Tuesday, August 30, 2011

Locating the gift of justice in community courts

Juan Obbario at JWTC

“The gift is everywhere. The important element is justice and not gift”

(Juan Obbario, July 16th 2011)

In 1975 Mozambique saw the end of Portuguese colonial rule. Two years later, a civil war began and ended in the early 1990s. Post 1975 the country has seen a socialist regime. Most interesting for this piece is how both the civil law system and customary law characterize Mozambique’s legal system up to today. In rural areas the power of chiefs remains widespread. In urban areas the opposite is not necessarily in effect. It can be said that the distinction between rural and urban is abstract and mainly an administrative distinction, as these two areas are continuous. The recognition of custom and community is widespread and permeates in every realm of contemporary Mozambique. Defining community is similarly tricky as this notion is broad. So, what can be said of the space of a “community court”? Can we say such a space is really a court, when there are no ‘real judges’ present? Subsequently, how can justice be obtained in such a space, where (legal and social) boundaries are elusive?

Juan Obarrio’s ethnographic work in community courts in Northern Mozambique’s Nampula province is a refreshing attempt at bringing the law closer to home, so to speak. His fascination with the community courts dating from the socialist period raises a number of questions and debates on the practice of law, sociality and attaining justice. In his 2010 article published in Anthropological Theory[i] Obbario introduces the reader to a civil dispute, taking place in 1976 between two men over a woman. The dispute, which required the intervention of the local FRELIMO Secretary, became somewhat resolved “through a payment in kind”, an exchange of everyday necessities. In his understanding, the Secretary located conflict resolution within “local customs and sensibilities”, requiring an exchange of equivalences, which were rather arbitrarily determined. Referring to other similar civil disputes, such as a divorce matter between a couple (and family) and a case of adultery, Obarrio terms this exchange and resolve of offense interplay “the gift of justice”.

Where is justice, one may ask? And what does it mean for justice to be ‘measured’ in vegetables, grains and oils (as in the dispute referred to earlier)? And who benefits from this exchange? These questions remain unanswered in Obarrio’s explorations. However, Obarrio engaged us with the more theoretical underpinning of gift giving and gift-taking, and the implications of the gift in relation to justice, and matters of life. Using yet another concept, Obarrio introduced the “ban” in relation to matters of life and law. He used the ban as a concept that links the ordinary and the exception. The ban is seen as “double-bind” because it excludes and includes. He argued that the way law works in Mozambique is not as logic, but as ban. The law captures life, but there are also instances where life captures the law. This is all animated in the space of the people’s / community courts, institutions that turn life to “juridical matter: the object of competing jurisdictions and traditions.” We are still left in the dark about the gift as a concept. Is the gift also a dual category or dual concept as a practice of justice?

Let us return to the community court, an interesting space that amalgamates state law and customary law. The latter has the underpinnings of familial and ‘kinship’ rules and structures. This is seen in the constant recall and introduction of the maternal uncle as a form of moral authority, but also a figure whose presence is called upon to resolve a domestic dispute. The ‘judge’ is merely present as a mediator/ facilitator between families, as most disputes involve families, even where there were only two people presenting a dispute. The role of the uncle, though uninterrogated by Obarrio carries a significant responsibility and power. We are told that there is a “crucial relation of mutual obligation between a person and his or her maternal uncle”. It’s not only the uncle that matters, but that relatives too can influence decisions on their kin’s lives.

Instead of understanding the role and meaning of the maternal uncle figure in Mozambique sociability, Obarrio sees the “court as an uncle”, where law and familial structure fuse together. I am intrigued by this reference of the court, and the uncle’s equivalence to the court. Is this a way of seeing an extension of family relations or is it the extension of state’s law efforts? It is surprising that power structures (patriarchal and other) are not under scrutiny here, that the power of the state in matters civil is not problematized. Can the uncle, and thus the court, be objective? What is the role of the court then when it is ‘an uncle’?

We have to appreciate the manner in which Obbario’s explorations highlight the relationship between law and everyday life. Community courts make publicly visible what has remained predominantly in the private and intimate realm. Within the courts, intimate life (family and kinship) becomes publicized. Whether this becomes the “intimacy of the state” as Obarrio argues, is not so simple.

We are still unclear how different people experience justice, or whether any of the people in the courts attain justice. Similarly, this started out by stating that the rural and urban distinction in Mozambique is rather loose. We may wonder whether the experiences of justice in these two localities would be the same, and whether the notion of gift carries similar significance.

Zethu Matebeni, Wits University

[i] Obarrio, Juan. 2010. Beyond equivalence. The gift of justice in Mozambique (1976, 2004). Anthropological Theory, 10(1): 1-8.

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