Wartime offences, state impunity and the pressure to adjudicate

The Mozambican civil war between the Frelimo-led regime and the Renamo rebel movement was fought across the whole country, but rural areas were worst affected by the violence. According to the local dynamics of the civil war, the rural district of Gorongosa experienced the war from the outset. In around 1979, the Frelimo-led government army carried out large-scale counter-insurgency operations in villages looking for rebel forces (Renamo). Amid accusations that they were supporting Renamo, many civilians were captured and evacuated to re-education camps; others were tortured to death. The district was subsequently divided into areas controlled by Renamo and by the Frelimo-led army. Between 1981 and mid-1985, Renamo had almost complete control of the entire Gorongosa region. This hegemonic control shrank after the joint (Mozambican and Zimbabwean) government forces destroyed Renamo's military headquarters in Gorongosa. In the government-controlled areas, the soldiers, militias, secretários [Frelimo party officials] and civilian collaborators were in charge of security. Civilians (both male and female) were in general forcefully conscripted in “self-defence” to receive military training to defend their villages against Renamo strikes. It was no different in the Renamo-controlled areas: soldiers, mujiba [militias], some traditional chiefs and also some civilian collaborators took control. The borders of these Renamo and government areas shifted continuously and in both areas all kinds of horrors were perpetrated against civilians.

Although the civil war was part of the political violence between the Frelimo-led post-colonial state and Renamo, it took on a life of its own in the war zones. In the midst of the violence and insecurity of war, people continued to work in the fields, to get married and divorced, and to carry on their business. Some sort of social life survived to a certain extent.Footnote ¹⁶ However, the devastating effects of war permeated these social relations and led to numerous detentions and acts of torture, and the murder of kin and neighbours. A severe drought and famine only aggravated the wartime suffering and conflicts. These violent experiences left profound and unresolved conflicts in families and within communities in general, which did not simply disappear with the AGP and passage of time.

Law no 15/92, which was enacted to circumvent dealing with unresolved wartime crimes, did not succeed in forcing survivors into silence and oblivion. The amnesty law gave rise to serious tensions at the epicentre of the civil war. Interestingly, severe tensions about the past also permeated relations among the Mozambican political elite.Footnote ¹⁷ Serious war-related disputes continued to shape relations between survivors in Gorongosa, and some of them brought their wartime conflicts to the traditional courts so that the judges could adjudicate. Initially, the traditional judges refused to deal with such cases because they were aware that they lacked a legal mandate to settle them. Yet they felt so overwhelmingly pressured by survivors to find peaceful resolutions, that they actively revisited the horrors of the civil war. To understand why some survivors ignored the amnesty law and persuaded traditional judges to adjudicate on wartime offences, and to comprehend the changing and amorphous responses of the judges during adjudication, there is a need to bear in mind the existence of multiple rule-making systems and consider some of the features of political and legal pluralism in Gorongosa.

Features of political and legal pluralism in Gorongosa

Gorongosa society is founded on patrilineal kinship, polygyny and an agricultural system of production. People live in villages scattered over a vast area. Managing the territory is the responsibility of a traditional chief known as nhakwa Footnote ¹⁸ and his subordinates. This traditional power to exert control is shared with structures of the state apparatus. The traditional chiefs ascend to power through family inheritance although often there are fierce struggles, sometimes involving violence, among the potential successors to lead the chieftaincy. The traditional chiefs in Gorongosa have authority to safeguard their ancestral land and control the people within their territory.

From an historical perspective, the traditional authorities in Mozambique cannot be understood without analysing the metamorphosis brought about by Portuguese colonialism, the Frelimo-led liberation war, the Frelimo-led post-colonial state, the civil war between the Frelimo and Renamo, and the current politics of pluralistic democracy. These different trajectories have been extensively covered in the literature.Footnote ¹⁹ As a result of the AGP arrangementsFootnote ²⁰ and the promulgation of the Decree Law (15/2000) of 20 June 2000,Footnote ²¹ the administration of community affairs was legally formalized under the name of community authority. Based on longitudinal participatory research, this article only describes some of the characteristics that allow a better understanding of how traditional judges came to participate in an amorphous way in the adjudication of wartime abuses and crimes.

