A summons to the magistrates’ courts in South Africa and Uganda

Abstract

The expansive literature on law and justice across Africa emphasizes why people do not use lower state courts. Consequently, a striking lack of attention is paid to how and why people do engage with lower state courts. Drawing on a systematic literature review and a multi-sited qualitative study, we make three contributions on this topic. First, we explore how this academic gap emerged. Second, we critique the procedural justice model that currently underlies much ‘access to justice’ programming, which seeks to improve citizens’ engagements with the courts. In place of what we describe as its arithmetic assumptions about institutional engagement, value, and legitimacy, we propose a trifactor framework. Citizen engagement, we argue, occurs as people reconcile how they think the courts should act, how they expect them to act, and how they need them to act in any given instance. Third, drawing on our empirical studies, we highlight that this framework is flexible enough to capture people’s actually existing decision-making in a wide variety of settings and to map how those trade-offs shift throughout the process of their case, providing important insights into ideas of justice and statehood.

“Maybe we should take the legal ways”: Citizen engagement with lower state courts in post-war northern Uganda

“…We show how in the perceived and actual presence of state violence, judicial dysfunction, and corruption, people can still acknowledge the authority of the courts, and endow them with the right to arbitrate, even for seemingly minor disputes. Theoretically, our findings build on ethnographically informed work on law-in-action across Africa, challenging the notion of a predictable relationship between procedural justice, trust, and institutional legitimacy (e.g., Cooper-Knock & Macdonald, 2020;Lake et al, 2016;Massoud, 2013;Medie, 2020;Rubbers and Gallez 2016;Verheul, 2016;Weeks 2018). Drawing on insights from our case, we extend and enrich dominant western-focused theories of citizen-authority relations, showing not only how varied sources of court legitimation can be, but also questioning the extent to which legitimacy perceptions are a key predictor for engagement with lower state courts in areas of limited statehood.…”

“…Normative modes of justification: The idea(l) of the state and the empirical legitimacy of the courts Some people justified recourse to the courts in terms of moral ideas about how the state ought to function in the regulation of social order. Normative commitments to a hypothetical state can flourish in situations where one's experience of the real state is far from positive (Cooper-Knock & Macdonald, 2020;Gupta, 1995;Ismail, 2006;Verheul, 2016). Because they were so familiar, experiences of corruption and institutional dysfunction were galvanizing terrain for lively debates about problems with the existing political dispensation and how things might be better.…”

“…Some expressed support for a liberal concept of the rule-of-law rooted in procedural justice, the written constitution, judicial independence, and the separation of powers. Others, however, expressed state ideals based on patriarchy, gerontocracy, and even personalized rule (Cooper-Knock & Macdonald, 2020). For example, citizens involved in cases often referred to the magistrates as "representing" those in government.…”

“…Sometimes these motivations overlapped but they could also be distinct. It was also the case, however, that corruption and transgressive norms could actively encourage people's engagement with magistrates' courts because they offered an opportunity to transact in banishment, revenge, and appropriation under the guise of legalism (Cooper-Knock & Macdonald, 2020).…”

“…Studies of citizen engagement with justice processes in the post‐colonial era have tended to emphasize a popular preference for disputes to be handled via traditional institutions and informal courts (see e.g., Chirayath et al, 2005; Logan, 2013). Yet across the continent, in areas of limited statehood like northern Uganda, where state authority is contested, judicial presence is patchy, and public perceptions of institutional corruption are widespread, citizens are actually turning to lower state courts in relatively high numbers (Cooper‐Knock & Macdonald, 2020; Lake, 2014; Lake et al, 2016; Medie, 2020; Verheul, 2016). This empirical reality challenges common depictions of state‐administered justice as “inherently illegitimate” and even “un‐African,” particularly in relation to local disputes such as land wrangles, family altercations and lesser criminal charges like petty theft (Dreier & Lake, 2019, pp.…”