You Cannot Compare Apples to Oranges: Ubushingantahe vs. Criminal Justice

By: Josh Perry

The solidified rules of law present in the United States have been ironed out over the course of centuries; now, when students learn about the American legal system they learn codified rules, regulations, punishments, and resolutions. These overall norms work well for the United States, but can this work for other countries, for example Burundi? Burundi, a country located in sub-Saharan Africa whose history has been ravaged by ethnic conflict, should not have to conform to Westernized legal systems. Traditionally, Burundi has used a council of wise men, the Bashingantahe, to settle legal disputes.

Conflict resolution in Burundi was halted for decades due to the ongoing ethnic strife between the Hutus and the Tutsis. As the Burundian civil war continued, a British based organization named ActionAid helped to rebuild customary institutions that were destroyed by the conflict, and the Bashingantahe council, known also as Ubushingantahe, was one.  However, in 2000, the passage of the Arusha Accord settled the civil war, brought about peace negotiations, and formally recognized the Ubushingantahe as a conciliatory judicial mechanism. The members of the council (Abashingantahe or singularly Umushungantage) are not just chosen at random; instead, there are multiple qualities one has to have to become a council member. The qualities include, but are not limited to: experience and wisdom, holds love and truth in high regard, has a sense of honor and dignity, a developed sense of justice and fairness, understand the common good, and must balance action and speech.  The selection of these members is from a pool of the wisest men, and possibly women, in a village to settle disputes impartially.

The process of decision making in the Bashingantahe council is a different procedure because there are no codified rules to reference; as an alternative the members use each case as an opportunity to decide a new case, no two cases are alike. Hence why transitional or restorative justice programs in Africa are not supported by the United States, the basis is too fluid and antique to appeal to most. But when looking deeper into the intricacies of the Bashingantahe, one can see that the general principles behind the council are positive and appealing. Three important principles to take note of are the council’s: 1) neutrality, 2) equity, and 3) free social service.  Neutrality is exemplified by the council members weighing every side to an argument, then making the proper decision through wisdom; the equity of the council allows for anti-discrimination policies and inclusion based on ethnicities; and lastly, the council’s tasks are all done unpaid and usually there is no fee, on occasion a traditional beer, “agatutu k’abagabo,” is brought and shared after the resolution.

The question is how is it possible for politics and the Burundian criminal justice system not to interfere with the work of the council?” It’s simple, it can and it has! That goes for every country’s legal system; politics and corruption rear their ugly heads occasionally, but the real concern is for Burundians not to lose their traditional legal system (Ubushingantahe) to an adversarial criminal justice system. To the contrary, the two systems can work side by side to achieve social harmony and justice.  In agreement with Burundians who, during the democratization debates, said that Abushingantahe council was a base for political reform, Agnes Nindorera in Ubushingantahe as a Base for Political Transformation in Burundi goes further to say that Ubushingantahe is one of the keys to Burundian renewal today, along with family linkage. In fact, the strengths of the council include: social cohesion, order, peaceful resolution of conflicts, and reconciliation between individuals and families and a sense of nationalism, instead of ethnocentrism.  The council’s justice is that of proximity meaning that the disputants do not have to go to tribunals or police, instead the issues are dealt with locally among neighbors.  The Bashingantahe are an outlet for individuals delivering justice, neither through punishment nor repression, but through traditional legal approach and values.

It is hard for Western nations to see the benefits of this kind of institution, the logistics (no hard copy rule of law), and the different standards (no education requirements) because it does not have “Made in the U.S.A. or Great Britain, etc.” on the bottom”. However, instead of trying to contextualize and codify the legal systems of other countries, the United States and other Westernized nations should applaud and support efforts to use traditionally acceptable institutions. Specifically, the United States has based their legal system solely from tradition and had success; Burundi can have the same sort of success with support and respect. As the title indicates, you cannot compare apples to oranges no matter how much you want to.

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