As is the case in many African societies, the Gorongosas live in a political and legally pluralistic society.Footnote ²² Legal pluralism is constituted by institutions of the state, and traditional and Christian religious groups.Footnote ²³ The state justice system is locally represented by the district court, the recently established office of the public prosecutor, the police and the prison. With the exception of the police, which in recent years has expanded its representation to the level of administrative posts, the state institutions are only located in the district capital. This means that, in many villages in Gorongosa, traditional legal agents offer redress in the majority of conflicts. As a result of state reform, some aspects of the traditional justice mechanism were legally recognized through Law No 4/92, which was termed the “law of the community courts”, as it created the “community courts”. The longitudinal research approach revealed that, until the mid-1990s, judges in many traditional courts followed the principle of presumption of innocence by clapping their hands every time the litigants and defendants talked. Nowadays this practice is used less systematically. Often, the procedure is based on the presumption of guilt. Despite this difference, many of the other procedures are still used. This means that the principles of the local ethics of reciprocity and the modus operandi of the community courts generally do not differ substantially from those of the traditional courts. The terms traditional courts and community courts are therefore used interchangeably in this article.

Human behaviour is organized by mutemo [rules]. The local ethics of reciprocity are shaped by rules established by spirits and customs of the living, Christian religious rules and state laws. The rules of the spirits and the customs of the living determine the seriousness of a breach and the type of resolution that should be followed. Cases involving blood and killing, or cases in which victim(s) died without justice, are considered unforgivable unless there is a resolution. The rule is that micero ai vundi [a conflict does not go away until it has been redressed]. The judges are very sensitive to this rule, and it mobilizes them to intervene. This rule is connected to the idea and practice that the spirits, which are particularly male, are considered to have a will of their own to the extent of autonomously intervening to right past wrongs. The spirits of dead victims severely afflict the alleged perpetrators or their relatives until the living find a fair resolution to the conflict. A similar rule in which spirits also intervene to create justice is through a practice called ku pikirira or ku temerera [a dangerous curse]. Locally it is believed that the moment of the curse's enunciation automatically unleashes the invisible process that culminates with its material realization. According to the local ethics of reciprocity, this type of verbal threat is illegal but people still use it to force offenders to right their wrongs.

Unlike the spirits' rules, which require redress at any cost, the rules of the living are flexible in that different bargaining strategies can be used, including demanding an apology, to resolve disputes. There are rules to resolve various types of conflicts: debt; bodily harm; damage to property; health/sickness; witchcraft; and petty theft.Footnote ²⁴ Traditional courts in Gorongosa also deal with conflicts over breaches of a verbal contract, incest taboos and public modesty, sexual assault, divorce and custody of children, extra-marital sexual relations, locking of a women's vagina with rucaro [medicines] to create rucaro [disease] on sexually unfaithful men, jealous relations between couples, the illicit deflowering of young girls, domestic violence, defamation, and abuses of power by the authorities. On many occasions, these rules are applied elastically. In situations where defendants do upoca [refuse systematically to accept culpability], judges transfer the case to a traditional healer called a paza. These healers, who are always men, are specialized in unveiling facts in cases shrouded in secrecy. The rules of the living do not admit revenge whereas, according to the spirits' rules, reciprocity for past wrongs comes closer to being understood as revenge unless the culprit admits wrongdoing and pays the required compensation. During adjudication, traditional judges take into account these rules and are expected to be nhampena [impartial].

Until the mid-1990s, the resolution of conflicts initially took place within the household. When conflicts were mediated within the household, people called this resolution ku gara pance [sitting down to conciliate]. If consensus could not be reached, litigants would take their case to the traditional courts where watonguis [judges] would adjudicate. As a result of the civil war, which seriously disrupted relations of trust within families and neighbours, people became unable to resolve conflicts among themselves. Consequently, many villagers in Gorongosa considered the traditional courts as the principal institution for the adjudication of conflicts. The courts are generally made up of older male judges; more recently, younger men have also been working there; very few women work as judges. In the course of this research, the author met only six female judges in all the different research locations. The presence of female judges was explained in terms of the Frelimo's post-colonial reforms on gender relations. It was also said that the female judges were necessary because of the existence of gender-related conflicts, which require separate intervention by female judges. Gender divisions are markedly evident from the beginning: men and women sit in separate places. Yet, during the court proceedings each individual, regardless of gender or age, has the right to speak. The gender bias results from family laws on marriage, divorce and the custody of children. These gender inequalities have also impacted upon the resolution of wartime conflicts.

