Month: October 2020

Introduction

Change is happening on access to justice. While not a new concept, the idea of improving access to justice has taken on new significance in recent years. As [was] discussed at Global Week for Justice and [other] collaborative Access to Justice Week [events in 2020], the work toward providing justice for all is not finished. But we are certainly moving beyond the recognition that access to justice matters and can see meaningful progress being made. Our thinking about access to justice is shifting in fundamental ways. In this piece I set out ten steps forward that have been taken, both globally and in Canada, on the way to justice for all.

Ten Steps Forward

1. Focus. There was a necessary although not sufficient change that involved shifting our focus from the provider – the legal system, to the user – the public. The worldwide wave of everyday legal needs research, including recent reports from Pascoe Pleasence, the OECD/Open Society Foundations and others – catalyzed by Hazel Genn’s Paths to Justice research – has been fundamental for our ability to understand what we mean by access to justice, to uncover the different ways that people experience and deal with legal problems, and to see important connections between legal problems, other problems and potential solutions. In Canada, the foundational legal needs work by Ab Currie helped the Canadian Forum on Civil Justice to develop our recent work on the Cost of Justice. The rise of Self-Represented Litigants (SRLs) as an access to justice issue, and research and attention related to that rise, has further fuelled this important shift in focus.

2. Magnitude. Once we started to look at those who use (and do not use) the system and what they need, it became increasingly clear that the gap between those who need justice and those who can access it is huge. According to the Task Force on Justice’s recent Justice for All report, 5.1 billion people “lack meaningful access to justice.” Acknowledging a problem is an important part of finding solutions.

3. Meaning. What we mean by ‘access to justice’ has become an increasingly contested and interesting discussion. There is no doubt that we at least mean access to courts and lawyers. However, what I found through our “What is Access to Justice?” research is that, when asking the public what they want, people aren’t ultimately hoping for more courts or more lawyers; rather, what they are really looking for – in essence – is some version of the good life. How far we move toward what amounts to substantive, engaged and reflective justice is still an open question. As seen by recent discussions, like the work of Rebecca Sandefur and others, at least we are having the discussion.

4. Innovation. That change is needed in the justice sector is not exactly a ground breaking revelation. Charles Dickens was not the first nor the last person to mock the state of the justice system. We have discussed this for years. However, linking innovation in justice to more general human-centered design thinking and reform has catalyzed a new kind of interest – and opportunity – in justice innovation in Canada and around the world, involving public, private and hybrid initiatives. Hiil has been encouraging this kind of innovation for some time. British Columbia’s Civil Resolution Tribunal and the work of the Labratoire de Cyberjustice, the Legal Innovation Zone, the Access to Justice Centre for Excellence, CREATE Justice, the Winkler Institute for Dispute Resolution and CLEO are but several Canadian examples. Law Societies are also starting to think seriously about the importance of future changes and innovations in legal services and legal regulation, as animated by the work of Richard Susskind, Gillian Hadfield and others. Much can be done to bridge the gap between those who need legal services and those who can provide legal services, including properly supporting those who need legal information (perhaps with some technology-based or in-person assistance) and those who need a lawyer. Having said all of that, as I have argued elsewhere, it will be important to identify and maintain core aspects of what is important about our systems of public justice in order to protect important rule of law and justice values as we move forward with innovations and reforms. Put differently, we need to be careful not to ‘throw the baby out with the bathwater’.

5. Collaboration. There is no doubt that the world-wide collaboration that has increased over the past decade has made a big difference in terms of access to justice attention, momentum and action. One only needs to look as far as this year’s Global Week for Justice for a flavour of this collaborative effort. Canada’s Action Committee on Access to Justice in Civil and Family Matters and its Justice Development Goals provide local examples of this important recognition. We’re learning, supporting, building on and starting to align our collective efforts.

6. Development. It is now increasingly accepted – by international organizations (e.g. the UN, OECD and World Bank), governments (e.g. Canada’s federal Department of Justice and its Access to Justice Secretariat), Crown corporations (e.g. IDRC), non-governmental organizations (e.g. World Justice Project, Hiil, Namati, Pathfinders, Open Society Foundations, Law and Justice Foundation of New South Wales, Canadian Forum on Civil Justice, etc.), bar associations (e.g. the Canadian Bar Association), research and other coalitions (e.g. the CBJR project, ILAG and Canada’s Action Committee on Access to Justice in Civil and Family Matters), among many others – that providing people with meaningful access to justice is good for individual wellbeing, commercial prosperity, investor confidence as well as sustainable collective development.

