The Heterogeneous State and Legal Plurality

A Palimpsest of Political and Legal Cultures

A palimpsest is a parchment or other writing material written upon twice, the original writing having been erased or rubbed out to make place for the second or, more simply, a manuscript in which a later writing is written over an effaced earlier writing. In archaeology, the concept of palimpsest is used to refer to situations in which the same archaeological layers comprise objects and residues from very different periods and times and very often not accessible for exact dating. I use the metaphor of the palimpsest to characterize the intricate ways in which very different political and legal cultures and very different historical durations are inextricably intertwined in contemporary Mozambique. Their impact on state functions and actions is rendered by the concept of the heterogeneous state illustrated below.

During the 30 years of Mozambique's existence as an independent state, political-legal cultures as diverse as the colonial culture, the socialist culture, the democratic culture, and the traditional or community cultures have superimposed themselves on the country. The uneven embedding of these highly diverse political-legal cultures derives in great part from the political instability caused by multiple ruptures succeeding each other in fast pace. In fact, in the past 30 years, Mozambican society has experienced a series of radical political transformations, many of them traumatic, which have followed each other with dizzying speed. The following are the most significant:

1. 1 the end of colonialism, which was violent up until its last period (starting with the national liberation struggle from the early 1960s until 1975)

2. 2 a revolutionary rupture that aimed to build a nation from the Rovuma to the Maputo,Footnote ¹⁶ a socialist society, and a “new Man” (1975–1984)

3. 3 the aggression of colonial Rhodesia and apartheid South Africa, in retaliation for the solidarity offered by Mozambique to the struggle for freedom in the region (from the late 1970s until the 1980s)

4. 4 the civil war (from the end of the 1970s until 1992)

5. 5 the collapse of the revolutionary economic model and its abrupt replacement, under external pressure, by the neoliberal capitalist model, which included both structural adjustment and the transition to democracy (1985–1994)

6. 6 the construction of democracy (from 1994 to the present).Footnote ¹⁷

All these transformations occurred as ruptures, as processes, which, instead of capitalizing on the positive features of previous transformations, aimed to sweep away all traces of them and make a new beginning, unable or unwilling to accommodate the immediate past. In reality, however, ruptures coexisted with continuities, blending explicit and self-proclaimed ruptures with unspoken continuities and so giving rise to very complex legal and institutional constellations and hybridizations.

Some of these constellations and hybridizations are the result of political decisions; others have proliferated in a more or less unacknowledged fashion, far removed from political proclamations. In these constellations, the most complex combinations occur between the cultures of greater historical duration (the traditional cultures and the colonial culture) and the cultures of a lesser historical duration (the socialist, revolutionary culture and the democratic, capitalist culture). The colonial political-legal culture, despite having been most thoroughly rejected—as exemplified by the notion of the escangalhamento do Estado (breaking up of the colonial state) during the revolutionary period—has prevailed up to the present day, not only in its most obvious forms, such as the colonial legislation still in force or the organization of the administration, but above all in terms of habits and mentalities, styles of behavior, representations of the other, etc. (Reference Bragança and DepelchinBragança & Depelchin 1986; Reference Monteiro, Ferraz and MunslowMonteiro 1999). It was within this culture that most of the senior civil servants who still ensure administrative routines today were trained.

Another legal-political culture that was rejected, although not quite so unconditionally, was the set of traditional or community cultures. Viewed as products of ignorance and as producing obscurantism and reactionary ideas, these cultures were seen as remnants and instruments of colonial culture. This attitude of rejection, which totally prevailed during the early post-independence years, came to coexist with another, more moderate attitude that favored a highly political and selective use of traditional cultures. For example, the creation of the popular courts, after the independence, sought selectively to co-opt traditional cultures, in order to make them serve the revolutionary culture (Reference Sachs and WelchSachs & Honwana Welch 1990).Footnote ¹⁸ In this early period, the constellation of political-legal cultures was dominated by the Eurocentric revolutionary socialist culture (henceforth, socialist culture). This culture, though based on the European revolutionary experience at the beginning of the twentieth century, also encompassed other non-European experiences: Latin American (Cuba), Asian (China and North Korea), and African (African socialism, with a much less Marxist-Leninist outlook than the former and, in general, with a much less explicit set of doctrines, as exemplified in the case of Tanzania). Apparently the only legitimate one, the revolutionary culture coexisted, in fact, alongside the colonial culture and the traditional cultures.

From the mid-1980s onward, it was the turn of the revolutionary cultural component to retreat and give way to the primacy of Eurocentric democratic capitalist culture (henceforth, democratic culture). In contrast to the former, which was adopted as an autonomous option and mobilized predominantly internal energies, the democratic culture was adopted under strong external pressure, which nevertheless in no way excluded its genuine adoption by certain national political elites. Just as in the period when the revolutionary political-legal culture prevailed, the democratic culture brought with it profound political changes, including peace, subjection to global capitalism and the transition to democracy. Like the socialist culture, the democratic culture sought to be the only legitimate cultural reference. However, it had to exist alongside an altogether more complex cultural constellation, including not only the colonial and the traditional, the cultures of longer duration, but also the revolutionary culture of the previous period. The latter had transformed itself into an important institutional reality that, despite having been formally revoked, continued to operate on a sociological level. Thus, for example, the community courts, created during this second period (in 1992) to replace the popular courts of the previous period, ended up by ensuring the continuity of the popular courts, although under very precarious circumstances, as I show in the following section. Using the same facilities and staffed by the same judges who, in the previous period, had been popular judges, the community courts transformed themselves into a highly complex hybrid institution. In these courts, revolutionary, traditional, and community political-legal cultures combined. Eventually, the only absent culture was the one that supposedly had become the official legal and political culture—the democratic culture. In other sectors of public administration and legislation, different political-legal constellations were created. The revolutionary component, which was officially replaced by the democratic component, underwent, in fact, different metamorphoses and combined with the other cultural strains.

