a significant
role to play, even in capital offenses such as
rape or even murder (for instance in the context of ritual killing and witchcraft, especially
as the formal system claimed no jurisdiction
regarding the latter). They were concerned that
areas they were not allowed to engage with
were going unaddressed.6
There was also some confusion about
roles and responsibilities within the formal
sector; for instance, the investigative role of
the police relative to the prosecutorial court
system in bringing perpetrators to justice.
Art. 10, page 7 of 16
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
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National Formal System
Policy Actors
Ministry of Justice
Ministry of
Internal Affairs
County
Administration
Traditional and Customary
Systems
Ministry of Health
Other “Informal” System
Security Actors
Justice Actors
National Level County Level
Ministry of
SGBV &
Gender
Gender Taskforce
Key:
Judiciary
- SGBV Crimes Unit
Liberia National Police
- Women and Child
Protection Service
(WAPCS)
Criminal Court E
+ Circuit Courts
-
One-stop health
centres
Customary Courts
-
Palava Hut
Clan, Town, Section and
Paramount Chiefs
-
Kola Nut
-
Trial by Ordeal
-
Community
forums
-
Peace Huts
-
Palava Hut
-
ADR
‘Citizens’ arrest’
‘Country Devil’
Safe Houses
Indirect oversight or
collaborative
relationship
Having direct
responsibility for, or
oversight over
District & County Security
Councils/
Joint Security Task Forces
Traditional and
Community Elders
Section and Paramount
Chiefs
Mechanisms
Male + Female Secret
Society Leaders
Male and Female
Community Elders
United Nations (UNWomen, UNMIL, UNDP,
UNFPA…)
Civil Society:
e.g. WIPNET,
MARWOPNET,
WONGOSOL
Community Watch Forum
(Community Policing)
Donors, e.g. PBF, USAID
SGBV Taskforce
Association of Female
Lawyers in Liberia
Roadmap for National
Reconciliation Steering
Group
NGOs:
e.g. Carter Center
ActionAid, SEARCH
Figure 1: Mapping formal, customary, traditional and informal actors in SGBV prevention.
The following quote from a female WACPS
police officer interviewed demonstrates this
clearly: ‘women should come to us [i.e. the
police] to help seek justice not the court
because the court is expensive and cannot
give justice.’7 She further noted that only if
she could not handle a [rape] case would she
refer it to court.
Also, while most respondents were aware
of the formal system’s jurisdiction over rape
and threat-to-life issues, this was not universal and other issues, such as domestic
violence – determined to be a ‘family problem’ – were not considered relevant to the
formal sector.8 Even formal sector actors
such as public defenders and gender ministry staff recognised that such issues were
unlikely to be taken to the formal court
system, the pending domestic violence bill
notwithstanding. This was especially the case
if the violence was within a traditional marriage setting, which interviewees considered
should be handled by the traditional system.9
Related to this was the concern with a
range of other issues that are further considered by communities as SGBV cases (even
though they are not considered as such in the
conventional sense), including barrenness,
non-maintenance/lack of child support,
abandonment and adultery, which for the
most part are not formally legislated against
and as such find a natural home in the informal sector. This muddies the water because
while Liberian communities and their policymakers widely concur that issues such as
rape should remain the purview of the formal system, the familial/relational context
is considered paramount, and it is likely that
communities will continue to prefer to settle
such ‘family’ issues using traditional mechanisms, which prioritise restorative justice, or
as one respondent put it, ‘make sure people
are friendly again’.10
Further, with regard to seeking care and
justice for survivors there is an inter-connected community and legal referral pathway that includes family members, female
elders/leaders, Sande society and other
women’s group leaders, chiefs, hospitals,
SGBV coordinators, NGOs, health centres
and hospitals, police WACPS, safe homes
and the judicial system. Interviews with
Gender ministry staff uniformly highlighted
their collaboration with Sande and other
women’s groups in addressing cases and
did not consider this to be problematic.11
Art. 10, page 8 of 16
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This corresponds to Dunne (2011), who
elaborates on a parallel community referral pathway including female elders, chiefs
and so on. In interviews it was also apparent
that respondents did not see it as problematic to move back and forth between the
different systems in an effort to get more
swift and/or appropriate support and justice. While this more nebulous pathway is
potentially positive, in that it provides multiple opportunities for support, recourse
and redress, it also results in some confusion as to what the actual pathway was, and
provides greater incentive to settle matters
‘in-house’, especially as people may give up
trying to get cases to court because of the
seemingly numerous steps involved.