7. Government Buy-In. Although no credible opposition is raised to the importance of access to justice for development, there generally continues to be a lack of adequate government buy-in. Justice budgets continue to be inadequate in terms of meeting even the most basic justice needs. From the work of the OECD and World Justice Project, Hiil, Pathfinders, World Bank, and Lisa Moore and me, the business case is being made. However, a significant lack of resources still exists. Having said that, there are some new signs of important governmental recognition. For example, in Canada, leaders from various governments and parties are starting to say out loud that our system of justice “has failed,” that we need to “reimagine a system of justice,” that “change is needed all over the place,” and that “comprehensive action” is required. The federal Department of Justice has recently become increasingly engaged, which is important. Although provincial justice budgets are still too low to meet basic needs, Canada’s legal aid plans continue to provide excellent services (to those who can access them). As evidenced by the Global Week for Justice, some top-down momentum is happening around the world. Mobilizing that government interest, and the buy-in and resources that need to follow, is an important element of meaningful change.

8. People. We know that justice matters to people. In my small Canadian “What is Access to Justice?” survey, 97% of respondents indicated that people should “have a right to justice” and 76% indicated that “justice is of fundamental importance” (with another 23% providing more mixed answers, and only 1% saying it is not). However, until those people put more pressure on their government representatives – until access to justice becomes a coffee shop, book club, dinner table, Zoom meeting and ultimately a voting discussion – meaningful change is not going to happen. At the moment, health, education, policing, the environment, privacy, security, etc., continue to dominate our public consciousness. In turn, those issues dominate Cabinet and Ministerial mandates and budgets. Justice (and not only criminal law) needs to join those topics in order to move the dial on meaningful access to justice. Public legal education – at all levels – will help with this step.

9. Crises. The global COVID-19 pandemic has brought more change in the past six months than perhaps has occurred in the past 60 years. A lot has been happening. Governments, courts, lawyers, law schools – everyone – has had to adapt, and adapt quickly. Willingness, imagination and money have all been available. Not only is this result mostly a good news story coming out of a terrible world event, it also shows that change can happen. We also need to recognize that other – different – crises have happened in the past and continue to occur all around us. One only needs to look at the work of Canada’s Truth and Reconciliation Commission or the National Inquiry into Missing and Murdered Indigenous Women and Girls, the ongoing work of the Black Lives Matter movement, or the climate crisis to see that we are surrounded by inequity, violence, racism, and ultimately a lack of meaningful justice for all. Crises help to focus attention and catalyze action. However, we should not need to wait for the next crisis, or miss those around us, before further change occurs.

10. Research. It has become increasingly well accepted that data is a necessary asset for driving change. With a growing body of access to justice research, we are now at the stage of getting to the next steps of focussing on different kinds, areas and ways of scaling data to help better understand the costs, benefits, value and complexities of access to justice. A recent example is our new book, The Justice Crisis: The Cost and Value of Accessing Law. Topics and findings in this collection focus on: price, cost and regulatory reform; performance and benchmark indicators; public spending; individual and state-based costs; access to justice and Indigenous communities; domestic violence; paralegals; family law; class actions; social enterprise and innovation; legal fees and contingency fees; client interests and risk analysis, among others. The research methodologies used in this collection are innovative and exciting. Equally important is the fact that a new generation of scholars and researchers is starting to emerge alongside those who have been doing this work for a while. Generating new ideas, voices and ways of thinking, as well as sustaining future access to justice research agendas, is an important part of this work. We need to keep moving forward, particularly as we try to evaluate the impact of legal services on peoples’ lives, in order to understand whether in fact better access to justice – and ultimately justice for all – is being achieved.

Conclusion

Although I am generally an optimistic person, looking around at the world’s political, economic, social, health and climate situation, it is hard to avoid thinking that ‘Rome is burning’. It is also hard to say, as evidenced by the findings in the Justice for All report, that the situation when it comes to access to justice is that much better. However, given the steps toward progress that I have discussed above, I do think there is reason for hope.