From this fusion of ruptures and continuities, a highly heterogeneous state action and a very complex matrix of legal pluralism have emerged that today dominate the legal and judicial system and, more generally, public administration. But a full account of these features of legal and political life in Mozambique requires that another, more recent, factor is brought under consideration: the heavy pressures of the globalization to which Mozambique has been subjected in the process of structural adjustment. I am referring more specifically to the impact of global factors on local and national conditions in circumstances in which the latter cannot consistently incorporate or adapt and much less subvert external pressures. Such pressures are both very intense and very selective, and by imposing their own specific regulatory logic, they result in profound changes in some institutions and legal frameworks. At the same time, other institutions and legal frameworks are left untouched and are therefore subject to their own logics.

This results in enormous fragmentation and segmentation, which affect the entire legal and administrative system. On the one hand, there are the transnationalized sectors, operating according to regulatory logics imposed by the multilateral financial agencies and the core countries. On the other hand, there are the nationalized or local sectors, operating according to hybrid and endogenous logics, which, being irrelevant for the transnational designs, are left to the national and local elites to exert their own political and personal differences on them. For example, the law of the financial and economic sector is today highly transnationalized and grounded in a single way of thinking promoted by global imperatives that leave little or no scope for internal political decisionmaking; at the other extreme, family law, for instance, is of little importance to the transnational powers and is therefore left in the hands of the national elites, who can lead intense political and cultural debates about it. The question of whether there is any underlying compatibility between the strikingly contrasting regulatory logics in these two legal domains is never addressed. The heterogeneity of regulatory logics lies precisely in these disjunctions, which, because they are unquestioned, go on being reproduced.Footnote ¹⁹

The global pressures that have created legal and institutional plurality are of two basic types: pressures from the international financial agencies and so-called donor countries, which fall very specifically into the economic area, and pressures originating from the same agents, but principally from the foreign or transnational NGOs, which fall within what we may term social policy in the broadest sense. Both these pressures are very strong, so much that it is legitimate to ask whether we are not confronted with a situation of shared sovereignty between the Mozambican state and the foreign agents. In the field of economics, the segmentation created by structural adjustment between the transnationalized sector of the economy and the so-called informal sector is immense. It is a matter of two legal and institutional worlds whose actions are very often unfathomable. It is up to the state to keep them apart by managing this heterogeneity. On a strictly legal level, the heterogeneity of regulatory logics and the duality of legal and institutional worlds reproduce themselves in still another form. The two main subcultures of Eurocentric political-legal culture—continental civil law and Anglo-Saxon common law—are today engaged in what we could call a “global legal culture war.”Footnote ²⁰ Breaking apart from the post–World War settlement, common law legal culture, especially in its U.S. law version, has come to assume, through globalization, an increasingly important role. This promotion of common law—which at times can be very intense—is carried out in countries with distinctive legal cultures and very different operational logics and methods from those that prevail in Anglo-Saxon legal culture. Therefore, discrepancies are created within national legal systems, which add up to the already high levels of state heterogeneity and legal pluralism. The official modern legal culture of Mozambique, which is inspired by continental European legal culture, has begun to experience the influence of Anglo-Saxon legal culture from two sides: through the policies of structural adjustment and, due to the proximity of and the close economic ties between the two countries, through South Africa, whose legal culture is Roman-Dutch and Anglo-Saxon in origin. The latter influence is detected in both contract law and the legislative process.

In the “social area,” the segmentations and shared sovereignties are even more complex. The complexity lies in the fact that different NGOs and, in many cases, the different core states behind them, have different concepts of what social intervention should be in such different domains as the fight against poverty, basic infrastructure, education, health care, protection of the family economy and the environment, etc. In other words, in the social sphere, global pressure is not only strong but also differentiated. Its strength still lies in the fact that the pressure, far from being conceived of as an imposition, is conceived of as international solidarity with a legitimate right to establish the terms of its implementation. As these terms vary from NGO to NGO and from donor country to donor country, and as NGOs and countries have concentrated their interventions in different regions or provinces of the country, the heterogeneity of social policies assumes a territorial nature. The consequent fragmentation and segmentation emerges as the result of complex negotiations, not only between foreign and international NGOs and donor countries on the one hand, and the national, state, and provincial and district governments on the other, but also as the result of the unequal relationships between the foreign and international NGOs and the national NGOs, which, in the vast majority of cases, are financially dependent on the former and therefore subject to their conditions.

The institutional and administrative fragmentation of the state thus results, in many cases, from anarchic superimpositions that generate exclusion and complaints from all those involved. Thus, the district government complains if an international NGO decides to operate directly and autonomously in the community. The provincial government (the administrative level above the district) complains about the decision of an NGO to support a municipality directly, without channeling this support through it. One or more national NGOs complain if an international NGO coordinates its aid with the provincial government and does not include the national NGOs working in the area. Provincial and district governments complain if international NGOs have decided to support particular areas or communities “without plausible reasons.” Finally, international NGOs complain that the terms of their intervention are not defined by the national government, which means that they are seen as “parallel governments” when in fact they “only want to be partners.” These reciprocal exclusions fuel the abovementioned disjunction between political and administrative control and transform administrative control into an appendage of political control. This transformation, which may occur in other contexts, is here particularly intense, and its specificity lies in the fact that it often involves the three scales (local, national, and global) of both law and politics.

