Access to Justice: Actors & Activities
Legal protection entails the provision of legal standing in formal or traditional law - or both. This involves the development of capacities to ensure that the rights of disadvantaged people are recognized within the scope of justice systems, thus giving entitlement to remedies through either formal or traditional mechanisms. Legal protection determines the legal basis for all other support areas on access to justice.
Legal protection of disadvantaged groups can be enhanced through:
Legal awareness involves the development of capacities and effective dissemination of information that would help disadvantaged people understand the following:
Legal Aid and CounselDescription:
Legal aid refers to the development of the capacities (from technical expertise to representation) that people need to enable them to initiate and pursue justice procedures. Legal aid and counsel can involve professional lawyers (as in the case of public defense systems and pro bono representation), laypersons with legal knowledge (paralegals), or both (as in "alternative lawyering" and "developmental legal aid").
One approach is to create a Public Defenders Office and to train public defenders. This was done in East Timor.3 UNTAET (the United Nations Transitional Administration in East Timor), which governed the country from 1999 until 2002, created a Public Defender's Office that was tasked with providing legal representation to people who cannot afford private legal counsel. In Kosovo, the Organization for Security and Cooperation in Europe (OSCE) took the lead in creating a Kosovo Legal Centre, which trained and oversaw public defenders.4
Examples of paralegal services in post-conflict settings:
Sierra Leone and Burundi
Paralegals (i.e. laypersons with legal knowledge and training) can play a key role in the post-conflict justice sector, and are increasingly seen as potentially critical actors. Formal legal services (that is, lawyers helping people to access to and secure remedies through formal courts) entail significant drawbacks: the cost of hiring a lawyer; the slowness, inefficiency, and corruption of formal judicial institutions; and the geographic and cultural remoteness of both lawyers and formal courts. Paralegals, in contrast, usually hail from the local communities in question, are knowledgeable of both formal and informal justice processes, and provide more than strictly legal services"specifically, they mediate conflicts between disputants, raise legal awareness, and advocate on behalf of ordinary claimholders. In post-conflict environments characterized by weak state institutions, little popular knowledge of legal rights and the gap between the supply of and demand for justice, paralegals are uniquely situated to address the everyday justice problems of ordinary people.
An initiative in paralegal services is underway in Sierra Leone, a post-conflict country where the discrepancy between the supply of and demand for justice is striking. It is estimated that there are roughly 100 lawyers for Sierra Leone's population of 5 million. It is also estimated that approximately 70 percent of the population has no access to legal justice. Timap for Justice is a Sierra Leonean non-governmental organization that provides free justice services to the poor.5 The organization trains and deploys roughly 25 paralegals in 13 paralegal offices across Sierra Leone: a headquarters in the capital city of Freetown, and 12 offices in the countrys Northern and Southern Provinces. Their work is based on "a creative, flexible model to advance justice, one which combines education, mediation, negotiation, organizing, and advocacy."6 Crucially, Timap's paralegals are versed in both formal law and community-based dispute resolution, and constantly navigate Sierra Leones dual legal system. In 2006, the World Bank's Japan Social Development Fund awarded a three-year, $879,000 dollar grant to Timap for Justice.7
Global Rights (http://www.gobalrights.org), an international human rights advocacy group, is working to expand access to justice in Burundi, especially with respect to that countrys land crisis. Land disputes in the aftermath of violent conflict are common, especially between returning refugees and unlawful occupants. Such conflicts are also very serious, since the failure to address them can lead to new cycles of violence. Global Rights has founded legal clinics and is training paralegals in order to help people living in rural communities address their land conflicts. There are both stationary and mobile legal clinics. The staff travels to remote regions, familiarizes people with their legal rights, mediates conflicts, and trains community-elected paralegals. Two of the legal clinics have been handed over to partner local organizations.8 RCN (Réseau de Citoyens) Justice et Démocratie, a non-governmental organization, has also conducted innovative legal aid programs in Burundi, the Democratic Republic of Congo (DRC), Haiti, and Rwanda.
AdjudicationDescription: Adjudication--that is, the legal process by which a judge or some other type of arbiter reaches a decision regarding a legal dispute--entails the development of capacities to determine the most adequate type of redress or compensation. Means of adjudication can be regulated by formal law, as in the case of courts and other quasi-judicial and administrative bodies, or by traditional legal systems.
