Myth-Busting Restorative Justice: Uncovering the Past and Finding Lessons in Community

A common narrative about modern restorative justice is that it is a revival of historic and indigenous justice practices that have been practiced around the world. Critics of this narrative call it a myth, arguing that the claim is overbroad and unsupported by existing evidence. Embedded in this conversation are questions about how to respect the contributions of indigenous traditions and avoid whitewashing. Such an overwhelmingly broad claim tends to lead to romanticization and whitewashing of indigenous traditions, serving the needs of largely white, Western advocates in yet another colonial endeavor. But ignoring the indigenous contribution to restorative justice altogether is whitewashing by a different route. This Article offers three main contributions. First, it reveals the current lack of empirical grounding for the common narrative. This descriptive insight motivates the second contribution: the creation of a methodology for better ascertaining the degree to which any historic, indigenous practice did constitute restorative justice. Applying this methodology to investigate the traditional practices of the Igbo and Acholi in sub-Saharan Africa, the Article begins the work of documenting the relationship between restorative justice and historic practices, work that leads to the third and last contribution. Better conceptualizing past practices not only advances our understanding of such practices but also contributes to our understanding of modern restorative justice. Here, the case studies of the Igbo and Acholi reveal a need for restorative justice scholars to engage in greater conceptual and empirical analysis of the role of community in restorative justice practices

Expanding Standing to Develop Democracy: Third Party Public Interest Standing as a Tool for Emerging Democracies

Standing doctrine can play an outsized role in marginalized groups\u27 ability to protect their constitutional rights. The cultural and political dynamics in developing countries routinely undermine the proper functions of the democratic system and make it unlikely that those parties most directly deprived of their rights will be heard by elected legislatures or be able to directly access courts. The vindication of their rights and the rule of law itself depend on the ability of others to litigate on their behalf. Thus, this article argues for the expansion of standing doctrine to protect the democratic ideal in emerging democracies. Using Kenya and Uganda as case studies, this article demonstrates that third party public interest standing — the permission of third parties to institute judicial review proceedings on behalf of injured parties — serves two key ends. First, it allows for the discursive empowerment of marginalized groups. Second, in doing so, it enhances democracy. Third party public interest standing is viewed with suspicion by many western supporters of democracy, but that suspicion is premised on faulty assumptions. The political and social contexts in many developing nations make overly strict limitations on standing dangerous to the rule of law. Where the executive and parliament are unresponsive or unaccountable to the population, and where access to the judiciary is near impossible for certain segments of the population, third party standing may create the only opportunity for political presence. This article both challenges the traditional perceptions of democracy and constitutionalism as inappropriate and incompatible with the needs of emerging democracies, and recognizes that innovations such as third party public interest standing are necessary to further constitutional, democratic, and rule of law goals

Reconciling Indigenous and Women\u27s Rights to Land in Sub-Saharan Africa

In sub-Saharan Africa and globally, battles for rights relating to customary law are common. Indigenous groups throughout the African continent are fighting to maintain access to lands they hold in customary tenure as competition for land increases, while women fight against application of customary laws that deny them rights to attain or control property. Elsewhere around the globe, indigenous groups, particularly those in resource-rich areas, are vulnerable to land grabs from investors and governments. In the in the Americas, Europe, and Asia, indigenous groups face threats to their lands and natural resources. While indigenous rights activists call for government recognition of indigenous land rights and livelihoods, the “women question,” or, how to ensure the protection of indigenous women’s rights, remains an open question. This Article considers how African state governments can legally recognize customary land tenure in a manner that protects indigenous groups while still affording property and other rights to women, and argues that women’s rights and customary law conflict enough such that any legal system that both protects customary tenure and aims to protect women’s rights to land ownership must, at some level, fundamentally alter aspects of customary systems of land ownership. Because of the global nature of these problems, any resolution in sub-Saharan Africa is certain to have implications worldwide