In order to put an end to the most extreme forms of segmentation and fragmentation in state action, the government sought, through Decree No. 55/98 of October 13, 1998, to establish some measure of control over NGO actions. Article 6, No. 4 establishes that “it is the obligation of the central organ responsible for the NGO activity to indicate the province in which it will undertake its activities, bearing in mind the need to apply the principle of equity to the development of the country,” and Article 2, No. 3 stipulates that “in the course of their activities, foreign NGOs are forbidden to undertake or promote any actions of a political nature.” This decree has not yet been put to a test, and it is not difficult to imagine the problems its implementation will involve.

In a situation involving great segmentation of state, legal, judicial, and institutional practices, official deregulation is always less far-reaching than it is declared to be and re-regulation much less homogeneous than it intends to be. In these circumstances, the legal and institutional unity of the state is precarious, and the state appears often to be a set of microstates, at varying removes from each other, some local and others national or transnational, and all of them bearers of composite and distinct operational logics. This is the condition that characterizes both the heterogeneous state and legal pluralism under conditions of globalization. The characterization of legal pluralism is presented in detail in the following sections.

I conclude the analysis of the conditions accounting for the Mozambican state heterogeneity and legal plurality by focusing on the disjunction of political and administrative control, that is, on the state incapacity to guarantee either the separation or the equal territorial penetration of political and administrative control, thus tending to politicize administrative control and exercise it selectively. This is one of the most persistent legacies of the colonial state in Africa and has intensified in the last two decades due to neoliberal globalization, especially in the countries that gained independence most recently, as is the case of the Portuguese-speaking African countries. The overdimensioning of political control in relation to administrative control is evident in Mozambique. In administrative terms, the state is still confronting the problems of modern state-building—among them, the problem of state penetration, that is, of its effective political and bureaucratic presence in the whole territory. This situation encourages the politicization of the administration—for example, with the difficulties in transforming the results of elections into the sharing of power. It is feared that sharing power will involve a loss of administrative control, which is always imagined to be in the service of political control.

The disjunction of political and administrative control also results in the fact that, in its everyday practices, public administration has no means of guaranteeing its own efficiency. It therefore resorts to whatever institutions are locally available, whether they are structures from an earlier period, colonial or revolutionaryFootnote ²¹—which, in spite of having been legally eliminated or superseded, continue to survive as both political and administrative entities—or whether they are the traditional authorities (Reference GeffrayGeffray 1990; Reference DinermanDinerman 1999; Reference ChichavaChichava 1999). These heterogeneous resources—which create a situation of bureaucratic bricolage—translate themselves in heterogeneous acts of administration caused by the coexistence of the formal and the informal, the official and the unofficial, the modern and the traditional, the revolutionary and the post-revolutionary. The following section illustrates some of these complex coexistences.

Entangled Legal Pluralities: The Community Courts as Legal Hybrids

In this and in the following section, I analyze some of the patterns of legal pluralism in Mozambique. As already indicated, Mozambican society is a vast and vastly differentiated social field of legal pluralism. Figure 1 gives a synthetic view of legal pluralism in Mozambique. In constructing it, I privileged the official/unofficial dichotomy. The pyramid on the left-hand side represents the official legal system, which includes 11 provincial courts and 90 district courts. The district courts are the lower courts and have more intense interactions with unofficial legal orders. In the unofficial legal orders, I distinguish three instances of conflict resolution, which, as the figure shows, are differently located within the continuum of official/unofficial. The first instance is the community courts, which I conceive here as a legal hybrid combining official and unofficial components; the second instance is the traditional authorities, and the third is a vast set of associations in which the religious associations, particularly the Muslim ones, stand out. In this section, I concentrate on the community courts.

Figure 1. Legal plurality in Mozambique.

There are no reliable data on the number of community courts and much less on the number of cases they handle. The number of judges varies from court to court, although a minimum of three judges is required to hear cases. In the courts analyzed, only 18 percent of the 144 judges are women. The judges, whether men or women, tend to be more than 40 years old. Even when they are replaced, recruitment does not, as a rule, alter the age group. However, particularly when the replacements are women, they do tend to be younger. In terms of occupation, the majority of the community courts' judges may be considered rural workers (most of them women), followed by those who are retired, craftspeople, or factory workers. By and large they handle cases relating to family matters, followed by theft, injuries, and physical aggression. There are also cases relating to debt, land issues, housing issues, and witchcraft accusations.

There are significant differences among the courts in the ways they operate, whether in terms of procedural or substantive norms. A few courts selectively adopt the styles, formulas, and language of official justice, with all the proceedings being registered in writing. In most cases, however, informality and orality prevail. Even in more formalized proceedings, the use of judicial formulas is combined with the use of common language, directly linked to the oral nature of the surrounding culture. In any case, the formality does not influence the decision. It seems, above all, to have the aim of creating an institutional distance in relation to the parties and of legitimizing the power of the court. All the hearings take place in a context dominated by rhetoric, that is, by common language argumentation. National languages predominate (there are more than 20 languages in Mozambique), and the court usually speaks in the same language as the parties, with no need for interpreters.Footnote ²²

In Mozambique, the community courts are the legal hybrid institution par excellence, particularly in what concerns the official/unofficial dichotomy. They are recognized by law—they were created by Law No. 4/92, of May 6, 1992—but their operation is not regulated by law, nor are they part of the official legal system (for instance, there is no appeal to the official courts from the decisions of the community courts).Footnote ²³ The decision to remove them from the judicial system was justified with the new conception of the rule of law introduced along with structural adjustment. The decision was in tune with the political atmosphere of the time, interested in eradicating from the state any remnants of the popular power institutions of the previous, revolutionary period. The community courts were thus left in an institutional limbo. Because they decide cases “with impartiality, good sense and equity” (Article 2, No. 2, of Law No. 4/92) but not according to law, they are not considered part of the judicial system. They should, however, become organs of justice “for the purposes of reconciliation or the settling of minor disputes” (Article 63 of Law No. 10/92, 1992) as a type of community justice for which there are words of praise in the law: “bearing in mind the ethnic and cultural diversity of Mozambican society” (Preamble to Law No. 4/92). The Preamble also states that the community courts will “enable citizens to resolve minor differences within the community, contribute towards harmonizing the diverse practices of justice as well as enriching rules, uses and customs and lead towards a creative synthesis of Mozambican law.” Being neither entirely official nor entirely unofficial, the community courts are a legal hybrid, both inside and outside of official law and justice.