The modus operandi of the courts is a combination of procedural,Footnote ²⁵ restorative and retributive justice. Each individual represents him or herself, while kin and community members take part too, and sometimes the audience is invited to intervene. This procedural feature of the case presentation in the courts turns a mastery of rhetoric into an important resource during court proceedings and creates room for the display of individual creativity in the use of language to persuade the judges. Although people's narrative of the events follows a similar structure (outset, development and end), people often define and narrate problems in their own terms to establish the full context of the breach. The description of the context of the breach often includes too many details. The presentation of numerous details is aimed at convincing the judges that the litigant is confident of his or her position.

When culpability has been accepted, judges generally ask the injured party to determine the form of reparation required. The judges, in turn, determine the punishment if they regard the infraction as serious. Finally, the chief judge advises the cultivation of understanding and forgiveness in the litigants' homes. The injured party and the guilty party are urged to shake hands in front of the court. Such organizational and procedural features of the traditional courts give these institutions legitimacy and influence war survivors' decisions to request the services of these courts to adjudicate on wartime offences. However, the state amnesty law has represented a constraint for traditional court judges. In fact, in the various cases that the judges received, they initially refused to adjudicate on these disputes. It was through the strategies deployed by the war survivors that the judges occasionally engaged in “justifiable disobedience”Footnote ²⁶ and on other occasions complied with the state amnesty law. These dynamic responses contribute to the understanding of how justice has been created or denied for wartime disputes.

Case one: Saquina v Bernardo

Case one came before the courts in June 2006 and concerned a debt resulting from a failed marriage during the civil war. However, as the resolution unfolded through the procedural form, it became clear that there was more than debt alone involved. The case includes robbery, torture and assassination, perpetrated not only by Renamo soldiers but also among neighbours. The dispute is complex as it involves several people, some of whom are already dead and some of whom died while the case was still unfolding. The people directly involved in the case are Saquina and Bernardo. When Bernardo was growing up, his father decided to arrange an engagement between Saquina's daughter Merita (who was murdered during the civil war), who was still young at the time, and Bernardo. Bernardo's father poured money into Saquina's family because of Merita's engagement. Independence came in June 1975 and a year later the civil war began. With the start of the civil war came famine, death and forced migration.

Due to extreme famine, Merita and her father appropriated some food from Quereva's farm. When Quereva, who was a traditional chief, discovered that the thieves were Merita and her father, he responded by torturing them. Quereva decided that, to resolve the conflict, Merita would marry his son. However Merita was already engaged to Bernardo, although he and his father had been forced to migrate because of the war. Since Merita's father was dying as a result of the famine and the torture to which Quereva had subjected him, the family accepted Quereva's order in an attempt to save his life. Merita therefore married Quereva's son. In the meantime, Merita's father, who had never recovered from the violence inflicted by Quereva, died.

Similar abuses and crimes perpetrated by Renamo soldiers in complicity with Quereva continued throughout the civil war. As a result of such complicities, Merita was tortured and killed. The war ended in 1992, but this particular conflict did not. Merita, her father and Bernardo's father were all dead and the only living persons directly involved in this case were Saquina and Quereva. 14 years later, in June 2006, Bernardo returned to Gorongosa where he visited Saquina and demanded his fiancée, Merita, or the repayment of his deceased father's money. Saquina told him that Merita had been tortured to death in the war. Bernardo then demanded his father's money, otherwise he threatened “my father promised that his spirit would finish all of you off one by one”. Such a threat is called ku pikirira or ku temerera. With the exception of the official courts, all the traditional courts in Gorongosa have jurisdiction over issues of ku pikirira.

When Saquina reported the case in the traditional court, she did not dismiss Bernardo's allegations. However, she brought Quereva into the conflict, arguing that he was the main person responsible for the loss of Bernardo's fiancée. She told the court what Quereva had done during the civil war because of the theft of six corn cobs from his field. Saquina said in court that she wanted to pay Bernardo back but that Quereva also had to repay his debt to Bernardo. Saquina appealed to the judges to convince Bernardo to reduce the amount of money that he was asking to repair the wartime damage and to wait a little longer until she could gather money through the selling of her cotton crop. Finally, she demanded that the ku pikirira be undone.

The judges heard the case. Soon they understood that this was a wartime conflict involving fatal denunciations, torture, murder, famine, debt, false promises and the spirits of the dead. Initially the judges tried to dismiss the case by saying that the state amnesty law and national reconciliation did not allow the court to deal with civil-war conflicts. Bernardo became infuriated and launched an abusive verbal attack on everyone present in court. “What reconciliation? … Who are you to challenge the orders of the spirits?” Bernardo went on to say that the government and its laws were meaningless to him: he was defending the honour of those who had died without justice and he was also trying to shield himself from the revenge of the spirits. He said that his father had died unhappy because Saquina and her kin owed him money. Bernardo needed the money back to settle accounts and perform a ceremony for the spirits of his deceased father.

