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6.4. PRACTICAL APPLICATION: CUSTOmARy LAw
Latin America: Recognition of indigenous customary law
In Latin America, the incorporation of indigenous customary law into the national legal systems
has been developing since the 1990s in order to address the gaps of ineficient and deplorable justice
administrations; as states’ response to intense pressure from indigenous organization; and to fulil
the requirements derived from the ratiication of ILO Convention No. 169.
Bolivia, Colombia, Ecuador, México, Nicaragua, Paraguay, Perú and Venezuela recognise legal
pluralism through their constitutions by recognizing the multicultural or multiethnic nature of their
societies. Donna Lee Van Cott: Legal Pluralism and Informal
Community Justice Administration in Latin America. http:www.nd.edu~cmendoz1datospapers
vancott.pdf
Ecuador: Recognition of legal pluralism Recognition of legal pluralism has been developing
in Ecuador since 1998, the year when Ecuador ratiied Convention No. 169. The 1998 National
Constitution, established that “the authorities of the indigenous peoples will exercise judicial functions,
applying norms and procedures for the solution of internal conlicts in accordance with their customs or
customary law, whenever they are not contradictory to the Constitution and the laws. The law will make
those functions compatible with those of the judicial national system.”
This constitutional recognition reafirms the heterogeneity of the cultures and the existence of
legal pluralism in the country. It implies that in the same territory, two or more legal systems coexist.
Despite the ratiication of Convention No. 169 and the constitutional changes, Ecuador has not fully
developed into a multicultural and pluralistic State. In practice, indigenous legal systems are being
undermined by judges and others legal authorities,
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who regard the indigenous systems as “static”, “archaic” and “savage” and thus continue to act
within the frame of a society characterized by only one culture, one language and one judicial system.
Hence, they are ignoring the lexible and dynamic nature of contemporary indigenous systems, which
tend to adjust to changing relations with outside actors as well as changes within their communities.
To remedy this situation, the Council for the Development of Ecuadorian Nationalities and
Peoples CODENPE, established an agreement with the District Attorney’s Ofice to create a Unit of
Indigenous Justice. Indigenous prosecutors monitor the respect for, and the application of indigenous
laws in national legal proceedings involving indigenous peoples. CODENPE and the Supreme
Court are coordinating efforts in order to nominate indigenous judges to rule over criminal cases in the
provinces where indigenous prosecutors work. Lourdes Tiban: El derecho indígena y su relación
con la justicia ordinaria http:www.latinoamerica-online.info2008
indigeni08_derecho.htm; http:www.ecuanex.net.ecconstitucion.
Case prepared by Brenda Gonzales Mena.
Bangladesh: Recognition of customary family laws
The situation in Bangladesh is an example of the fact that state recognition of indigenous legal frameworks
varies depending on the nature of the cases.
The personal laws of the indigenous peoples of the Chittagong Hill Tracts CHT in Bangladesh
on marriage, inheritance, and related matters are regulated by unwritten customs, practices
and usages. The State accepts this situation, as customary family laws of the different indigenous
peoples of the CHT normally do not come into conlict with other laws and systems, since the
region has its own partially autonomous self- government system that acknowledges indigenous
law and jurisprudence. Customary personal laws of the indigenous peoples of the CHT are regulated
substantively by the traditional institutions of the CHT; village leaders, headmen, and traditional chiefs
or rajas.
However, the legal status of their customary laws with regard to lands and natural resources in the
CHT is far more contested. Customary land and forest rights are enjoyed usually only where, and to
the extent, they do not conlict with state law. Raja Devasish Roy 2004, Challenges for Juridical
Pluralism and Customary Law of Indigenous Peoples: The Case of the Chittagong Hill Tracts,
Bangladesh; Defending Diversity: Case Studies Ed. Chandra
Roy, the Saami Council, pages 89-158; Case cited in John Henriksen: Key Principles in
Implementing ILO Convention No. 169, ILO, 2008.
Kenya: Selective acceptance of customary law There is limited recognition of customary law in
Kenya and in many former English colonies, where the constitutions allow the statutory recognition
of customary law over matters such as adoption, marriage, divorce, burial and the devolution of
property on death. Customary law is also applied to a limited extent in the recognition of local leadership,
such as chiefs, although parallel structures have been created to subvert and undermine existing
ones. At the same time, the authority and validity of these laws are seriously eroded through the
repugnancy clause inherited from colonial laws and traditions, requiring consistency between customary
law, all written laws and the constitution. The clause makes customary laws acceptable only as long as
they are not repugnant to written law.
Female genital mutilation FGM is common and deeply entrenched among many African
communities, indigenous and non-indigenous. FGM is a social rite of passage in theses societies, and
girls who have not gone through FGM are perceived as incomplete and face stigmatization. FGM is
likely to result in serious and long-lasting physical complications and is considered an act of violence
against women, or rather female children, and as a human rights violation.