Left in this limbo, the community courts have taken on the legacy of the popular courts, which have, in the meantime, been formally abolished. The law that created the community courts determined that the judges of the local and neighborhood courts (that is, the popular courts of the previous, revolutionary period) would continue to exercise their functions until the first elections for judges of the community courts were held. As there were no elections, the judges at the time kept their positions. Death, illness, war, and migrations caused the number of judges to be reduced over the years. Moreover, some judges left their posts due to the loss of social prestige attached to the position and the feeling of being “abandoned” by the government. In the absence of any regulatory law to define rules of recruitment, these replacements were made from within the same sociopolitical environment as that of the previous judges. The new judges were selected by neighborhood structures or by the direct intervention of the ruling party, Frelimo.Footnote ²⁴ For this reason, almost all the judges interviewed for this article said they belong to the Frelimo Party, and many of them also participate in party organizations. This hybridization between political and judicial functions is also at the root of the problems confronting the community courts. The fact that the community courts continued to operate very much like the popular courts (formally eliminated at the end of the revolutionary period) in terms of both personnel and premises has favored the adherence to the Frelimo Party. This fact has led to the political polarization of community justice, in that community courts are considered instruments of Frelimo and the traditional authorities instruments of Renamo, the main opposition party.Footnote ²⁵ This polarization reached some extremes when, for example, a group of judges, who are supporters of Renamo, decided to create a parallel community court in Mocímboa da Praia (in the northern Province of Cabo Delgado).

The judges interviewed resent the lack of support from the state: lack of basic stationery, lack of financial compensation for their work, lack of training or guidance on procedural rules, and a lack of solidarity on the part of the district courts to whom social cases are referred by the judges. In 10 of the 34 courts analyzed, there are not even enough judges to allow the court to function with its legal minimum quorum (two members in addition to the president). Other courts, although composed of three or more judges, are very often obliged to function without a quorum whenever one or several of the judges are, for some reason, unable to attend. The community courts operate at the same locations that the popular courts used to operate, which are usually quite precarious. Of the 34 courts observed, eight were held in the open air, and 18 functioned in locations offered by the local political organization of the Frelimo Party, by the local administration, or by the school director or the Municipal Council. Moreover, two courts functioned in the house of the judge that presided over the court, one on the porch and the other in the garden; only six courts had their own premises. Functioning in the open air gives the court a seasonal character. Whenever it rains, the activities of the court have to be interrupted.

Functioning in premises offered, in the majority of cases, by the local political organization forces the community courts to share the space, which affects the working hours of the court. In several cases, judges warned the parties or the witnesses during the trial sessions to keep to the timetable of the court because after that the room would be occupied “by others.” Moreover, sharing premises interferes in many other ways with the activity of the court as, for instance, when trials are disturbed by members of other entities sharing the same location (for example, the grupo dinamizador, the Frelimo Party, etc.) entering frequently to consult documents filed there, fetch papers, etc. The lack of their own premises prevents the community courts, in general, from having any space for their exclusive use to keep and file away their documentation. In 15 of the courts observed, case files and other documentation are stored in the house of the presiding judge or the secretary.

The hybrid character of the community courts does not limit itself to the legal/political or official/unofficial variables. It can be traced in each of the dichotomies that define the terms of legal plurality and also in the constellation of legal cultures (revolutionary, traditional, and liberal democratic legal cultures) present in the ways the courts operate. The extreme variety gives rise to a landscape of chaotic spontaneity. Lacking, in general, institutional support, and competing with other mechanisms of dispute resolution—ranging from the police and the local political cadres informally performing judicial functions to the traditional authorities and church organizations—the community courts rely on themselves and their skills for improvising, innovating, and, in the end, reproducing themselves. Some remain very active, while others are moribund; some beat the competition offered by other institutions involved in dispute resolution, while others are rarely resorted to by community members.

The palimpsest nature of the political and legal cultures in contemporary Mozambique mentioned in the previous section is most vividly illustrated in the legal reasoning and procedural style of dispute resolution in the community courts. Some courts function predominantly within an official, formal atmosphere whilst others assume an unofficial, informal character. Some operate within a revolutionary logic, placing political loyalty above everything else, while others have fully accepted the new times and the pragmatism demanded by communities mainly interested in peaceful survival. Some seek to affirm their autonomy in relation to the local administrative authorities (which are themselves a political-administrative hybrid), the religious authorities, and the traditional authorities, while others are totally subordinate to the administrative authorities and assume a multicultural character, resorting to the traditional authorities in many cases, such as when dealing with witchcraft or family problems.Footnote ²⁶ However, no matter which type of legal reasoning or procedural style predominates, it operates in complex articulations with other types or styles. In this way, varying according to the courts, the cases, the nature of the dispute, or the status of the parties, different “layers” of formalism and informalism, of revolutionary rhetoric and pragmatic rhetoric, of practices of autonomy and practices of networking are differently combined but always inextricably intertwined.