Based on these verbal exchanges conjoined with the presence of spirits, the judges thought that the amnesty law would not foster peace so they engaged in justifiable disobedience and adjudicated in this case to preserve peace. They began hearings, but the court was not logistically prepared to deal with the complexities of this case properly. The judges had to omit many of their basic procedural norms. Bernardo insisted that reconciliation could only occur once he received the money. When the judges demanded that Quereva respond regarding his involvement in abduction, torture and the killing of a person for taking six corn cobs, he did not deny his actions. Instead he argued that this case involved more than six corn cobs, and refused to pay anything.

The judges asked Bernardo to reduce the amount of money he was demanding. Initially Bernardo adamantly refused to do so, only agreeing to wait until the cotton crop was sold. Two months later, when the time to sell the cotton was approaching, the court summoned Saquina and Bernardo. But by this time Quereva was dead. Nobody claimed that spirits had killed Quereva as a result of his persistent refusal to cooperate in redressing serious past wrongs. However, for Saquina, his death was confirmation that this case had to be resolved to appease the spirits.

The judges persuaded Bernardo to reduce the money because Saquina did not have close kin to help her settle this debt. The author also tried to convince Bernardo to reduce the money because of the burden that Saquina was already going through, but he was initially not very responsive. He was visibly consumed by a thirst for justice. However, following systematic counselling, Bernardo agreed to reduce the sum that Saquina had to pay on behalf of her dead. Saquina continued to search for the money required to pay him and Bernardo promised to appease the spirits of his deceased father so that everyone could live in peace and communal life could be restored.

Case two: Sozinho v Tobias

Case two was presented to the court in July 2007 and involved two erstwhile Renamo collaborators and a civilian survivor of the war. All were living in the former Renamo-controlled war zone. Tobias had worked for Renamo's recognition forces (military espionage), Sabão had worked as a mujiba and Sozinho was a civilian. Tobias said that he had given up working for Renamo before 1986. Yet, in 1986, government troops captured Tobias and Sabão and sent them to prison: Tobias was severely tortured, to the point of death, and still bears the scars on his back and arms. While in prison, Sabão told Tobias that Sozinho had been the person who had disclosed Tobias's identity to the government troops. When the war was over, Tobias remained silent and tried to forget his traumatic experiences through his pastoral work in a Pentecostal church. However, it was impossible for Tobias to forget, because he could not perform physical work properly as a result of the torture he endured. Tobias considered Sozinho's offence of disclosing him to be unforgivable, yet he still continued to be a neighbour of his alleged denunciator and, surprisingly, he had even allowed his daughter to marry Sozinho's nephew.

One day a conflict broke out between Tobias's daughter and her husband (Sozinho's nephew) and this triggered the latent dispute between Tobias and Sozinho. Tobias told Sozinho that his reaction was a pattern of very serious wrongs that had started during the civil war. Tobias demanded a girl as reparation for the damage he had suffered during the war. Sozinho refused, saying that he had not denounced anyone during the war. Then the conflict reached a climax. Tobias did ku pikirira: “when I die you will pay me a girl … when I die you will see what will happen to you!”

Instead of engaging in a fight as a response to this threat, Sozinho rushed to the traditional court, which was three hours away from his house, to report the offence. Sozinho stated that he wanted financial reparation because Tobias had defamed him in front of all his neighbours. The judges did not dismiss the case; they considered the peril of ku pikirira and the fact that the conflict appeared to be on the brink of bloodshed. They arranged a hearing at which Sozinho and Tobias were requested to be present. To deal with a ku pikirira case, the judges wanted to know why Tobias did ku pikirira on Sozinho. It was at these initial hearings that the judges realized that the ku pikirira was enshrouded in a serious dispute dating back to the civil war. The judges demanded Sabão as a key witness. During the second set of hearings, Sabão confessed that he had lied to Tobias in prison about Sozinho having denounced him.

