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Legal Status of Indigenous Courts

Articles about diversion of certain matters to indigenous courts or acceptance by the criminal justice system of decisions made there.

Penal Reform International. Rapport de synthèse de monitoring et de recherche sur la Gacaca
Le programme de recherche mené par PRI sur les juridictions Gacaca au Rwanda depuis avril 2001 a pour objectif de fournir aux autorités nationales en charge du processus, dans un premier temps la 6ème Chambre de la Cour Suprême, puis aujourd’hui le Service National des Juridictions Gacaca, des données objectives en vue de soutenir la conception et la mise en oeuvre de ces juridictions. (excerpt)
Penal Reform International. Rapport de recherche sur la gacaca
During 2003 in Rwanda, a Presidential Decree ordered the provisional release of some categories of detainees. Around 22,000 persons were released from prison at the time. Their reintegration was achieved in two stages: first they spent some time in solidarity camps, and then they returned to the hills. To help prepare for the new releases being announced for the coming months, this report examines the conditions in which these two stages took place. (publisher's abstract)
Penal Reform International. Research on the gacaca – PRI
The fifth Gacaca research report covers the period from July 2002 to the beginning of 2003. This period was devoted to preparing for the Gacaca tribunals in Rwanda at cell level. As well as giving an overview of the development of systems such as compensation, community service and monitoring, the report also provides three local case studies. These cases show that the local situation, the local history of the genocide and the role of the local authorities are important factors to be taken into consideration in order to understand the differences between zones. (publisher's abstract)
Penal Reform International. Rapport de la recherche sur la gacaca – PRI
After the 1990 – 1994 genocide and massacres, more than 120 000 people accused of having taken part were put into prison. The importance of the litigation linked to this tragedy made it impossible to respect the principle of a reasonable period of remand detention for these prisoners. Changes in the penal laws authorised the detention of prisoners for a long period of time without a formal justification in their case for this detention. Indeed, a great number of prisoners at the time did not have files or if they did the files contained very few charges. In order to fix this irregularity the government and in particular the Public Ministry forced themselves to complete those files which were still empty or hadn’t had a proper prosecution file put together. The gacaca jurisdictions were set up- in part- with the aim of speeding up the judicial process and also use the confession and the guilty plea procedure which enables the accused to have a reduced sentence and to finish the second half of the sentence performing Community service. This confession procedure has become the cornerstone of the judicial system dealing with the genocide: all are encouraged to participate (except those, of course, who are innocent). (publisher's abstract)
Penal Reform International. PRI research on gacaca report
After the 1990 – 1994 genocide and massacres, more than 120 000 people accused of having taken part were put into prison. The importance of the litigation linked to this tragedy made it impossible to respect the principle of a reasonable period of remand detention for these prisoners. Changes in the penal laws authorised the detention of prisoners for a long period of time without a formal justification in their case for this detention. Indeed, a great number of prisoners at the time did not have files or if they did the files contained very few charges. In order to fix this irregularity the government and in particular the Public Ministry forced themselves to complete those files which were still empty or hadn’t had a proper prosecution file put together. The gacaca jurisdictions were set up- in part- with the aim of speeding up the judicial process and also use the confession and the guilty plea procedure which enables the accused to have a reduced sentence and to finish the second half of the sentence performing Community service. This confession procedure has become the cornerstone of the judicial system dealing with the genocide: all are encouraged to participate (except those, of course, who are innocent). (publisher's abstract)
Penal Reform International. PRI research on gacaca report
The introduction of the Gacaca jurisdictions is generally considered to be the major element in efforts to date to achieve national reconciliation and justice in Rwanda following the 1994 genocide. The enormity of the challenge faced by the national government in resolving the cases of thousands of individuals charged with offences related to crimes of genocide or against humanity, during a period when the country is struggling to re-establish economic and social normality inside Rwanda and peace in the whole region, cannot be underestimated. The purpose of this report, produced by the PRI team at Kigali, is to inform and advise the planning and practice of the Rwandan authorities charged with this responsibility and also provide the international community with the data necessary for them to gauge progress and developments in Gacaca programme activities. (publisher's abstract)
Gottlieb, Karen. Process and Outcome Evaluations of the Blackfeet Alternative Court.