Finally, though most courts have no working relationship with the district courts, some do. In the revolutionary period, the district courts, then called popular district courts, were the bridges between the law courts and the popular courts, establishing both complementary and competitive relationships with the latter. This type of articulation continues today, however sporadically and informally. For example, the district courts make use of the community courts and the traditional authorities to ensure that court summonses are complied with. In the district of Mueda (Cabo Delgado Province), the district court and the community courts in the district capital maintain a stable relationship, which has progressed from the discussion of jurisdiction of the community courts to the joint definition of the sanctions to be applied in various cases and on the rapid handling of cases that are referred to the district court by the community courts. In addition, a form of “division of legal labor” has developed: family matters, for instance, are referred by the district courts to the institutions of community justice. According to one district court judge interviewed, these types of conflicts “are not for a judge to hear, but should be resolved within the family or in the neighborhood.” In this context, the police often take on the function of distributing litigation among the different institutions, according to the agreed-upon informal rules of jurisdiction.

Through this chaotic web of actions and omissions, of communication and noncommunication among different institutions, practices, and cultures, the community courts do contribute to “a creative synthesis of Mozambican law,” except that they do so under very precarious circumstances and indeed outside the law. The legal limbo has played against the community courts. A void has been created that has been filled by other mechanisms of social regulation, with the traditional authorities emerging as the most important of all.

Multicultural and Multiethnic Justices: The Case of the Traditional Authorities

Throughout this article, I have emphasized the multiple and culturally diverse instances of dispute resolution and community justice in Mozambican society, in both rural and urban environments. In addition to community courts, traditional authorities and social, cultural, religious, and regional associations function as instances of conflict resolution. The most important of the latter associations are the churches and, within them, Islamic organizations, which have been growing in influence in recent years. Because it does not recognize any strong distinction between the religious and the nonreligious, the Islamic faith tends to regulate social life as a whole. In the center and northern regions of the country, where the Islamic presence is historically more powerful, religious law has become an important component of legal plurality, particularly in family matters. This is a field of intense hybridization between religious law and traditional law. All this vibrant legal life occurs outside the official legal field, mobilizing legal and political cultures that have very little to do with the legal and political cultures underlying the official legal system. Legal polycentrism merges here with multiculturalism and, thus, with multicultural legal plurality. But of all the instances of multicultural legal plurality, the traditional authorities are by far the most important, not only because of their role in dispute resolution but also because of the political contention around them.Footnote ²⁷

In order to understand the political context in which the traditional authorities operate in Mozambique, it is imperative to locate it in the broader, African context. The traditional authorities are debated throughout the African continent. There are many themes to the discussion, and the following may be highlighted: the traditional authorities as local power and administration, the regulation of access to land, women and traditional power, witchcraft, traditional medicine, and the compatibility between traditional law and official law and, in particular, the Constitution. From the perspective of neoliberal globalization, the traditional authorities are the paradigmatic example of what cannot be globalized in Africa. From this perspective, what cannot be globalized is of no interest to neoliberal globalization and, as such, can be easily stigmatized as an African particularity, an obstacle to the opening up of African societies to the virtues of the market economy and liberal democracy. Yet what becomes the object of stigmatization may be reappropriated by the subaltern social groups as something positive and specific, as a source of resistance against an excluding global (Western) modernity. It is exactly this reappropriation and resignification that has begun to take place in the area of traditional power. Today, the recovery of the traditional in Africa, far from being a non-modern alternative to Western modernity, is the expression of a claim to an alternative modernity. Because it is occurring throughout Africa and indeed throughout the global South, it is a form of globalization that presents itself as resistance to globalization.

One of the most visible modernizations of traditional authority lies in the way that modern state elites seek out non-modern, traditional legitimacy to reinforce their power. However, this process also occurs in reverse, whenever the bearers of traditional power seek to promote their children or families to a political career in the service of the state, to consolidate and reinforce the traditional power they possess and see threatened by state competition. This double-edged power struggle can result in conflicts that are difficult to resolve. The ethical code of modern power is based on a distinction between public and private and on the primacy of common interests over sectoral interests. In contrast, the ethical code of ethnic power is based on community interests and relates to a community made up of both living people and their ancestors, in which modern distinctions make little sense. Thus, from the perspective of the modern political ethical code, a particular political or administrative action may be considered as corruption, favoritism, nepotism, patronage, or privatization of the state; but when evaluated from the point of view of the traditional ethical code it may be considered as the fulfillment of family obligations and the exercise of community or ethnic loyalties. The popular saying “The goat eats wherever it is tethered” illustrates this ambiguity or duality.

The question of how to articulate this dual legitimacy feeds one of the most intractable debates in Africa today.Footnote ²⁸ According to one argument, the two powers and the two legitimacies must be kept separate, even if they are conferred upon the same person. In other words, state political actions or actions within the public arena of modern civil society must be based exclusively on modern ethical codes, whilst community actions and rituals must be based exclusively on traditional ethical codes. According to another argument, this separation, even if correct—which is debatable—is impossible to sustain, given that individuals cannot keep their multiple identities watertight and “uncontaminated.” It is better, therefore, to assume that contamination and hybridization between codes is a “natural” condition.Footnote ²⁹

The rules for this dual-edged power game vary from country to country and according to the historical, cultural, and political context. In countries that are officially democratic, these conflicts must be settled by electoral means and according to the rules imposed by the political system in force. Nevertheless, it does happen that, due to the factors already mentioned, electoral legitimacy cannot sustain itself, leading to frequent reliance on community, ethnic, or traditional resources. Ethnic power can thus be manipulated so that in certain situations it functions as a threat and in others as an opportunity. According to circumstances, the political elites wrangle amongst themselves, either for the modern political path, using ethnic power as a resource, or for the traditional political path, using electoral power as a resource. Herein lies a fertile field for the proliferation of political hybrids that are structurally similar to the legal hybrids identified in the previous section.