The process mapping further highlighted
the increasing importance of the national
and international development sector,
which in Figure 1 I have labelled the ‘informal’ sector, a catch-all for actors not in the
previous three categories, ranging from
national civil society and non-governmental
organisations to international donors and
organisations which, as noted above, have
been significantly pushing ADR mechanisms. They variously engage with the
highest levels of government to the lowest
grassroots level, and their relatively greater
resources ensure that their influence on
policy and programming is felt throughout
the hybrid system and is discussed further
in Section 5.
Several factors were cited as facilitating
the interlinkages highlighted above. Most of
these – such as bad road networks outside of
county capitals (and even within), which often
made it difficult for survivors and victims’
families to maintain the effort of seeking formal justice, turning instead to more proximate dispute resolution mechanisms – relate
to the relative strengths and weaknesses of
the traditional and formal sectors, to which
we now turn. Though functionally separate,
it should be noted that given their overlaps,
customary and traditional security orders are
often considered together for analysis and
discussion purposes.
Formal vs. Traditional: Strengths
and Limitations in Providing Access
to Justice for SGBV
This section delves further into the relative
strengths and weaknesses of the formal,
customary legal and traditional sectors in
addressing SGBV. These findings are based
on interviews and focus group discussions
and broadly confirmed in the literature.
Formal System
Among formal, traditional and informal sector respondents both in the capital Monrovia
and rural areas, a common perception is that
the formal system presents the best chance
for achieving justice, the strengths of which
include the formal justice system’s ability (at
least in theory) to set the same standard for all
citizens, ensuring equal justice for all under
the law, maintaining order and upholding
universal principles, such as human rights,
without prejudice. Formal sector respondents such as the police and public defenders
asserted that the formal system provided an
opportunity for ‘fair justice’ and ‘appropriate
punishment’, in direct contrast to the traditional sector in which compromise was common.12 In this context, ‘compromise’ must be
understood as settling a case in a manner
that is (or appears) more favourable to the
guilty party than the aggrieved.
Despite this, interview respondents identified numerous shortcomings and constraints related to the formal sector. Primarily
interviewees in urban areas reported that the
laudable legal developments outlined in section 2 have not been effectively implemented,
and are constrained by funding, capacity and
government will.13 For instance, although
Criminal Court E is dedicated to prosecuting SGBV crimes, it is also slow, until recently
only having one sitting judge. As mentioned
above, the Circuit courts in the counties are
also designated to try SGBV cases; however,
they only sit four times a year, sometimes not
completing a single case in a 43-day sitting,
resulting in an excessive backlog.14
Further, the Government’s budget to
address SGBV related crimes is low, with
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
up to 80 per cent of funding provided by
donors.15 While it constitutes a significant
issue for the Ministries of Gender and Justice,
there are numerous other competing priorities and the same cannot be said for other
Ministries – this lends to the perception
nationally that this is not an important issue.
An additional problem is that the current
system of administration and governance is
overly centralised, with inputs and service
delivery at county, district and local levels
relying on the centre. The decentralisation
process in Liberia is on-going but slow. All of
these issues are exacerbated by poor technical and administrative capacity at all levels.
Another major disadvantage of the formal system relates to its inaccessibility.
