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Politically smart and locally-led justice programming

We are pleased to re-post this piece by Sam Muller which originally appeared on the Hague Institute for the Internationalisation of Law (HiiL) Innovating Justice Forum website on October 2, 2014.

A few weeks ago I attended a fascinating meeting with this provocative title at the Overseas Development Institute (ODI) in London. It implies that most justice programming is politically dumb, top-down, internationally-led and that it is not a good thing.

Having experienced rule of law programming closely in Yemen and Mali over the past year, I would be inclined to say that there is much truth to that. Let’s start with the politically dumb. Rule of law development is often positioned as merely technical: ‘generally accepted rules we all agree on – it’s only a matter of implementing them.’ That’s never the case: rule of law is about mitigating power and justice change is an inherently political process. We should admit that. Somebody will lose and somebody will gain power. Losing generally hurts. What about the top-down bit? Despite all the talk of involving locals and adapting to local circumstances, I have mostly seen that in the end, the donor’s agenda and politics dominate. International donors are rarely capable of listening, and if they do, they are rarely able to act on what they’ve heard. None of the women I interviewed for our Justice Needs and Satisfaction Survey in Mali this year said they believe the formal justice system should be strengthened to help them deal with the heart breaking separation and child custody challenges. They all thought and acted in relation to the informal justice system they knew and trusted and wanted that improved. But which donor would be willing and able to support imams, griots, and elders to deal more effectively with such cases, knowing that they support mechanisms that have a slightly different view towards gender equality than the one in the West? Which Western Parliamentarian would vote for that budget or resist the temptation to criticize his/her minister on having spent money supporting this?

So, much seems to be aligned towards continuing down the politically dumb and top-down road.

Matt Andrews – one of the participants at the meeting – has written one of the best and useful books I have read in many years for people working on programming justice change (The Limits of Institutional Reform in Development – 2012). Based on thorough empirical research, he concludes that ‘grand design’ programming does not really work. Sounds familiar? That detailed five-year plan worth 50 million dollars with an awesome list of objectives and results caught in an impressive logframe? His thorough empirical work confirms what HiiL’s research on justice innovation also shows: programming and strategy making that starts from problems that begin small with developing prototypes, and then tests them, and use iterative learning to slowly scale-up based on success, is much more effective. Matt Andrews calls it ‘purposeful muddling’ (or, more chique: PDIA – Problem-Driven Iterative Adaptation).

At ODI we all saw the failure of grand design and the value of purposeful muddling. But then what? How do you do it? My main take-aways include many contradictions:.

  • Donors want Big Programmes. It is said to save administrative costs. In addition: at the international level there is a tendency to lock into Big Targets (the MDG’s. Legal Empowerment for the Poor, etc.). Perspectives are not aligned;
  • Locally- led is the opposite of donor- driven. The challenge is how to support locally embedded actors to find solutions without being driven to solutions by the way money is being organised;
  • We don’t really have the budget rules, tender processes, logframes, and evaluation mechanisms to work in this way.
  • Justice is a risky sector to engage in. There is always the potential of doing harm. There are many actors. There are formal and informal ecosystems. All this limits the room for experimentation, which – at the same time – we need to muddle effectively and purposefully.
  • A key word in this approach is learning. This means: assure you can learn and communicate the learning;
  • Data is highly important for learning and taking action. This includes, but is not limited to, surveys. Radio shows and social media activity are also important sources of information-these are not really used;
  • ‘Locally-led’ is often an empty phrase. In fact, one participant stated: “There is no such thing as country owned. The country does not exist as a thing.” In his words: “You have to be in there all the time to find out who is allied with who and who wants what.” ‘Locally-led’ means more than building ‘buy in’ or teaching CSOs to ‘hold government institutions to account’. Good local leaders are brokers who are also able to bring in government institutions. They connect and organise and drive multi-stakeholder conversations. They build constituencies for change;
  • And, paramount to everything: always be guided by problems, not institutions. Focus on problems on which there is some consensus. Build a clever business case for your problem. But be careful. You can lose the original focus as you build the business case. So keep in touch with the problem.

Fascinating. Fresh, new thinking that can help get better outcomes in justice development. One thing kept nagging me, however. Why are we all so eager to ‘programme’? Behind that word lays a whole paradigm: rich countries that ‘programme’ to help other, poorer countries. I would not argue against that or against helping. But perhaps another seminar could be on politically smart, locally-led justice business models, without the programming bit.

Video material on some of presentations and panels can be found here.

The Halton Legal Health Check-Up Project is About to Go into the Field

The Legal Health Check-Up project, being developed by the Halton Community Legal Clinic, is moving out of the planning phase and into the field. Now that training for the seven intermediary partners in the use of the Check-up tool has been completed and the research instruments have been developed, the project is entering a preliminary phase in which data will be collected for three months or until three hundred Check-up forms have been completed with the assistance of intermediaries and submitted to the clinic for intake. The three hundred completed forms should provide sufficient data to assess the implementation phase of the project, to detect unanticipated issues and to make course corrections. That number of clients flowing in through the check-ups administered by intermediaries is intended to be small enough so that service can be provided to all new clients without undue strain on the capacity of the clinic while providing sufficient data to assess the early implementation of the project. It was decided early on in the planning that no part of the project would be for research only.