In the history of Africa, this is not the first time that traditional authorities have been politicized or politically manipulated. This was also the case during the colonial period, particularly from the end of the nineteenth century onward. It is known that traditional authorities were used by colonial powers as a means of ensuring the abovementioned disjunction between direct political control and indirect administrative control. And indeed, the current situation in Mozambique shows a remarkable continuity with the colonial period. To limit myself to the twentieth century, the establishment of a dual, racialized civil society was formally recognized in Estatuto do Indigenato (The Statute of Indigenous Populations) adopted in 1929. The Estatuto established a distinction between the “colonial citizens,” subject to the Portuguese laws and entitled to all citizenship rights effective in the “metropolis,” and the indígenas (natives), subjected to colonial legislation and, in their daily lives, to their customary, native laws. Between the two groups there was a third small group, the assimilados, comprising blacks, mulatos, Asians, and mixed-race people, who had some formal education, were not subjected to forced labor, were entitled to some citizenship rights (a kind of second-class citizenship), and held a special identification card that differed from the one imposed on the immense mass of the African population (the indígenas), a card that the colonial authorities conceived of as a means of controlling the movements of forced labor (Reference CentroCEA 1998). The indígenas were subject to the traditional authorities, who were gradually integrated into the colonial administration and charged with solving disputes, managing the access to land, and guaranteeing the flows of forced labor and the payment of taxes (mainly the hut tax). As several authors have pointed out (Reference MamdaniMamdani 1996; Reference GentiliGentili 1999; Reference O'LaughlinO'Laughlin 2000), the Indigenato regime was the political system that subordinated the immense majority of Mozambicans to local authorities entrusted with governing, in collaboration with the lowest echelon of the colonial administration, the “native” communities described as tribes and assumed to have a common ancestry, language, and culture. The colonial use of traditional law and structures of power was thus an integral part of the process of colonial domination (Reference YoungYoung 1994; Reference PenvennePenvenne 1995; Reference O'LaughlinO'Laughlin 2000) obsessed with the reproduction of the super-exploitation of African labor.

In the 1940s, the integration of traditional authorities into the colonial administration was deepened. The colony was divided into concelhos (municipalities), in urban areas, governed by colonial and metropolitan legislation, and circunscrições (localities), in rural areas. The circunscrições were led by a colonial administrator and divided into regedorias (subdivisions of circunscrições), headed by régulos (chieftains), the embodiment of traditional authorities. Provincial Decree No. 5.639, of July 29, 1944, attributed to régulos and their assistants, the cabos de terra, the status of auxiliares da administração (administrative assistants). Gradually, these “traditional” titles lost some of their content, and the régulos and cabos de terra came to be viewed as an effective part of the colonial state,Footnote ³⁰ remunerated for their participation in the collection of hut taxes, recruitment of the labor force, and agricultural production in the area under their control.Footnote ³¹ Within the areas of their jurisdiction, the régulos and cabos de terra also controlled the distribution of land and settled conflicts according to customary norms (Reference GeffrayGeffray 1990; Reference AlexanderAlexander 1994; Reference DinermanDinerman 1999). To exercise their power, the régulos and cabos de terra had their own police force. This system of indirect rule illustrates what the disjunction between political and administrative control refers to above. It continued after the Indigenato system was abolished in the early 1960s. From then on, all Africans were considered Portuguese citizens, and racial discrimination became a sociological rather than a legal feature of colonial society. The rule of traditional authorities was indeed integrated more than before in the colonial administration.

After the independence, Frelimo took a hostile position vis-à-vis the traditional authorities conceived of in a broad sense, including régulos, healers (curandeiros), religious leaders, etc. Seen as obscurantist remnants of colonialism and as fomenting regional and ethnic differences, party members saw no place for them in the construction of a supra-ethnic state, a national culture, and a model of development aimed at liberating Mozambique, in a few generations, from the shackles of underdevelopment. The first Constitution of Mozambique, approved in 1975, declared in its Article 4 the “elimination of colonial and traditional structures of oppression and exploitation and the accompanying mentality.” Régulos were then replaced by the new political structures at the local level, the base-level party cells, the grupos dinamizadores (dynamizing groups). In tandem with the popular courts, they took over the functions previously entrusted to the traditional authorities.

The legal abolition of traditional authorities proved to be a complex political and social problem for the government in the following years. To begin with, there were no resources to deploy the new political-administrative structures throughout the whole country, and where they were deployed they were not automatically accepted by the populations. As a result, the traditional authorities continued to rule under different forms and conditions. Both the popular courts and the grupos dinamizadores resorted to them in search of guidance and legitimacy. In the process, some régulos became judges of the popular courts, deciding the cases on the basis of traditional law and justifying their decisions in terms of revolutionary legality. Another source of problems for the government came with the rise of Renamo. Renamo, which was initially credibly seen as a product of the South African secret services, gradually took roots in some regions of the country feeding on the frustrations of the populations with some misguided state policies and with the immense gaps between promises and delivery. Ostracized by Frelimo, the traditional authorities saw in Renamo an alternative to recoup their power and prestige. A bloody civil war throughout the 1980s further undermined the administrative and welfare capacities of the state and deepened the political polarization around the traditional authorities. Such polarization, combined with the state's docile compliance with neoliberal impositions from the mid-1980s onward, fuelled the process by which the traditional became a way of claiming an alternative modernity.