In addition to those ten steps, there may be more or different steps – I’d be happy to be corrected. The important thing is that we learn from the past, recognize what’s happening now and find ways to break free from inaction in order for meaningful change to flourish. The real test of progress will be whether peoples’ lives improve in a meaningful way. I hope what we are now seeing will lead to that improvement.

This blog was originally published on the Pathfinders for Peaceful, Just and Inclusive Societies website on 20 October 2020.

Trevor C.W. Farrow is grateful for comments on this blog from Mark Benton, Ab Currie, Maaike de Langen and Janet McIntyre.

An estimated 70% of Sierra Leoneans depend on Local Courts for the resolution of justice problems such as child and spousal support, property, tenancy, and land disputes. However, emerging research findings suggest communities are shifting away from the State backed Local Court system, to paralegal organizations. In this blog, we explain the three main factors we identify for this shift: financial extortion, flawed judicial processes, and gender discrimination. These findings illustrate the limits of state-centric community-based justice reforms, attributable to a failure to fully implement reforms that would align Local Courts within the main judicial hierarchy, ensuring effective supervision, and independence from the control of chiefs. Community-based justice reforms we argue, should incorporate a deeper understanding of how local justice institutions work, in order to deliver justice for all.

This discussion builds on a recent complementary blog post, in which we shed light on forum shopping of community-based justice institutions in Sierra Leone, and the rational decisions that are driving individuals to paralegals particularly in rural areas that remain largely underserved by the formal justice system. While the findings may not be new, they deepen our understanding of the factors influencing choices people make for their justice journeys and the implications for access to justice in developing countries. These findings are part of a bigger ongoing three-country research supported by the Open Society Initiative for West Africa and the International Development and Research Centre of Canada, that is assessing the quantitative and qualitative costs and benefits of community-based justice services in Kenya, Sierra Leone and South Africa.

The Local Courts

The Local Courts in Sierra Leone were first statutorily recognized by the1933 Native Courts Act. Until 1963, when a new Local Courts law was enacted, chiefs or their appointees presided over all levels of the courts. The 1963 Local Courts Act however ended the judicial role of chiefs and brought the institution under the supervision of the executive branch through the Ministry of Local Government and Rural Development (MLGRD). Forty-eight years later, a new Local Courts Act (2011) introduced several changes, including situating Local Courts within the Judiciary. Local courts can adjudicate civil and criminal matters under customary and the general law.

On paper Local Courts are meant to be easily accessible for the majority of citizens constituting an entry point into the formal justice system, with the observance of due process, including rights of appeal. In reality, principles of due process and non-discrimination are absent due to a lack of political will to follow through reform process initiated by the 2011 law. Also, the lack of meaningful supervision or practical and functional separation from chiefdom administration, has led to perverse results in the system, pushing people away from Local Courts. While there is a right of appeal against a Local Court’s decision to the District Appeal Court made up of a magistrate and two assessors, such appeals tend to be cumbersome and could be stymied by a parallel process in the law. Rather than build on the reforms initiated under the 2011 Local Court Act to improve on processes and outcomes, the current government is pushing for the courts to be returned to the MLGRD, a move that could to further undermine their legitimacy and functionality. Below we discuss the three main factors pushing communities from Local Courts, to paralegals, as identified by focus group participants.

Financial extortion

A major reason cited by focus group participants relates to financial extortion in the Local Courts, which significantly increases the cost of justice for the plaintiff and defendant. The Local Court Act makes provision for the imposition of fines not exceeding SLL 50,000 or USD 5. However, as one participant noted, local courts, “have been imposing ridiculous fines and punishments,” far in excess of what is allowed in law, partly due to the lack of clarity among service users as to the maximum fines the courts can impose on them. Several other participants noted that Local Courts can impose fines up to 20 times higher than that which is allowed by law; and one senior paralegal in Bo noted that, “there have been instances where they have fined people as high as SLL 2.5 million,” or USD 250.

In addition to fines, service users are asked to pay for a number of other unauthorized expenses such as transportation for the courts’ police to serve summons or warrants, and for paper and pens to record proceedings. Our research has shown that the financial extortion perpetuated by Local Court officials, is in many ways a consequence of the lack of funding for their operations, the lackluster supervision from the judiciary, and communities’ lack of understanding of how the courts are supposed to operate.