Even though his wartime source of information contradicted his initial information, Tobias still insisted that Sozinho had indeed denounced him. Tobias thought that Sabão had been bribed to lie in court. To exert agency in the court and without the judges' permission, Tobias took his shirt off to establish communication through his naked body. He started pointing to the scars on his body with his finger to show the results of the torture. “This [pointing to the scars] is Sozinho”, he said. These scars were an indictment of the government troops' use of torture to extract strategic information from alleged Renamo collaborators. Yet Tobias did not focus much on this dimension of the wartime legacy in his body. Tobias specifically wanted to convince the judges and everyone present in the court that Sozinho was the main person responsible for his torture and near-death. Tobias affirmed that the evil that he experienced was unforgivable unless Sozinho paid him with a virgin girl. Everyone was shocked and confused, but not because of the demand of reparation through a virgin girl: this type of reparation is not alien to the Gorongosa people and nowadays happens with some frequency during conflict resolution through traditional medicine and less in traditional courts. The participants were astonished because of Tobias's equation of Sozinho with the scars on his body. The issue was that Tobias had not used the usual phrases such as “these scars are the result of Sozinho's denunciation”. Instead and unpredictably he said that the scars were Sozinho: parts of Tobias's body were Sozinho. This line of argument, which conflated the torture with Sozinho, suggested to the judges and the general audience that Sozinho was perhaps a horrible man. The argument was meaningful not because of factual evidence of Sozinho's culpability but because of the idea of Sozinho, a living person, being embodied in Tobias's body. The judges needed time to think about this case and, to cool their heightened emotions, they adjourned the trial.

Two weeks later, the judges reconvened and decided that the conflict should end without payment. Sozinho objected because he feared that the public would attribute a different identity to him: the identity of a someone who had betrayed neighbours during the civil war. Sozinho also objected to the dismissal of the case because the ku pikirira that Tobias had cast on him remained hanging over him. Sozinho argued that he had been falsely accused and defamed and, as a result, he insisted on being paid. In the meantime, the judges were informed that Sabão had died. The judges ruled that nobody would be paid because this conflict was related to the civil war, and the amnesty law did not allow the making of financial reparation in unresolved wartime disputes. The judges also insisted that Tobias and Sozinho should swear in public that they would not resurrect this sort of conflict because these conflicts were supposedly “buried” on 4 October 1992. Following the judges' instructions, Sozinho only demanded an apology from Tobias. The demand for apologies was fulfilled, the case was closed, and the neighbours continued to live side by side. Although Tobias enacted an apology, he did not agree with the judges' decision. However, he felt that his case had at least been publicly presented and “if the coal does not burn it makes you dirty”.

Case three: Isabel v Duarte

Case three was also brought to the court in July 2007. The last case involved Isabel and Duarte. During the war, they had been living in Renamo-controlled areas. They were both young when they married. When Isabel was nine months pregnant, their lives were disrupted by gandira [compulsory transportation by civilians of Renamo's supplies to far distant places]. Like many other men living in the war zones, Duarte was suspicious that during gandira his wife Isabel had had sex with Renamo soldiers. He got extremely annoyed and started accusing his wife of being uputa [a prostitute], but she denied it. His wartime neighbours whispered to him that his wife had indeed been entertaining various Renamo soldiers with sex; they even told him that his wife did not select the soldiers, but just went to have sex in the bush with any Renamo soldier she met. Duarte became even more outraged and once he dared to stop his wife from doing gandira. Renamo soldiers accused Duarte of being jealous and wanted to kill him. Duarte escaped to another area to save his own life. Isabel denied the accusations that she had sex with Renamo soldiers of her free will. Instead she affirmed that Renamo soldiers raped her on two occasions, although Renamo soldiers used to say that, if ever they had sexual intercourse, they were going to be hit by bullets. Isabel described how much she suffered because of gandira; once Renamo soldiers took her to carry chickens to the far border between Mozambique and Zimbabwe. Once Isabel tried to run away in the middle of gandira, but she was recaptured; as a result she said that she was tortured. Yet what mattered most for Duarte was his idea that Isabel used to have sex with Renamo soldiers. In the meantime, although it was Duarte who deflowered Isabel he never paid mabatiro [money paid for breaking the virginity of a girl through marriage ceremonies or without it] to Isabel's parents. Isabel was left alone and pregnant, but she managed to find another husband who helped her to raise her little daughter.

