“Traditional”, local justice seeks to add a new layer to the transitional justice framework by drawing upon traditional rituals and processes in order to enact justice. Most of these rituals focus on restorative justice, with reparations to the victims’ families and reintegration of the perpetrators at their core. Such efforts are intended to be community-based, for these perpetrations, especially in locations such as Rwanda and Uganda, involved perpetrators attacking members of their own community. However, despite the goals of being community-based and rooted in tradition, some of these justice mechanisms fall under the control of the state. Most notably, gacaca has been criticized by such scholars as Susan Thomson and Rosemary Nagy for becoming an instrument of state control (see their article: “Law, Power and Justice: What Legalism Fails to Address in the Functioning of Rwanda’s Gacaca Courts”). Gacaca was enacted by national law, is often monitored by state security officials, and is tightly regulated and controlled by the government. In short, through gacaca, “the Rwandan government seeks to ensure that the populace performs its vision of justice and reconciliation without opposition” (Thomson and Nagy, 14). From such observations, then, it would seem preferable that traditional justice operate independent of state control in order to maintain its integrity.
However, such independence may also be dangerous. In “Ritual (Ab)use? Problems with Traditional Justice in Northern Uganda,” Tim Allen argues that regulation, most likely by the state, are an important part of preventing the abuse of traditional methods. As Allen warns, “Without regulation, rituals and customs are as likely to be adapted to interpret and punish witchcraft and sorcery as they are to deal with more ‘conventional’ instrumental killings and mutilations” (Allen, 51). Furthermore, Allen argues that the absence of state involvement may actually create divisions within the country or at least make transitional justice less likely to promote national integration and unity (52-53). This is because it would make it appear that the government and other regions in a state do not care about the violence in a particular region and desire to leave the locals to their own devices.
So, where should the state fit in traditional justice? As is often the case, a middle path seems the most suitable. The state does need to offer its support and legitimacy to methods of traditional, local justice. However, the state must also not take full control of such methods to where they become another arm of the state. When this occurs, it can actually create a great deal of resentment in the local populations and de-legitimize the process, as was often the case with gacaca in Rwanda. Therefore, the state should not be wholly absent, but it must not use traditional justice as a type of panopticon. So, in the case of state involvement, moderation is best, but if a decision is to be made, it is better to err on the side of too little than too much.