How peoples govern themselves: elders, chiefs, councils and customary law

Lesson 4 of 5 in "How societies are built", about 7 minutes

A society without police or parliament is not a society without government. People everywhere have to decide where to move or plant, how to share water and what to do when someone is wronged. Indigenous and tribal peoples have developed many answers. Most rest on respected individuals, open meetings and a body of unwritten rules known to all.

Kinds of leader

• Elders: older men and women whose authority comes from experience and knowledge of custom.
• Headman or headwoman: the recognised spokesperson of a band or village, who leads by persuasion.
• Chief: a holder of an office that carries rights and duties and often passes within a family or clan.
• Ritual leaders: priests, healers or keepers of sacred knowledge, whose word may weigh heavily.
• Elected leaders: presidents, chairpersons and councillors chosen by vote under a written constitution.

These roles often exist side by side. A Santhal village in eastern India has a headman called the manjhi, with assistants for different tasks, and groups of villages come under a higher officer called the pargana. The same village also elects members to the local government body set up under Indian law. People take some matters to one and some to the other.

Councils and consensus

The usual place of decision is a council or assembly. Many councils aim for consensus, which means continuing to talk until everyone can accept the result. This is slower than voting but leaves no defeated minority. The diagram shows the typical steps.

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1. An issue arises. Something needs settling. Two families quarrel over a field boundary, or the village must decide whether to accept a road. The matter is raised with a headman or an elder.
2. Council is called. The council gathers at a customary place. In Botswana the Tswana meet at the kgotla, an open public court. Khasi villages in Meghalaya hold a dorbar, an assembly of the village.
3. Everyone is heard. People speak in turn. In many councils anyone affected may talk for as long as they need. Listening fully is part of the process, not a delay before it.
4. Custom is weighed. Elders set the case against custom: the unwritten rules and remembered past decisions of the community. They ask what was done before and what would be fair now.
5. Consensus is sought. The aim is consensus, meaning an outcome everyone can live with, not a majority vote. The Haudenosaunee Grand Council passes a matter between groups of chiefs until they agree.
6. Decision announced. When the talk settles, a senior person states the decision aloud. Saying it in public makes it binding, because the whole community has witnessed it.
7. Relations repaired. The goal is to repair relations. The party at fault may pay compensation or host a meal. Many councils now debate who gets a seat, including women and the young.

Power that rotates

Some systems are designed to stop any person holding power for long. Among the Oromo of Ethiopia, the Gadaa system divides men into classes that move through a series of grades every eight years. One class holds political office for a single eight-year term and then hands over to the next. UNESCO added Gadaa to its list of intangible cultural heritage in 2016.

Customary law

Customary law is the set of rules a community accepts as binding, passed on by practice and memory, not by statute books. It covers land, marriage, inheritance, theft, injury and ritual duties. It is flexible: elders apply general principles to the case in front of them. It also changes over time, as communities drop some rules and adopt others.

Customary justice usually aims to restore relations, because the parties will remain neighbours. The wrongdoer and their kin pay compensation to the injured side, and a shared meal or rite marks the end of the quarrel. The Navajo Nation's courts include a peacemaking programme built on this idea, in which a respected community member guides the parties to an agreed settlement.

Recognition by the state

Many countries give customary institutions legal standing. India's Constitution protects Naga customary law and procedure in Nagaland, and sets up autonomous district councils in parts of the north-east under its Sixth Schedule. A 1996 law known as PESA gives the Gram Sabha, the assembly of all adults in a village, a say over land and resources in tribal areas of central India.

Elsewhere, tribal governments run their own courts, police, schools and health services. The Navajo Nation and the Cherokee Nation in the United States are examples. In Panama, the Guna people govern the Guna Yala region through a general congress of community representatives. In Samoa, village councils of matai, the titled heads of extended families, hold authority recognised by the state.

Debates within

Custom is not beyond criticism, and the sharpest debates happen inside communities. Who may speak in council? In many places only senior men once did. Women and young people are now pressing for seats, and several peoples have changed their rules. Customary law must also fit with human rights law. Working out that fit is a task for the community itself as much as for outside courts.

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