The war ended. Isabel's daughter managed to survive and grew up. When she reached the age of 12, Isabel accepted a young man's proposal to marry her daughter. That is when Duarte reappeared on the scene. He claimed that he wanted his daughter back, the daughter that he had abandoned when she was still in her mother's womb in the war. Isabel was outraged because she had suffered raising their daughter alone and now in this post-war period Duarte wanted to take their grown-up daughter. Duarte did not even mention the mabatiro he still owed her parents. Therefore, Isabel took the case to the court in an attempt to prevent Duarte from taking their daughter from her. In order to eschew interfering with the state authorities on the amnesty law, the judges in their reasoning were not interested in exploring the causes that led to the emergence of the conflict. Yet, without exploring the case, the judges could not form a convincing rationale to deal with it. Initially they were only interested in the description of events; hence they did not accept the arguments that Duarte presented for abandoning his pregnant wife in the war. They did not want to know who the alleged soldiers were, who had had sex with his ex-wife, or who had also threatened to kill him; they were not interested in hearing about the circumstances that led to Isabel's suffering during the civil war; they did not show such concerns. However, the judges had to hear the origin of the case, and through that, the details of the civil war were brought to the court. The judges and the audience were exposed to the extreme abuses to which Isabel had been subjected and the fact that she had raised their daughter alone in the midst of the civil war. In his turn, Duarte also presented his experiences of exposure to abuse and difficulties, and his escape to save his life.

After hearing the case, the judges ruled that Duarte did not have full rights over his daughter. In order to obtain these rights he would have to abide by the local laws that regulate marriage, divorce and custody of children. Duarte was deemed wrong simply because of his failure to follow the laws on these family issues. That was not what Isabel had expected to hear from the judges. She had thought that the details of violence that Duarte had inflicted on her as well as her victimization by the Renamo soldiers, would convince the judges that Duarte was in all aspects wrong. Therefore, Isabel wanted the judges to rule out the possibility of Duarte gaining custody of their daughter. Moreover as an aggravated punishment, Isabel thought that the judges would compel Duarte to pay his past debts. Instead, the judges focused on the violations of family law. Since this is a patrilineal society, the laws in question state that Duarte had to pass money to Isabel and her parents in order to regain custody of their daughter. This did not mean that, from then onwards, Duarte was going to share parental responsibilities with Isabel. Payment would mean that Duarte had, from then on, full rights over his daughter whom he had previously abandoned. Following local law, Duarte gave money for Isabel and then took their daughter away from her. However, he still did not pay the ku lola [money for the parents as a result of the daughter's delivery of children]. Duarte promised to do so but failed to. Once Duarte had taken their daughter to his home, he started to turn her against her mother saying that her mother was a wartime prostitute and that she had conspired with Renamo soldiers to murder him. As a result the daughter decided never to visit her mother again, the mother who had raised her during the civil war. Thus Isabel lost during the war and lost after the war as well.

Although during the court proceedings both Isabel and Duarte had equal opportunities to voice their versions of the case, the local family law that the judges used to reach a verdict did not treat both on an equal basis. Initially the judges did not seem concerned with the outcome. In informal meetings, the author told the judges that the way in which they had approached this conflict was uneven: the laws they used, and their own reasoning and practice in this case, protected Duarte's interests to the detriment of Isabel. A strict application of the traditional laws on child custody was unfair to Isabel because of the specific circumstances in which this conflict had emerged and had evolved. The judges were not happy to hear that, but they recognized that there had been a failure because they had not seriously considered that Duarte had been jealous and violent towards Isabel during the war, that he abandoned her during her pregnancy, and that Isabel had raised their child alone. In addition, an even more compelling reason to protect Isabel was that the child had created stronger bonds with her mother than with the father whom she had never seen before.

The judges heard Isabel again and sent out a summons to bring Duarte back to the court. However, Duarte never agreed to return to court and Isabel did not insist upon getting a different resolution to her case. The author understands that Isabel expects that one day her daughter will change her mind and return to her or at least visit her; instead of depending on Duarte, Isabel herself was going to work hard in order to earn the money to pay back her parents who had died without receiving ku lola. She insisted on paying back her own parents because micero ai vundi [this misdeed was unforgivable] unless Duarte cooperated to resolve it. She thought that, in case she died without properly dealing with the ku lola of her child, this problem would be transferred to another generation (ie Isabel's daughters with her new husband) and they would suffer from it.