Since 1992, the government has been trying to address the issue of the politicization of base-level governance: community courts, seen as heirs of the popular courts and close to Frelimo, on one side, and traditional authorities, seen as a legitimate source of power and close to Renamo, on the other.Footnote ³² The government responses have been twofold. On the one hand, until recently, as I showed in the previous section, the government has seen no urgency to reformg the community courts. The reform is now under way, and it is an open question whether the new law of the community courts will be truly bipartisan and therefore likely to survive any changes in government in the future. On the other hand, the government has been trying to neutralize the hostility of traditional authorities, co-opting them by granting them some kind of subordinate recognition and participation in local administration in the rural areas.

The strategy of co-optation relies on the disjunction between administrative and political control. Decree No. 15/2000, of June 20, 2000, the Law of Community Authorities, illustrates the intention of the state to benefit from the administrative abilities of the traditional authorities and simultaneously to neutralize any centrifugal energy they might harness in terms of the political control of populations. As the preamble to the Decree states, the community authorities are recognized within the realms—and, therefore the limits—“of the process of administrative decentralization, bettering the social organization of local communities and improving the terms of their participation in public administration.” Article 2, in turn, establishes that

No political effect, particularly in terms of participatory democracy, is recognized in these processes of listening and interaction. Finally, Article 3 defines the limits of recognition that refer to the political Constitution and statutory law in general. The general limit is formulated in Article 3, No. 1, and No. 2 underlines the pragmatic and instrumental nature of the recognition of community authorities, since the criteria for participation are based exclusively on the “needs for administrative service.”

This recognition pattern and the politics underlying it bear a clear continuity with the colonial past, which is also visible in some of the rights and privileges conferred upon the traditional authorities: the use of symbols of the Republic, participation in official ceremonies, the use of their own uniform or distinctive clothing, and the receiving of a subsidy as a result of helping the state in collecting taxes (Article 5). The main difference in relation to the colonial period lies in the fact that the state sought to neutralize the traditional authorities not only through the strict separation between political and administrative functions but also through the integration of traditional authorities into a broader set of local government involving base-level administrative structures and even the political-administrative hybrids I mentioned above. The colonial state, on the contrary, emphasized the specificity of traditional authorities in order to justify the racialization of state and society. Specificity meant the natural inferiority of traditional authorities vis-à-vis modern colonial rule, of African culture vis-à-vis Western culture, and of indigenous peoples vis-à-vis colonial citizens.

In Mozambique and in Africa, in general, there are today two contrasting views concerning the specificity of traditional authorities: according to one of them, traditional authorities are one among several types of local authority and should be granted no privilege among various other types of authority existing in the same community; according to the other, the traditional authorities are not on equal footing with other local authorities, since they alone control the power of the spirits and the power of the ancestors, so decisive in the government of the community because of their access to rituals and the magical aspects of community life.Footnote ³³ The already mentioned Decree No. 15/2000 of June 20, 2000, on local community authorities, adopts the first argument. According to Article 1, “under the terms of the present Decree, the community authorities are understood to be the traditional chiefs, the neighborhood or village secretaries and the other legitimate leaders recognized as such by the respective communities.”

Below or parallel to this official politics of recognition and control flows an intense and chaotic web of interlacings among different legitimacies, local powers, legal cultures, and legal practices. While in the revolutionary period the popular courts and grupos dinamizadores sought the guidance and support of the traditional authorities and settled many disputes by resorting to them, even though they had been officially abolished, today the official patterns of recognition of traditional authorities and the “return to tradition” say very little about the traditional rule in action. Actually, this varies according to the region; the prestige of the régulo or healer; the relative penetration of the state institutions; the kinship relationships among traditional authorities, state administrators, and base-level party organizations; and, finally, the relative strength and implantation of alternative community structures of conflict resolution in community courts, Muslim organizations, churches, NGOs, etc. A meshwork of regular or sporadic interactions and negotiations is in place whose unfolding depends as much on the practice of the different institutions involved as it does on the initiative of citizens and social groups interested in turning to their advantage the existence of such competitive or complementary plurality.

Within this meshwork and plurality, the “return to the traditional” seems to have more and more appeal, particularly in rural areas where the vast majority of the population lives. A growing activism on the part of the traditional authorities has been identified, and the involvement of political or administrative cadres in traditional ceremonies has been accepted. Respect and mutual tolerance have grown. Although it appeared in the early 1990s that most of the traditional authorities were intervening only in religious or spiritual ceremonies as a way to promote peace (Reference AlexanderAlexander 1994; Reference HonwanaHonwana 2002), the situation today points to a broader intervention that is particularly sought for whenever the other local authorities are unable to resolve problems and conflicts.Footnote ³⁴ In these forms of cooperation, the abovementioned duality of traditional and modern legitimacies dominating law and politics in Africa surfaces very clearly, especially at the local level.Footnote ³⁵

This is the complex historical, social, and political context in which traditional authorities operate today as instances of conflict resolution. Among all the dimensions of legal pluralism in Africa, the traditional authorities and their law (traditional law, kinship systems, African customs, and customary law are some of the terms currently used) have for a long time been the most significant. What distinguishes the legal pluralism they promote is the saliency of the modern/traditional variable and the monocultural/multicultural variable. What is common to the different conceptions of the traditional authorities is the idea that these legal practices are distinct from the Eurocentric symbolic and cultural universe that underlies official law and justice. Traditional law and justice, therefore, raise two very complex questions: the question of what is traditional and the question of what counts as multicultural. Both of these questions are very widely debated issues today, and this debate is not only academic but also political. What is at stake is, once again, the relationship between the political control and the administrative control of populations and their territories, and particularly the question of the legitimacy of the power needed to secure either form of control.