EnforcementDescription: Enforcement entails the development of capacities for enforcing orders, decisions and settlements emerging from formal or traditional adjudication. It is critical to support the capacities to enforce civil court decisions and to institute reasonable appeal procedures against arbitrary actions or rulings. In some cases, these programs include basic (but critical) material support such as providing local judges with transportation (motorcycles in many cases) so they can assess the enforcement of their decisions in remote rural areas, and support to other judicial professional, such as bailiffs and marshals.
Civil Society & Parliamentary OversightDescription: The development of civil society's watchdog and monitoring capacities and parliamentary oversight capabilities strengthens overall accountability within the justice system. An illustrative example of such civil society organizations is the Judicial System Monitoring Programme (JSMP) in Timor Leste, an NGO that monitors and provides independent analysis of the judicial system. Founded in 2001, the organization's mission is to contribute to "the development and improvement of the justice and legislative system through objective monitoring, analysis, advocacy and training."9 The organization monitors the district courts and the court of appeal, and has a Womens Justice Unit that examines the state of women in the formal justice system, and a Victim Support Service that provides legal aid to victims of domestic violence. In Haiti, the National Coalition for Haitian Rights (NCHR) does similar work. The organization conducts workshops in the countryside that include local human rights monitors, police and judicial officials.
Supporting Activities: ResearchA critical first step is to conduct research and gather information on the state of access to justice in a particular society or community. Research activities are undertaken by both international and local actors, usually in collaboration with one another. A prominent example is the World Bank's Justice for the Poor (J4P) Program, whose mission includes to "build a solid, empirically founded knowledge base of the dynamics of local decision making and dispute resolution processes and inequality traps" and to "enhance the capacity at the local level to conduct policy research and undertake evidence based policy reform."10 The J4P Program has conducted research in partnership with local organizations in conflict-affected and post-conflict settings, such as Cambodia, Indonesia, Kenya, and Sierra Leone.11
Other Initiatives to Make the Formal Justice System AccessibleWhile many access to justice activities are rightly situated outside the boundaries of the formal justice system, it is nonetheless "a crucial necessity to bring the tribunals closer to the people."12 Different strategies have been employed in that regard:
1. United Nations Development Programme (UNDP), Programming for Justice: Access for All-A Practitioners Guide to a Human Rights-Based Approach to Access to Justice (Bangkok, Thailand: UNDP Regional Centre, 2005), 6.
2. Communication with Bill O'Neill, 11 July 2008.
3. Cancio Xavier, "A New Office for a New State: East Timors Public Defenders, in Legal Aid Reform and Access to Justice," Open Society Justice Initiative (February 2004): 39-41.
4. Communication with Bill O'Neill, 11 July 2008.
5. For further information about Timap for Justice, visit their website at www.timapforjustice.org; see also Vivek Maru, Between Law and Society: Paralegals and the Provision of Primary Justice Services in Sierra Leone (Open Society Justice Initiative, 2006).
6. Timap for Justice.
7. Open Society Institute Justice Initiative, "World Bank Awards Grant to Pioneering African Paralegal NGO," Press Release, 23 October 2006.
8. Global Rights, The Long Road Home: Burundi's Land Crisis (Global Rights Magazine, Summer 2005).
9. Judicial System Monitoring Programme (JSMP).
10. World Bank, Justice for the Poor Program, May 2008.
11. For further information, see the J4P Programs.
12. Martin Abregu, "Barricades or Obstacles: The Challenges of Access to Justice," in Comprehensive Legal and Judicial Development: Toward an Agenda for a Just and Equitable Society in the 21st Century, ed. Rudolf V. Van Puymbroeck (Washington, D.C.: World Bank, 2001), 64.
13. Steven E. Hendrix, "Guatemalan 'Justice Centers': the centerpiece for advancing transparency, efficiency, due process and access to justice," (report prepared for the U.S. Agency for International Development, 2000), 819.
14. Daniel Drosdoff, "Justice centers meet rural needs: new approach emphasizes dispute resolution," Magazine of the Inter-American Development Bank.