Analysis of the cases

The three cases described above and others, which due to limited space could not be presented here, demonstrate that the state amnesty law has not ended struggles over justice for wartime disputes.Footnote ²⁷ Some civil war survivors use the local ethics of reciprocity and display different subjectivities and agency to attain justice for serious abuses and crimes committed during the civil war. Their concerns with accountability differ from those of the Mozambican state, which granted a blanket amnesty for wartime crimes. This disjuncture between the needs of some survivors and of the state in matters of transitional justice is consistent with the results of Richard Wilson's study in post-apartheid South Africa.Footnote ²⁸ It demonstrates that, from the perspective of state-in-society relations and the corresponding semi-autonomous social fields, state legislation may not generate the expected performative effects because “law and legal institutions mean different things to different people”.Footnote ²⁹

There is no doubt that the existence of the state amnesty law and its adoption by the judges in traditional courts have shaped the contours of the fight against impunity locally. Yet the judges' adoption of this law was not based on a belief that the state amnesty law was the best way to handle, with transparency, the legacies of the Mozambican civil war. Following Robert Cover,Footnote ³⁰ it can be argued that, between the litigant war survivors and the judges, the latter were more conscious of the sphere of autonomy and the objective reality of the other (state), the normative boundaries and the implications of violating these boundaries. State officials did not take part in the resolution of the cases described here; it was only the knowledge of state law and the risks of disobeying it that shaped the shifting actions and reactions of the litigants and judges.Footnote ³¹

One of the conundrums that judges have faced during the adjudication of wartime conflicts has been that, by adhering to the state's amnesty laws, the judges were simultaneously neglecting the local ethics of reciprocity. This disregard of local values and practices on matters of reciprocity for past wrongs could undermine one of the courts' main sources of legitimacy. However, even when the judges did abide by the amnesty law, they first had to hear the cases to determine whether they had a mandate to adjudicate. Procedural justice, which locally is a key feature in building evidence in the resolution of disputes, created room for superseding the amnesty law and the judges themselves. Through the courts' procedures, litigants publicly narrated experiences of wartime abuses and crimes that they and their kin had experienced. All these cases demonstrate how the procedural features of traditional courts make it difficult to control what is said in court and to adhere strictly to the court's jurisdiction. In addition, when a litigant presents a case, the judges never stop to ask about the relevance of referring to a certain rule or to include a particular detail of the case. Consequently, from the prism of procedural justice, legal pluralism is an intrinsic feature of traditional courts in that the litigation of one case can be fashioned by multiple legal sources. This corroborates the idea that, in certain semi-autonomous fields, legal institutions are “internally pluralist, although the degrees and types of pluralism may vary”.Footnote ³²

Each time a war-related dispute was presented in court, the litigants and judges deployed strategies that on some occasions converged and on others diverged. When the wartime conflict was shaped by the presence of spirits and ku pikirira practices, the litigants and the judges converged in some way to dismiss the amnesty law. In other cases, the litigants and the judges both used the amnesty law to block the paying of reparation for wartime damages. In yet other cases, the judges strictly applied traditional laws that were inimical to defending women's interests. These differing strategies are consistent with the idea that “in the context of legal pluralism, different participants and decision-makers may refer to the same law” and “they may also accumulate elements of different systems … to create hybrid forms”.Footnote ³³ The changing patterns of action by litigants and judges also are evidence of the analytic importance of focusing on issues of subjectivity, agency and culture as they play a role in making justice possible or obstructing it.

The first case described above demonstrates that certain forms of subjectivity and agency can indeed “disturb and enlarge presumed understandings of what is socially possible and desirable”.Footnote ³⁴ The meaning of human subjectivity in Gorongosa, coupled with the fact that spirits are an integral part of these meanings, and that some of these spirits repudiate living in a world of injustice and impunity, made it likely for the litigant Bernardo to imagine a desirable social life built on the foundations of justice for wartime injustices. The fact that Bernardo initially refused to compromise on the amount of the financial reparation for past wrongs and that he reinforced his agency in the court by bringing in the spirit of his deceased father, was a crucial strategy to restore a desirable personal and cultural identity. It became clear to the author that his passionate struggle was necessary to right past wrongs and thereby restore his individual and collective identity, in which the spirits of the dead are a fundamental part. One will never know whether his deceased father indeed wanted his debts paid, but culturally it is acknowledged that these types of debts which the spirits of the dead return to claim do occur. From a legal and political perspective, it could be said that the agency of the spirits in this case became instrumental, both in the recognition of local cultural identity and in contesting the state hegemony as the prime maker of such an identity.Footnote ³⁵ According to the local ethics of reciprocity, this disavowal of recognition defined by the amnesty law was perceived as capable of bringing terrible consequences not only to Bernardo's wartime enemies but also to himself, his family and the generations to come.

