Washington International Law Journal


Molly Utter


After a fifteen-year civil war, the Mozambique government turned to customary justice to address the conflicts that emerged during the war by creating Community Courts. The goal of the Community Courts was to mimic their successful grassroots predecessors, the Popular Courts, and to bring justice to the people, by the people. Yet one year before the creation of the Community Courts, the Mozambican government implemented the Law on the Organization of the Judiciary, which limited formal jurisdiction to the district level and excluded grassroot courts from the official judicial structure. Grassroot courts, most significantly the Popular Courts, ceased to run and were disbanded. This article discusses the question: if the Mozambican government excluded grassroot courts, why did the Frente de Libertacao de Mocambique (FRELIMO) government create the Community Courts? This article argues that the new FRELIMO government created the Community Courts as a tool of political control. This article then explores several recommendations to avoid misuse of customary courts by courts in post-conflict states. First, states should consider placing customary courts under the judicial branch to prevent post-conflict governments from using community courts as a tool of political control. Second, community courts must operate on a continuum between partial-incorporation and non-incorporation into the formal justice system, depending on the cases being adjudicated. Third, the role of codification of customary laws should be reevaluated considering codification’s effect on community culture. Despite the advantages of codification, it allows central governments to take away a community’s culture and halt the progressive and flexible nature of customary law. Lastly, international scholars must accept that customary justice is necessary and compatible with state-building in post-conflict societies.

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