Access to justice and human rights: the recognition of customary justice systems

Abstract

There is an increasing development and institutionalization of customary justice systems in the legal order of several countries in the world. These justice mechanisms are recognized for providing an affordable and culturally relevant remedy to the population, in a more simplified and accessible way. Hence they are considered as useful tools to enhance the access to justice. Bearing in mind some of the human rights challenges associated with the use of customary justice systems, it is essential to ascertain if the main human rights that comprise the access to justice can be respected. In the General Comment No.32, concerning the right to equality before courts and tribunals and to a fair trial, the Human Rights Committee acknowledged that the customary courts recognised in the State legal order fall under the human rights provisions of article 14 of the ICCPR. This thesis examines the human rights obligations and the normative orders of States that have recognised customary justice systems and concludes that there are still numerous difficulties in complying with the established human rights provisions. Furthermore, it considers that, in the current circumstances, the human rights obligations of the States should be additionally defined and promoted.