The judges faced a similar ordeal. When persons try to interfere with the agency of spirits, it is believed that the spirit's fury may also affect those persons. The enraged spirit acquires similar features to gamba, the war-related male spirits that return to the world of the living to struggle for justice by delivering severe punishment upon their hosts and paternal family.Footnote ³⁶ The judges never explicitly conveyed their fears of the spirits during the court sessions because they had to display an unflinching position; however, such experiences of fear of dangerous afflictions were conveyed to the author. In this respect, the spirits as a form of litigants' legal language persuaded the judges to accept that justice was desirable to advance local life. This link between justice and the consequences of impunity, in terms of punishment through dangerous bodily symptoms beyond the individual, indicate that justice and health, and injustice and illnesses, are not always separate domains in this society; they are part of related processes.

The resolution of the various conflicts demonstrated that “language is legal power”.Footnote ³⁷ Nevertheless there was a varied use of language as part of conflict resolution in the traditional courts. For instance, in the second case, the practice of ku pikirira was central in giving public recognition to the case and compelled the judges to believe that a court hearing was required. As the case unfolded, the judges realized that it was difficult to establish the facts to prove that the torture to which Tobias was subjected had resulted from a false denunciation by Sozinho. This difficulty was increased because the sole witnesses had backed Sozinho's claim of innocence. When Tobias perceived that his case was on the brink of being dismissed, he used a new type of language: his body. This recourse to the body, to make it talk and physically to manifest his indictment, did “more than reflect pre-existing structures”;Footnote ³⁸ Tobias's body, particularly the scars, became his source of power to sway the judges that his claim for redress was too serious to be disavowed. The unexpectedness of this strategic action was so striking that the judges had to adjourn the case to think further. Ultimately, the judges returned to the amnesty law, not to dismiss the case but to avoid reparation being paid by the parties in the conflict.

The third case spelled out the prevailing gender injustices that underlie some of the features of the local ethics of reciprocity. It rendered visible the existence of a continuum of violence against women from conflict to the post-conflict period.Footnote ³⁹ Even though the accused (the ex-husband) had violated traditional laws of respect, the judges strictly followed local traditions in terms of patriarchal rules of paternity and the custody of children, and ignored the historical contours of this dispute. The former husband gained the custody of the child whom he had abandoned during the civil war, and the mother who had suffered greatly to protect and raise her child only received a meagre amount of money as compensation. The result of this case also demonstrates the ambivalence, in some cases, of procedural justice to generate fairness in conflict resolution. On one hand, the procedures offer a measure of fairness based on the principle of an equal right to a voice in court. On the other, the mechanical use of certain traditional laws waters down the positive expectations created by this same right to a voice during the resolution of disputes.

During the author's critical exchanges with the judges about the resolution of this dispute, they argued that their verdict conformed with local traditions. They also asserted that, even if they felt sympathetic to the predicament of the woman complainant, they had little room to bargain with the ex-husband in order to impose a measure of justice. The judges felt that they could not bargain from a position of strength because, if the ex-husband was not satisfied with a decision to grant the mother the right to keep the child, the ex-husband could go to the state authorities (police or district court) to appeal this case. If this occurred, the judges would be in trouble with the state authorities for adjudicating on wartime disputes. The judges felt, although they did not express it, that it was less problematic to make use of the local rules of child custody, which favoured the man, because women seldom appeal to state authorities when their rights are disrespected in the name of local traditions. Only exceptionally, when a woman plaintiff has the support of her male kin, can she then resort to the state authorities in order to re-establish her violated rights. In this case, the woman plaintiff did not have the backing of her male kin.

The court's decision spelled out that, in some cases, legal systems do “encode asymmetrical power relationships”Footnote ⁴⁰ that impact the male and female genders unevenly. When the law is biased with certain forms of patriarchal powers, this generates detrimental effects for female litigants.Footnote ⁴¹ Taking into account the postcolonial changes in Mozambique in the domain of state laws, which attribute equal rights for men and women, the strict recourse to the local ethics of reciprocity in this case violated the rights of this female litigant as a national citizen. In general, this type of violation may contribute to increasing women's vulnerability, thereby fostering family and social instability.

Nevertheless, it is no less true that an alliance between women and patriarchal forces can sometimes contribute to court decisions in favour of women. For instance, in another case involving a woman plaintiff, when she arrived in the court she was already showing signs of possession by the male gamba spirit. After hearing the case, the judges referred it to the paza healers because the male defendant was adamantly disputing [upoca] the veracity of the facts in the indictment. The judges transferred the case to a gamba healer that dealt with it successfully and the woman plaintiff won the case.Footnote ⁴² This example suggests that sometimes the intersection of female gender with patriarchal forces represented by male spiritual entities creates forms of subjectivity and agency that make justice in favour of women possible for civil war offences.