Respondents were asked what they considered to be the main obstacles preventing
women’s access to justice in the formal system. Almost uniformly they cited distance,
lack of communications and limited transport.16 Again this corresponded with other
research. A USIP (2008) study, among others (e.g. UNMIL 2012) found that there is
widespread dissatisfaction with the formal
courts over inaccessibility. Courts are often
far from where people live, court dates are
frequently postponed, ensuring cases are
prosecuted often requires money, and legal
aid is limited. The issue of transportation and
access is exacerbated by the physical distance
between communities and law enforcement
stations, which are sometimes located many
days’ journey from communities. In addition
to distance the terrain is unforgiving, and
locals are not trusting of law enforcement
officers, particularly those from far away.
As a result, engaging with the formal
sector is also costly: access to rule of law is
regarded a prerogative of those with financial resources due to law enforcement’s reliance on the public to provide the money
needed to transport police officers to enable
them to conduct investigations, as well as
transporting themselves to court sessions.
Interviewees noted that generally to file a
case a complainant needed about LD400
(about US$4) and a further LD$1000 (US$10)
Art. 10, page 9 of 16
to transport police to investigate the case,
although neither of these figures are formal
charges. In summary, as a female WACPS
Officer put it, ‘If a woman does not have
money she cannot access justice’.17
This issue is also related to corruption.
Interviewees across the board acknowledged
this as a significant constraint, alongside
the seeming impunity afforded to perpetrators.18 These findings correspond with other
research. For instance, during national consultations on justice mechanisms, participants identified corruption in the formal
legal system as a primary obstacle to justice,
focusing on the lack of transparency in the
fees charged to litigants, as much as on the
ability of wealthier or more powerful parties
to influence the judge (Rawls 2011).
A related issue highlighted in interviews
and focus group discussions is the perception among communities that the formal
system is unjust because it advocates for perpetrators.19 This perception relates to the fact
that in the judicial system, someone who is
patently guilty still has an advocate, in many
cases the Public Defender. This legal practice
does not make sense to citizens, particularly
as perpetrators often go free after spending
a limited time in jail. (This could be for reasons that follow rule of law – for instance
lack of evidence, pre-trial detention limits
being exceeded, etc. but from survivors’ and
communities’ perspectives this is further evidence of the laxity of the formal system).
Even when survivors and their families
report cases, they can take such a long time
to get to trial that they give up eventually. As
a senior UN Women staff member put it, the
process is ‘complicated and tiresome and frustrates women’.20 Dunne (2011: 16) identified
27 different steps to get through in Liberia’s
judicial system before a perpetrator may be
convicted. The Ministry of Gender’s official
referral pathway includes: hospital, police,
counsellor, and court. While this works
somewhat in urban areas, where information and services are available, following the
pathway proves extremely difficult in rural
areas, not least because supporting services
Art. 10, page 10 of 16
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
are limited. Further, testing kits, mechanisms
for preserving evidence, counselling and victim support services, etc. are inadequate in
most cases. Safe houses exist to house survivors and support them through the court
process but they face several constraints. For
example, safe houses are almost exclusively
donor-funded, thus once a funding period
ends, funding may not be renewed.
These constraints have created an overall perception among citizens that there
are few, if any, mechanisms for successfully
accessing formal justice. While respondents
overall acknowledged the primacy of the
formal sector as the arena for seeking justice, given these limitations they considered
customary and traditional mechanisms to be
faster, and more affordable and accessible.21
This was in keeping with a 2008 survey by
Oxford University, which found that rural
Liberians took only four per cent of criminal
cases and three per cent of civil cases to the
formal courts.
This has great implications for women’s
access to justice, particularly given the complex gendered relationships within these
systems. While the preference is relative to
the limitations of the formal sector, it is also
couched in the reality of a hybridised system
that means many aspects of Liberian citizens’
everyday lives are governed by the customary sector. These aspects are discussed in the
next section, which also elaborates on the
limitations of this sector.