This phase of the research will allow the project team to collect data and carry out analysis to address several critical questions. How effective is the legal health check-up tool in identifying everyday legal problems? How closely do the everyday legal problems identified by people through the Check-Ups translate into actionable legal problems assessed at intake? Does the Check-Up process allow the Halton clinic to move the service “upstream”, identifying problems before situations become critical? How will the different intermediaries interact with clients and how will this affect problem identification? To what extent will the Check-Up tool allow the Halton clinic to extend its reach beyond its current clientele, into the hidden need of people marginally above current legal aid eligibility but still experiencing legal need with the same urgency as existing clients?

The Halton Legal Health Check-Up project is responding to the unmet need documented in the legal problems research and long experienced by service providers. By partnering with intermediaries to extend the reach of legal aid the Legal Health Check-Up project is moving from being reactive to the expressed demand that manifests as requests for service to proactively identifying unmet need, the Halton Legal Health Check-Up project is responding to the unmet need legal problems research has documented and has long been the experience of service providers.  Following the preliminary phase, the Halton pilot will continue to gather a larger body of data that will provide conclusive evidence. Importantly, following the preliminary assessment phase in Halton, several LAO legal aid clinics in the Southwest Region will then come on stream with versions of the legal health check-up approach that suit their situations.

These are exciting times for legal aid in the Halton region and in Ontario, responding to the unmet need now well-documented in the research literature with a new and exciting approach. At the same time, long time observers of legal aid will notice that the Halton Legal Health Check-Up project reaches back to the enduring ideals of the legal aid movement from the early days in the 1960’s, especially in the U.S when legal aid was conceived as part of a social justice movement and a key part of an attack on poverty. However, everything old is not new again without the commitment and the energy to continue making it happen, applying new knowledge about the access to justice problem and new ways of addressing it.

When Access Isn’t Enough: Examining the Intersection Between Social Inequality and Access to Justice

In her recently published book, On the Run: Fugitive Life in an American City, sociologist Alice Goffman follows the lives of several young men living in an inner-city community in Philadelphia. Through immersive fieldwork and rich ethnographic detail she illustrates “how fear of confinement has transformed work, health, and family life, causing men to disengage from the very mainstream institutions that might put them on a better path”. While Goffman’s work focuses on important questions relating to the United States penal system, it raises issues that relate to current access to justice initiatives.  In particular, it evinces a broader consideration of the links between social inequality, discrimination and legal problems and the effects it has not only on encountering legal problems, but also in resolving them.

In the realm of access to justice work, it is little secret that access to legal representation is a significant barrier.  To combat this, many initiatives across Canada have focused on empowering the public to understand the legal aspects of everyday problems and to increase access to legal representation.  But as we move forward, it is important to understand the full scope of what these initiatives can bring.   In communities that have historically experienced greater police presence or with individuals that have had previous interactions in the justice system, there may be less inclination to engage the legal system in the resolution of their legal disputes.  As Goffman noted, distrust and perceptions of unfairness are significant barriers to resolving disputes through the legal justice system.  For instance, the existence of a criminal record or being from a socio-economically disadvantaged community was enough to cause many to shy away from navigating their problems within the civil justice system.

Similar sentiments were noted in the Canadian Bar Association’s Access to Justice Metrics discussion paper. The paper was the result of a series of consultations that took place between November 2012 and February 2013 with marginalized communities and individuals most affected by a lack of access to justice.  When asked, “what happens when access to justice is denied?” participants spoke about fundamental problems with the system itself – it being “untrustworthy, corrupt and broken.”

In another study that focused on racialized youth in Toronto, participants held that “the law [was] not something that generates entitlements or protections; rather it [was] invoked by those with power against those without.” As a result, many did not even consider using the legal system to resolve their disputes because of the deep feeling of distrust.

So while we focus much of our attention on making it easier to engage with the legal system, it is clear that it must be done concurrently with increasing trust in its processes. Part of this means understanding the lived realities of those encountering the system.  As participants in the CBA study noted, the lack of recognition or understanding of the social and personal realities of the marginalized people moving through the legal system results in two problems: “First, the system and its actions actually perpetuates or aggravates the problem that got the community member initially involved in the system. The second problem created by the system’s seeming ignorance of social and personal realities is that the legal problem has a “spiraling and multiplying” effect into other areas of their lives, worsening them significantly.”

Interestingly, the issue of access to justice by people living in poverty was discussed at length by the former Special Rapporteur on extreme poverty and human rights, Magdalena Sepúlveda, in her 2012 report to the UN General Assembly.  While the report pointed to the cost of legal advice and lack of information as some causes for access to justice problems, others related to social exclusion and the lack of recognition or prioritization of the abuses regularly suffered by persons living in poverty.   As was stated in the report overview, “the lack of remedies for the negative impacts of social policy in the areas of health, housing, education and social security, or for administrative decisions relating to welfare benefits or asylum proceedings, often results in inability to seek redress in cases of violations of key human rights, such as the right to equality and non-discrimination and the right to social security.”  Although the report encompasses a vast array of social contexts, it offers an interesting analysis of the intersection between access to justice and social inequality that can inform future initiatives.