As dispute resolution mechanisms, the traditional authorities are particularly important in issues of access to land, family, debt, bodily harm, damage to property, health/sickness, witchcraft, and petty theft—indeed a very broad range of issues. In all these matters, the traditional authorities are a key node in a network of institutions that may include the district or even the provincial courts, the police, and local political and administrative agencies. Sometimes they are the first venue sought for by the parties, while other times they function as appeal institutions, and in still other cases they provide advice or evidence in cases being dealt with by other institutions.

One of the great strengths of the justice provided by the traditional authorities is its immediate, public, collective, face-to-face, and relatively transparent character. The hearings normally take place in the régulo's house, porch, or garden. The frequency of these hearings varies. Certain days might be selected for the hearing, or hearings might occur when people solicit the help of the régulo. In the cases we observed, most of the régulos tend to hold hearings on the weekend, particularly on Sunday. The dispute resolution is dominated by rhetoric and orality, as in community courts. And as in the case of community courts, the language used is by large the local language of the parties, with no need for interpreters. The participation of the régulo and of his associates is central. In the regions surveyed, no case was found of a woman being a régulo. However, a significant number of women are traditional healers. Among the counselors of the régulo there are normally one or two women. The régulo (and occasionally his counselors or assistants) sit at a table, on a more elevated plane. The parties are seated on a lower level, either in the front or on the sides. The audience sits on benches or mats. The régulo leads the hearing. After the session is opened, the person issuing the complaint and the accused normally make their case. Because the sessions are open to the public, the members of the audience are normally invited to participate by presenting their explanations of the problem. This is a very important part of the process of conflict resolution. Indeed, adults are allowed to question witnesses and give their opinion on the case.

The régulo's counselors (madoda) also offer their appraisal of the conflict. When the case involves witchcraft accusations, the opinions of the madodas are important concerning the decision to appeal to healers or to AMETRAMO (the Mozambican Association of Traditional Doctors).Footnote ³⁶ At times the healers intervene and give a deposition.

Once he has heard and considered the problem, the régulo deliberates. In most cases, the régulo tries to obtain a consensus from both parties in order to maintain social equilibrium. Whenever an offense has been committed and must be punished, the main types of punishment are fines, community service, or corporal punishments such as head-shaving and chambocadas (flogging). Although prohibited by law, corporal punishment still appears to be practiced. Several régulos showed nostalgia for these sanctions: “In the old days the authority took action. The person was tied up and beaten. Now the authority can't beat people any more” (interview with the régulo Phata, Inhambane province). In the case of the regulado of Luís (Sofala province), there was a cell in the headquarters.

In the field of conflict resolution, the relationships of the traditional authorities with other local authorities are quite complex, not always free from conflicts or tensions. Forms of cooperation are also present: many régulos send matters of divorce to the community courts; serious crimes—such as homicide—are sent to the police.

This analysis shows that the traditional authorities are carving out their judicial and political space in the new legal and political framework, both when effectively implemented and when left to the indeterminate play of competing local legal and political forces. They are doing so using a vast array of means available to them, some ancestral and others very recent, but all of them used in modern competitive or complementary interactions with all the other nodes of a mixed, inherently hybrid regulatory network. Out of this network, new forms of democratic rule may be emerging, which call for careful analysis. Under the new laws that regulate the process of recognition and legitimization of “local leadership,” régulos and other community leaders may be required to secure the basis of their legitimacy through a broad process of popular consultation. By opening some space for negotiation in the choice of régulos, cabos de terra, madodas, healers, etc, this process, although incipient, includes elements of participatory democracy.

Conclusion

In this article, I have highlighted some hidden dimensions of the current global call for legal and judicial reform, namely the ways in which it seems to be operating as if the developing countries were a legal and judicial tabula rasa. The rich social experience of diverse legal and judicial practices thereby ignored is the main focus of this article. More specifically, I focused on the Mozambican state and society and on the rich landscape of legal pluralism that characterize them. I proposed the concept of the heterogeneous state to highlight the breakdown of the modern equation between the unity of the state, on the one hand, and the unity of its legal and administrative operation, on the other. I explained the most salient features of the heterogeneous state and of legal pluralism in Mozambique in terms of three major factors: the impositions of neoliberal globalization and their impact on the political and social processes; an African cultural heritage, the object of intense debates and with deep implications for law and politics; and the nature and role of the state, bearing in mind that the latter emerged from colonialism in the last quarter of the twentieth century. I tried to highlight the complexity of legal and political processes in a country that has been independent for less than three decades; that has undergone, in such a short period, a turbulent succession of contrasting political regimes and cultures; and that has suffered a bloody civil war for more than 10 years and since 1994 has been trying to consolidate a transition to a liberal democratic regime.

I expanded on the concepts of legal hybridization with the purpose of showing the porosity of the boundaries of the different existing legal orders and cultures and the deep cross-fertilizations or cross-contaminations among them. Among the many instances in which these conceptions could fruitfully unfold, I focused on community courts and traditional authorities. I reconstructed the multicultural legal plurality resulting from the interaction between modern law and traditional authorities as a multicultural legal plurality involving alternative modernities.

The future of the conditions accounting for the heterogeneity of the state and legal pluralism is tied to the future of the Mozambican state and society, as an encompassing process, and will tend to decrease in importance in any scenario in which the following developments will occur: democratic stability and sustained social and economic development able to break the cycle of successive political-institutional ruptures; deepening democracy so that political control and administrative control can develop with reciprocal autonomy; and an increase in the institutional and administrative ability and efficiency of the state, so that respect for the plurality of nonstate local and foreign actors involved in social intervention does not result in the fragmentation and segmentation of the polity.