Although no governmental institution perform circumcisions on girls in Kenya anymore, and the
Children’s Act of 2001No. 8 prohibits circumcision of girls, the practice of FGM is still widespread in
Maasai and other communities. This is partly due to inadequate preventive measures from authorities
to protect girls from being forcibly mutilated. From a human rights law perspective, this is an
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unacceptable custom – and the State is obliged to ensure that it is not practiced, despite the fact that
this phenomenon in some cases may be deined as an indigenous custom.
In contrast, the repugnancy clause has often been used to negate positive customary laws. For
example, the Maasai customs regulating rights to lands and resources are to a limited degree
recognized or taken into account. G. Nasieku Tarayia 2004 Legal Perspectives of
Maasai Culture, Customs and Traditions; Defending Diversity: Case Studies Ed. Chandra
Roy, the Saami Council. Case prepared by Naomi Kipuri and John Henriksen.
Finland, Norway and Sweden: Recognition of Sami customs and customary law
Although, in principle, Sami customs and customary practices are applicable sources under the
respective national legal systems, they are to an extremely limited degree taken into account in policy
decisions or in the development and application of national legislation.
Article 9 of the draft Nordic Sami Convention, addresses the issue of Sami legal customs, and
reads as follows: The states shall show due respect for the Saami
people’s conceptions of law, legal traditions and customs. Pursuant to the provisions in the irst
paragraph, the states shall, when elaborating legislation in areas where there might exist relevant
Saami legal customs, particularly investigate whether such customs exist, and if so, consider whether
these customs should be afforded protection or in other manners be relected in the national legislation.
Due consideration shall also be paid to Saami legal customs in the application of law.
Case cited in John Henriksen: Key Principles in Implementing ILO Convention No. 169, ILO, 2008.
Namibia: Recognition of Traditional Authorities The Namibia Constitution recognises customary
law and traditional authorities as part of its legal system. The Traditional Authorities Act No. 25 of
2000 provides for the establishment of traditional authorities consisting of chiefs or heads of traditional
communities and traditional councillors. These are responsible for implementing customary law
and settling disputes. To be recognised, they must submit an application to the State, and the
authority to confer recognition or withhold it from traditional leaders is thus vested in government.
However, the CERD Committee, among others, has questioned the lack of clear criteria for the
recognition of traditional leaders, and the fact that no institution exists to assess applications for
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recognition independently of government. However, some NGOs see the Traditional Authorities Act as
an opportunity for indigenous peoples to participate more effectively in decision-making, although some
challenges remain, including the required training in administrative and leadership skills that the full
implementation of the Act for indigenous peoples would imply.
CERD, Concluding Observations: Namibia, August 2008, UN Doc. No.: CERDCNAMCO12
Namibian Constitution, Traditional Authorities Act; R Kappleca WIMSA ‘Civil Rights in Legislation and
Practice: A Case Study from Tsunkwe District West, Namibia’ in Hitchcock and D Vinding eds Indigenous
Peoples Rights in Southern Africa 2004 91. Case prepared by Naomi Kipuri
Greenland Denmark: Criminal code based on customary law
The Criminal Code in Greenland is partly based on the customary law of the Greenland Inuit. This is
particularly the case insofar as sanctions for criminal offences are concerned, whereas guilt is determined
as in Danish criminal law.
Imprisonment as a sanction is only applicable in relation to extremely serious offences, or when it is
otherwise deemed necessary. Individual sanctions normally consist of measures such as caution, ine,
suspended imprisonment, and community service sentence. Hence, there is no closed prison facility
in Greenland, only nighttime correctional institutions. During the day, inmates can leave the correctional
institution to work, study, and perform other activities, including ishing and hunting.
The judicial system of Greenland also differs markedly from judicial systems of other countries in
other ways. For instance, districts judges, assessors and defense counsels are lay locals and not trained
lawyers. Only when a case is brought before the appeal court, the High Court of Greenland, do legally
trained prosecutors, judges and attorneys become involved.
Commission on Greenland’s Judicial System, Report No. 14422004;
John Henriksen: Key Principles in Implementing ILO Convention No. 169, ILO, 2008.
Philippines: Conlict resolution institutions The Indigenous Peoples’ Rights Act recognizes
indigenous peoples’ right “to use their own commonly accepted justice systems, conlict
resolution institutions, peace building processes or mechanisms and other customary laws and
practices within their respective communities and as may be compatible with the national legal
system and internationally recognized human rights” sec.15.
http:www.ncip.gov.phmandatedetail. php?mod=ipra
vII. LAND AND TERRITORIES
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7.1. THE CONCEPT Of LAND