Customary Legal and Traditional Systems
Given the various limitations of the formal sector outlined above, interviewees, especially
in rural areas cited a preference for customary justice as it was less costly (usually free),
and more accessible being more proximate
than formal services to the majority of the
population. They further pointed to its userfriendly nature. Also, respondents considered
that in contrast to the formal system, Chiefs,
elders and spiritual leaders in the customary
legal and traditional sectors resolve disputes
based on widely accepted cultural paradigms, focusing on restorative justice and
social reconciliation.22 These perspectives
were broadly confirmed as advantages, with
respondents noting further that they maintained family relations, and were guided
by (and maintained respect for) traditional
law, norms and customs. Again, these findings were much in keeping with prevailing
research (Flomoku and Reeves 2012; Hawes
et al 2013).
Given the policy and legislative reforms of
recent years, the majority of women interviewees were of the view that at least in
theory the formal system should offer the
greatest opportunity for justice but agreed
that in the traditional system community
relations were maintained and some justice
was served. However, their views were more
nuanced as they noted that they also appreciated the sector as the imposition of fines in
the customary system meant that survivors
and their families could get some compensation for the crime.23 In contrast, the formal
system only offers imprisonment as a form of
punishment, but more often than not alleged
perpetrators were released without serving a
sentence (i.e. prior to conviction), especially
if their pre-trial detention exceeded legal
limits. Also, the traditional system is considered to better address a range of cases that
communities consider to be SGBV, including wife abandonment and persistent nonsupport, including of children, as well as a
range of social disputes formal courts do not
consider, such as public insults and witchcraft. While this may relate to communities’ understanding of what SGBV means it
is important to note that these were cited in
direct response to requests for examples of
SGBV in their communities.
These observations by no means indicate
that the customary/traditional system is universally preferred. As mentioned in the introduction, a rape may traditionally be talked
through in a palava hut setting because it
is seen as a problem between families and
it is for the perpetrator and his family to
make the victim and her family whole again;
this can include payment, or sometimes
even marrying the victim. Early marriage,
offensive touching, wife beating, rape and
incest are also ‘treated as private, and mostly
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
handled the family way’ (GoL/UNCT 2015:
3–4), which leads to the ‘prevalence of compromise’, as a consultant for the MIA noted,24
especially when survivors and their families
are fearful of social stigmatisation. This led
numerous interviewees to assert that ‘traditional practices are not fair’, and result in
‘unfair justice for women’.25
Some of these assertions relate to the
state’s co-option and corruption of traditional justice processes. Women respondents
particularly, noted that some of the negative
features affecting accessing justice in the
formal system also affected the traditional
system, especially their corruption when
the alleged perpetrator was a ‘big person’ in
the community, or had the funds to influence the outcome.26 UNMIL (2012), Isser
et al (2009) and Pajibo (2008) further note
that selecting local leaders (especially paramount and town chiefs) on a nepotistic basis
has resulted in the appointment of chiefs
with ‘limited knowledge and training in
the customs of the people over whom they
have judicial supervision’ (UNMIL 2012: 27).
Additionally, differing (unclear) processes
e.g. verbal or written summons, recordskeeping, and lack of infrastructure all add
to this complex picture. Customary courts
are also acutely understaffed. This is exacerbated by a lack of resources, resulting in their
charging litigants burdensome fees to defray
the courts’ operating costs (UNMIL 2012).
While some chiefs are on the government’s
(i.e. MIA’s) payroll, this is not universally the
case, and some have to use their own money
to ensure that tribal courts sit. This can make
them susceptible to bribery.
The formal system is also considered to
have eroded the authority of the customary justice system. State policies and practice, such as the outlawing of Sassywood,
are considered to have weakened the traditional system and undermined the ability of
chiefs and elders to resolve local disputes.