As we move forward, it is worthwhile to consider such barriers to accessing justice.  Beyond providing legal services, there are many other issues that can impede ones engagement in the legal system.  While this is merely a scratch on the surface, such inquiries force us to examine the form of justice we are trying to achieve and the quality or equality of services therein.

 

 

 

 

Connecting Ottawa

In December 2008, the Law Foundation of Ontario tasked Karen Cohl and George Thomson with the responsibility of finding durable solutions for individuals facing linguistic and rural barriers to accessing justice. In response to their findings, a pilot project funded by the Law Foundation and Connecting Ottawa was born.  I had the opportunity to intern with the organization this past winter. Having always thought of myself as a social justice law student, I naturally gravitated towards Connecting Ottawa for its simple but powerful mandate: to break down all linguistic barriers to accessing justice.

Armed with a firm (and somewhat naive) resolve to combat social injustice, I arrived to my first day of training with Natalie Drolet, senior counsel in charge of the day-to-day operations for the project.  I quickly discovered that my idea of social justice needed revamping. I had always thought of access to justice issues as being purely legal problems, to be solved by lawyers and law-makers alone. Connecting Ottawa changed my perception of this by introducing me to one of the most powerful access to justice tools: collaboration between legal and non-legal service providers.

Located at the Vanier Community Service Centre, and sharing facilities with the Francophone Legal Clinic of Ottawa East, Connecting Ottawa is a truly collaborative project. During my time there, I was able to observe the various partnerships that Connecting Ottawa has developed with legal clinics, community service organizations, and other trusted intermediaries. Being on the front lines of access to justice work meant that I was interacting directly with vulnerable clients in an effort to maximize the resources available to them.

My work most often involved brainstorming different organizations that might be able to assist individual clients, and then contacting those organizations to facilitate referrals. During my time with Connecting Ottawa, it was clear to me that one of the most important functions the organization serves is to help vulnerable people with legal problems navigate the complex maze of resources to find the ones most relevant to them.

That’s the short-term goal. The long-term goal is more difficult, and brings us back to the work of Karen Cohl and George Thomson. Their report to the Law Foundation of Ontario surveyed the deficiencies in the way that the current justice system was addressing barriers to access, and ways that it could improve. The most salient point that grew out of the report was the need for a fundamental paradigm shift in the way that we think of solutions to access to justice problems. The solution to the problem is, indeed, to think about the issues in a different way. The solution to the problem is building a system.

In Ontario now, there is some innovation and promising, isolated experiments to improve linguistic and rural access to justice. Apart from some notable exceptions in particular areas, however, there is no harmonized sense of direction, and no collective decision-making about areas of priority. — “Connecting Across Language & Distance” (2008), Cohl and Thomson.

Cohl and Thomson looked at the current system and saw a plethora of organizations, some legal and some non-legal, who were working independently to improve access to justice. These organizations often did not communicate with one another to ensure that they were not duplicating services, or to identify any gaps in the services that were being provided.  Cohl and Thomson also highlighted a schism between what were traditionally identified as legal service providers and non-legal service providers.

The old system was predicated on the idea that individual organizations should be designed to address problems in a narrow way. The old system also created a false dichotomy between legal and non-legal problems, without leaving room for intersection or convergence.

The old system ignored the fact that legal problems often come with non-legal problems, and vice versa. For example: a dispute with your spouse may bring with it emotional unrest as well as property and child custody disputes; a criminal law issue may bring with it issues of mental health and economic instability. It is not surprising that no one organization can resolve all of these problems. It is also not surprising that individual organizations addressing issues in isolation cannot contribute towards the solution when they do not communicate with one another.

Connecting Ottawa represents a much-needed paradigm shift in the way legal services are organized, facilitated, and operated. It offers a move away from isolationist policies, and a move towards providing a holistic solution to legal problems. We take a holistic approach and draw upon strengths that already exist within our network of over 40 community health, legal, immigration, disability, and social services agencies.

Connecting Ottawa re-imagines the solution to legal problems. Collaboration between legal and non-legal service providers is at the centre of all of the work that the organization undertakes. Building effective and long-lasting solutions to access to justice problems is about fostering connections in the community and building a fluid network of people and organizations which guide people through their legal dilemmas.

I was fortunate enough to have attended the 2nd Annual Connecting Ottawa Conference, where lawyers, community legal workers, settlement conference workers, policy makers, scholars and other members of the community came together to build connections and strengthen their network. Moving forward, I hope to see Connecting Ottawa continue to foster an interconnected community within Ottawa, and serve as a model for the change we so desperately need.

To find out more about Connecting Ottawa please visit www.connectingottawa.com or follow @connectingottawa on Twitter.