This report presents the methodology, findings, and recommendations of an evaluation of the Blackfeet Alternative Court, a pilot program of the Blackfeet Tribe of Montana that provided substance-abusing tribal offenders with access to holistic, structured, and phased substance abuse treatment and rehabilitation services that incorporated tribal culture and tradition. The evaluation of the Blackfeet Alternative Court, which operated between January 1998 and September 2000, found no statistically significant relationship between completion status and recidivism; graduates were just as likely to be arrested for a drug or alcohol charge after leaving the program as were participants who were terminated from the program, fled the jurisdiction, or were in the program when it ended. Neither was there a statistically significant relationship between gender and recidivism; however, there was a significant amount of time before the majority of participants, especially graduates, reoffended. This suggests a decrease in substance-abusing behaviors with occasional relapses. In addition, the longer participants, especially graduates, spent in the program, the fewer the post-program charges. The court had a strong treatment component that included a full-time chemical dependency counselor, the integration of tribal culture into court actions during its last year, and a residential treatment center for families. The court also had a team committed to the wellness court concept. On the other hand, a series of setbacks (including core team changes, a judge who was not perceived as a team player, appellate decisions critical of Alternative Court procedures, and acceptance into the program of non-substance-dependent drug dealers) cumulatively undermined the court’s achievement of its objectives. The evaluation involved both a process assessment of the program’s implementation and an outcome evaluation of the 40 adult participants enrolled in the court during its operation, 18 who graduated (4 percent). (Abstract courtesy of the National Criminal Justice Reference Service, www.ncjrs.gov).
Sentencing Advisory Council. Sentencing in the Koori Court. Division of the Magistrates' Court. A Statistical Report.
This report, the first of two on the sentencing of Indigenous people in Victoria, presents a descriptive profile of the Koori Court. The Sentencing Advisory Council in its second phase of this project will aim to provide an in-depth analysis of Indigenous sentencing outcomes in both the Koori Court and the mainstream Magistrates’ Court.
Proietti-Scifoni, Gitana and Daly, Kathleen. Defendants in the Circle: Nowra Circle Court, the presence and impact of Elders, and re-Offending.
The first Indigenous sentencing court was established in 1999 in South Australia, and as of mid-year 2008, about 40 adult courts are operating around Australia. A growing literature has mapped jurisdictional variation, analysed the courts’ processes and outcomes, and attempted to estimate differences in re-offending compared to conventional courts. This Report presents the first qualitative study of how Indigenous offenders view the court process and the role of Indigenous Elders, with reference to the Nowra Circle Court in New South Wales, established in 2002. (excerpt)
Marchetti, Elena. Indigenous Sentencing Courts.
This brief focuses on Indigenous sentencing courts, which operate in all Australian states and territories except Tasmania. These courts have been established according to protocols and practices, and can be distinguished from more informal practices that occur in remote areas where judicial officers travel on circuit. The first court was established in Port Adelaide on 1 June 1999. Indigenous sentencing courts do not practise or adopt Indigenous customary laws. Rather, they use Australian criminal laws and procedures to sentence Indigenous offenders who have either pleaded guilty or been found guilty, but they allow Indigenous Elders and Respected Persons to participate in the process, thereby creating a more culturally appropriate forum for sentencing Indigenous offenders (Auty 2004). (excerpt)
Penal Reform International. Rapport de monitoring et de recherche sur la gacaca
This report focuses on community service, a sentence issued by the Gacaca Courts which can replace up to half of the prison sentence for those perpetrators of genocide who voluntarily confessed to their actions. Community service is intended to be an opportunity for the perpetrators to provide practical help and assistance to the victims and their families, thus encouraging reconciliation and peaceful cohabitation amongst the two groups. Drawing on extensive field research and testimony from all those involved in community service in Rwanda, this report highlights the successes but also several areas of increasing concern surrounding this innovative tool of reconciliation. (publisher's abstract)
Penal Reform International. Monitoring and Research Report on the Gacaca
This report explores the challenges faced by the Rwandan national authorities during the information gathering phase of the Gacaca process. (publisher's abstract)
Penal Reform International. Integrated Report on Gacaca Research and Monitoring
The goal of the research program conducted by PRI on the Gacaca jurisdictions in Rwanda since April of 2001 has been to provide objective data to the national authorities in charge of the process -initially the 6th Chamber of the Supreme Court and now the National Service of the Gacaca Jurisdictions- in an effort to support the design and implementation of these jurisdictions. (excerpt)
Penal Reform International. Research Report on the Gacaca
During 2003 in Rwanda, a Presidential Decree ordered the provisional release of some categories of detainees. Around 22,000 persons were released from prison at the time. Their reintegration was achieved in two stages: first they spent some time in solidarity camps, and then they returned to the hills. To help prepare for the new releases being announced for the coming months, this report examines the conditions in which these two stages took place. (publisher's abstract)
Penal Reform International. Rapport de la Recherche sur la Gacaca – PRI
The introduction of the Gacaca jurisdictions is generally considered to be the major element in efforts to date to achieve national reconciliation and justice in Rwanda following the 1994 genocide. The enormity of the challenge faced by the national government in resolving the cases of thousands of individuals charged with offences related to crimes of genocide or against humanity, during a period when the country is struggling to re-establish economic and social normality inside Rwanda and peace in the whole region, cannot be underestimated. The purpose of this report, produced by the PRI team at Kigali, is to inform and advise the planning and practice of the Rwandan authorities charged with this responsibility and also provide the international community with the data necessary for them to gauge progress and developments in Gacaca programme activities. (publisher's abstract)

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