During a stakeholder focus group discussion
in Nimba, participants cited a case where a
six-month old baby was raped and ultimately
died. The perpetrator was apprehended by
the community and ‘foot-cuffed’ in a room
Art. 10, page 11 of 16
for four days while the police were summoned. However, given the distance from
the village from the nearest town, and the
road condition, it took four days for the
police to arrive and even though he was
arrested the case was ultimately compromised. Traditional leaders lamented that
the most they could do was apprehend the
suspect, who once turned over the police
would likely be released in a few days, which
serves as no deterrent, whereas in days gone
by they would have been able to mete out
more appropriate punishment, including
‘jebekutu’, where a perpetrator is taken to
the ‘bush’ and dealt with appropriately (e.g.
beaten and tied to a tree for days subjected
to the elements).27 Isser et al (2009) further
report chiefs being embarrassed by the limitations on their roles and also that as a result
of these limitations, people perceive justice
is less likely because the formal system has
yet to provide a viable alternative.
The preceding highlights that in a hybrid
security governance context, such as
Liberia, addressing SGBV can be particularly challenging, especially where recourse
to the formal system is problematic, yet
(male-dominated) ‘traditional’ structures and
mechanisms that are being engaged are the
same that perpetrate, or appear to condone
the perpetration of, violence against women
and girls, with incidences of additional abuse
suffered in the process of trying to access justice. The implications of this are discussed in
the final section but before turning to this
we consider the engagement of donors and
the non-governmental sector with both the
formal and traditional sectors in efforts to
tackle SGBV.
The ‘New’ Informal Sector
Figure 1 highlighted the increasing importance of the ‘other’ informal sector, including civil society organisations—primarily
national and international NGOs, and (other)
members of the international community,
including the UN, and bilateral and multilateral donors. This section elaborates
on these, which are a particular feature of
Liberia’s hybrid justice system, providing
Art. 10, page 12 of 16
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
support not only to the formal, customary and traditional sectors but also through
programming help to create hybridised systems. A prime example of this is women’s
Peace Huts, an ADR mechanism modelled
on the traditional ‘Palava Hut’ system. An
initiative that originated with the Women in
Peacebuilding Network (WIPNET), a civil society organisation spearheaded by the Liberian
Nobel Peace Prize Laureate Leymah Gbowee.
Peace Huts are considered ‘communityled peace building groups’, where women
meet regularly to ‘share information about
problems and issues… and plan actions to
further investigate, publicize, or resolve the
issues’ (Moser, 2007: 6). At first, the Peace
Huts focused on counselling women who
had experienced grief and trauma as well as
supporting ex-child soldiers after the civil
war. The Peace Huts also serve as a refuge,
as women experiencing domestic violence
can ‘run to the Peace Huts’ for safety (Moser
2007: 6). In 2006, Peace Hut women began
hearing cases, including rape. According to
Luppino and Webbe (2011: 119), in 2011, 17
existing peace huts ‘mediated a combined
163 cases. Of those cases, 66 were SGBV
related, while 97 cases accounted for other
forms of violence such as murder, battery,
neglect, etc.’ The women additionally help
resolve cases involving pregnancy and abandonment and counsel survivors of domestic
violence or rape.
Peace Huts are examples of informal spaces
in which women’s leadership and conflict
resolution skills are embraced that have captured popular imagination from their inception, and have received extensive external
support, including from UN agencies and a
host of international NGOs. There have also
been significant efforts to coordinate activities with the formal sector: for instance, with
support from UN Women, the Peace Huts
have worked with the Liberia national Police
(LNP) to help address SGBV. One initiative
involved the distribution of mobile phones to
the Liberian National Police to participating
women, to help prevent crimes and violence
against women in March 2012. In addition to
the cell-phone distribution, a free hotline to
the police was established with private sector
support to facilitate calls (UN Women, 2012).
While an arguably laudable initiative,
something of a ‘peace hut craze’ has seen
a multiplicity of different UN agencies and
NGOs vying to support in a scattered, ad-hoc
way. For example there are peace and palava
hut programmes for men, for women, for
youth, for communities, etc. However, this
has detracted from the overarching problems facing the justice system and little has
been done to address problems within the
traditional system itself, which continues
to exclude women and pursue justice in
problematic, sometimes dangerous ways.
