In the vast literature that exists on justice in Africa, little meaningful attention has been paid to lower state courts, often called magistrates’ courts in common law countries and courts of first instance in civil law countries. To date, academic research on the continent has emphasized peoples’ distrust of, and lack of access to, local state juridical systems. Consequently, we know a great deal about why people do not use state services in the search for justice and redress, but we know very little about why people do use magistrate’s courts and their civil-law equivalents. Our paper explains why this academic lacuna has emerged, before exploring what insights we gain by filling it. We draw on our research in two magistrates courts where projects of statehood have been profoundly contested: Ntuzuma in South Africa and Gulu in Uganda. Research and findings are based on the authors’ long-term fieldwork in the respective sites since 2009 as well as two months of participant observation in both Ntuzuma Magistrates Court and Gulu Chief Magistrate’s Court, between 2016 and 2017. Observation of the full case-load of these courts was supplemented with semi-structured, in-depth interviews with members of the judiciary, prosecution services, legal representatives and civil society organisations; and with citizens involved in cases before the court. This included both claimants and defendants, where possible.
Our findings challenge the arguments of much of the literature surrounding Access to Justice policies. The latter suggests that procedural fairness arithmetically increases court legitimacy, which in turn increases the utility of these courts and engagement with them. Work on everyday statehood complicates this picture, as do our findings. The courts that we studied both had procedural flaws, meaning that work was often hampered by slow progress, poor documentation, and opaque decision-making. These factors are at once universal and idiosyncratic: they emerged in our research at the intersection of a particular case and a particular court but they are also identifiable in low-level courts across the globe. However, contrary to dominate assumptions surrounding procedural justice, these flaws did not affect the legitimacy or the utility of the courts in any simple, unilineal fashion. Rather, to understand engagement with courts, we find need to appreciate how people reconcile three factors: how they think the state should function; how they expect it to function and how they need it to function in any given instance. If we understand these trade-offs we can see how some people might utilize the courts despite their procedural flaws whilst others utilize them because of those flaws. Furthermore, we can understand how people might acknowledge the claimed authority of a ‘court-as-institution’ whilst denying authority and/or legitimacy of the ‘court-as-decision-maker’ in a particular case.