Flawed judicial processes

Generally, the violation of human rights — related to security of the person and due process — continues to characterize the operations of Local Courts. Women focus group participants in Port Loko and Kambia, in Northern Sierra Leone noted molestation as a major reason for them not taking their complaints to local courts. They reported being shouted at and told to “shut up” by court officials, and left feeling “humiliated” when Court Chairmen regard them as children, a relationship which puts them in a dependent position and limits their rights. In instances where individuals cannot pay fines for minor and bailable infractions, they are “locked-up” in uninhabitable cells; and it is not uncommon for verdicts to be influenced by the testimonies of unreliable witnesses.

Further, while in theory the Local Court Act disrobed Paramount Chiefs of powers over the courts, in practice they and other powerful actors wield control over them, including in the appointment of court Chairpersons. This means that Local Courts seldom deliver adverse decisions against Chiefs, their relatives, and powerful personalities. One senior paralegal in Kenema in the East of the country suggested that because proceedings in Local Courts are based on customary law, Chairpersons find it hard to maintain a balance between provisions in the Local Court Act and Chiefs’ by-laws which may contain discriminatory, dehumanizing, and harsh punishments.

Gender discrimination

In addition to financial extortion and flawed judicial processes, discriminatory practices against women within the courts, compromise the principle of equality before the law. Given that Local Courts generally consist of chairpersons and panel of elders supported by court clerks who are predominantly men, male hegemony and solidarity, reinforced by tradition, tend to influence judicial processes and outcomes against women. Further, sometimes “unreasonable” restrictions are placed on women’s mode of dress, forcing them to cover their heads during court sessions — a sexist practice prohibited by the Judiciary.

Some women noted feeling uncomfortable narrating personal issues pertaining to their sexuality in front of male dominated courts that lack professional skills to deal with such sensitive social issues, as well as their trauma. Thus, the disregard for women’s right to be treated equally as men before the law, in addition to court officials’ lack of training on how to deal with gender sensitive issues, continue to push women away from the courts, to paralegals who have since become credible alternatives because of their free services, respect for rights, and prioritization of the preservation of relationships.

Reaction of Local Court officials

The withdrawal of communities from the Local Courts has not gone unnoticed, as court officials are working to reverse this trend. One high ranking Local Court official noted that the courts have observed a significant drop in the number of family law cases in the last few years. He noted that Local Court Chairpersons around the country have adopted a number of strategies to stem the tide, including reductions in court fines and monthly rotational meetings, intended to serve as forums for peer learning and advice. Another Local Court official noted that they use the meetings to review decisions of their peers and build support in the face of pressure from Paramount Chiefs and other powerful figures who tend to interfere with their work.

Although Local Court officials have been suspicious of paralegals — seeing them as rivals taking away their clientele, there is evidence the relationship is changing, with paralegals reportedly observing Local Court proceedings in some parts of the country. Indeed, heads of paralegal organizations interviewed for this research, reported observing a reduction in court fines, especially in urban centres.

Conclusion

The growing unpopularity of the Local Courts among local communities as we have seen, is a reflection of their failure to embrace meaningful reforms including respect for gender equity and human rights. Communities have realized that their services are neither affordable, nor fair; and are steeped in customary practices that hardly deliver justice in both process and outcome. This explains the growing popularity of paralegals. So far, it remains unclear whether the confidence building strategies of Local Court Chairpersons, as well as the reduction in court fines will change communities’ perceptions of the courts. However, the fact that Chairpersons are taking actions to win communities’ confidence, is illustrative of a broader need for reforms of the courts, which will require significant interventions from the government, and all those interested in the delivery of justice. The challenges faced by the Local Courts as we have highlighted, indicate that legal and administrative changes alone cannot make longstanding corrupt and dysfunctional judicial spaces equitably functional for all. Justice reforms must be accompanied by the necessary political and financial will to change the systems and processes that necessitate such programs in the first place. The final report of this study will expand on these, and other issues affecting the delivery of justice to communities in Sierra Leone.

This blog is an output from the Community-Based Justice Research (CBJR) project.

This blog was originally published by Pathfinders for Peaceful, Just and Inclusive Societies on 16 October 2020.