Moreover, there has been little consideration of how the international appropriation
of a central customary justice practice has
affected, or could affect, community and
cultural dynamics.
This particular example highlights the
potentials and pitfalls of efforts, both organic
and overt, to improve the complementarity
within Liberia’s hybrid security and justice
sectors with regard to SGBV. In particular, the
support of international development actors
in promoting initiatives such as peace huts,
or development of alternative focal points
in the referral pathway, is positive, in that it
advocates a community-focused approach.
This can, however, privilege alternative or
competing informal interests over existing
customary structures and traditional authorities. This can lead to serious adverse outcomes
by risking the alienation of traditional actors,
whom remain cultural gatekeepers and community opinion formers, problematic as their
perspectives may be (or, especially so).
These are just a few of the issues that need
to be considered when attempting to harness
the reality of hybridisation to promote access
to justice for SGBV. The next section discusses
this in greater detail, drawing conclusions
from the research and providing some recommendations going forward.
Conclusion
The preceding discussion highlights both
the reality of the intertwined (or hybrid)
nature of the Liberian security and justice
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
sectors and the reality of relative advantages and disadvantages of the formal and
traditional/customary sectors in relation to
women’s access for justice for SGBV. This
makes the paper’s framing question – what
the prospects are for complementary rather
than competitive provision of justice for victims of SGBV – somewhat difficult to answer.
The research highlighted several pertinent
issues. The first is that the notion of compromise is a reality in both sectors – whether
to maintain family unity in the case of the
traditional sector or because of corruption
in the formal sector (which is also increasingly an issue in the traditional sector). These
perspectives were repeatedly emphasised by
female interviewees, who as a consequence
by and large expressed a preference for the
formal system, save for its inaccessibility,
cost, corruption and, importantly, the fear of
ostracism if cases are reported to the police.
This indicates that while hybridity is a reality,
more resources need to be channelled into
the formal sector, which interviewees considered to more universally uphold international human rights standards.
Sections 3 and 5 also demonstrated that
numerous opportunities for interaction
exist among various actors concerned with
addressing SGBV. Indeed, respondents all
discussed frequent engagement across sectors – for instance WACPS Officers noted that
they often engaged with traditional women’s
groups, including the Sande Society to support SGBV survivors, while the various NGO
representatives noted that they regularly
organised joint workshops and promoted
engagement between the formal and traditional sectors as part of their programmes.
What appeared lacking was focused engagement. Some practical initiatives therefore
could include training traditional women
leaders as focal points or counsellors in the
SGBV referral pathway, especially as women
respondents reported seeking support for
SGBV cases first from Sande leaders. This
could also provide an avenue for addressing harmful traditional practices, such as
FGM/C as these are the same leaders that
must be engaged to address the practice.
Art. 10, page 13 of 16
Relatedly, it is important to work both with
male and female traditional and religious
leaders as community gatekeepers, and partnering and engaging with men’s groups to
redefine masculinities.
In practical terms collaboration could
be fostered in other areas as well. For
instance, improving coordination between
government agencies and international,
national and community NGOs, and of common reporting and record keeping, especially
of gender disaggregated data, which would
help provide reliable data on the scale and
scope of the problem with a view to developing mitigation measures.
An issue apparent in interviews was the
lack of knowledge in both the traditional
and even in the formal sector of the roles
and responsibilities within the formal sector – for instance the WAPCS police officer
above who considered adjudication of rape
cases to be part of her role. One measure to
address this would be to enhance community-based legal expertise, including educating community members about their legal
rights and options and capacitating existing community structures to provide legal
advice and improved understanding of formal sector processes. Further, supporting
dialogue processes between the formal and
traditional justice sectors would help build
synergies and a shared understanding of
agreed legal frameworks. This could be a role
for the informal/non-governmental sector.
Indeed, as Section 5 highlighted, many existing initiatives are donor- and international
NGO-driven, which has adverse implications
for immediate applicability and long-term
ownership, legitimacy and sustainability.
As a result it is critical to engage civil
society and foster national ownership of
relevant processes.
Interviewees also cautioned against considering SGBV in isolation. They noted that
women faced obstacles in many arenas in
accessing justice, for instance non-payment
of child maintenance. It was also noted that
SGBV is not limited to rape, and that other
issues, such as domestic violence must also
be considered.
Art. 10, page 14 of 16
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
Finally, initiatives must acknowledge the
overarching importance of changing social
norms both in the formal and traditional
sectors, upholding the rights and protection of women and girls as a priority, given
the largely male-dominated hierarchies in
both. It should be a whole-of-community
exercise, engaging women, men, boys and
girls, and traditional authorities. In order
for this engagement to be truly community-focused, however, it needs to be sure
to be inclusive of traditional authorities.
There is also a need to empower women to
be active participants in local governance
and political systems, and the potential
of the ongoing deconcentration/decentralisation process in ensuring access to
basic service delivery, especially health
and education, as well as the security and
justice sectors.
Notes
1
Liberia was founded in 1817 by the
descendants of former American Slaves.
Funded by the American Colonization
Society (ACS), the settlers declared their
independence in 1847. These AmericoLiberians upheld a system of racial segregation, which placed themselves above
the indigenous Liberians, believing that
they could become civilised only through
conversion to Christianity and education.
2
Interview, SGBV survivor, September 2016.
3
Rape tends to rank first in Liberia among
sexual offenses reported/registered.
For instance 682 rape cases were filed
to the Gender Ministry’s database in
2014, compared to 407 cases of physical
assault and domestic violence.
4
Interview, UNMIL Gender Officer, 29
January 2016.
5
Interview, Ministry of Internal Affairs
Consultant, 1 February 2016.
6
Focus group discussion in Nimba
and Bomi Counties with community
members
and
county
officials,
September 2016.
7
8
9
10
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
26
Interview, Women and Children
Protection Section (WACPS) Officer, 18
September 2016.
Interviews with community members,
traditional leaders and justice and security officials, Bong, Nimba and Bomi
Counties, September 2016.
Interviews with community members,
traditional leaders and justice and security officials, Bong, Nimba and Bomi
Counties, September 2016.
Interview, women’s group member,
September 2016.
Interviews, Gender Ministry Officers,
Bong, Nimba and Bomi Counties,
September 2016.
Interviews, justice and security actors,
Bong, Nimba and Bomi Counties,
September 2016.
Interviews, justice and security actors,
Monrovia, January–April 2016.
Interview, UNMIL Rule of Law Officer, 28
February 2016.
Interview, UN Women staff member, 28
January 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
Interview,
WACPS
Officer,
18
September 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
Interview, UN Women staff member, 28
January 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
Interview, Ministry of Internal Affairs
Consultant, 1 February 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
Interviews, Bong, Nimba and Bomi
Counties, September 2016.
M’Cormack: Prospects for Accessing Justice for Sexual Violence in Liberia’s
Hybrid System
27
Focus group discussion, Nimba County,
September 2016.
Competing Interests
The author has no competing interests to
declare.
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How to cite this article: M’Cormack, F. 2018. Prospects for Accessing Justice for Sexual Violence in
Liberia’s Hybrid System. Stability: International Journal of Security & Development, 7(1): 10, pp. 1–16,
DOI: https://doi.org/10.5334/sta.603
Submitted: 01 December 2017
Accepted: 12 March 2018
Published: 01 May 2018
Copyright: © 2018 The Author(s). This is an open-access article distributed under the terms of the
Creative Commons Attribution 4.0 International License (CC-BY 4.0), which permits unrestricted use,
distribution, and reproduction in any medium, provided the original author and source are credited.
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