Getting rights right

Is access to justice as important as access to health or education?

A core government function is to provide an effective system of justice for its citizens. Yet many governments fail to deliver on the basic services of protecting physical safety, securing personal property and settling disputes quickly and fairly. Recent studies have highlighted the fact that for poor people, access to justice may be as important as access to healthcare or education. How can justice be made more accessible?

Poor people typically lack access to courts or even police protection. When they do have contact with the justice system, it is most frequently as victims of crime, or as targets of harassment or corruption. The idea that the justice system is available to vindicate legal rights, settle disputes and safeguard citizens is supported in theory, but seldom realised in practice. While existing studies show that both the supply of justice services and the ability of people to access those services need attention, more research is needed in this area.

Recent studies of poverty, including the World Bank's 'Voices of the Poor', have emphasised that poverty is not just a lack of income. It is the experience of multiple forms of vulnerability, including exposure to violence and unlawful activities. Low-income families without access to effective justice systems suffer from four types of justice-related impoverishment:

• The justice system fails to fulfil its stated objectives - of protecting people from theft, violence and official abuse - or to enforce legitimate entitlements and legal rights (e.g. to wages or inheritance).
• The prevalence of police extortion, unjust imprisonment and courtroom bribery may inflict further costs: the justice system may seem like 'organised theft'.
• Living in a state of lawlessness undermines confidence, deters investment and contributes to costly risk-avoiding behaviour within a culture of fear.
• Vulnerable households may use scarce disposable income for self-protection (e.g. bribes and weapons) to shield themselves from both state and private plundering.

The causal link between inadequate justice services and poverty has only recently come onto the development research agenda. Previously, development concerns with justice tended to focus on the correlation between the 'rule of law' and economic growth, with particular attention to the rights of investors to protect property and enforce contracts.

Empirical research on the links between poverty and inaccessible justice is still fairly thin. Stephen Golub's recent research has highlighted the importance of legal empowerment and poverty alleviation in the Asian region. His analysis suggests that legal empowerment involves multiple actors and institutions, so that the emphasis lawyers place on courts and codes may be misplaced. Most important, more empirical research is needed to quantify the impact of legal empowerment programmes.

One of the problems in studying justice systems is the culture of silence that often accompanies insecurity. Alison Lochhead notes that although as many as eighty per cent of all women in Pakistan have been subject to domestic violence, the formal legal system has failed to protect them since prosecutions are rare and women are less likely to have success in formal lawsuits.

Another example of the link between vulnerability, poverty, and inaccessible justice is seen in the area of environmental management. Maria Adebowale summarises aspects of the 'access to environmental justice' movement which seeks to use improved access to information and legal remedies to reduce the impoverishing effects of environmental damage.

The largest barrier to accessible justice is the poor delivery of justice services. Corruption, poor management and low levels of capacity are common, not only among the police and judges, but also among prosecutors, court administrators, private lawyers and prison staff. The justice sector is typically under-funded and vulnerable to political manipulation; its rules and procedures are often grounded in 19th-Century understandings of social hierarchy rather than a customer-oriented service ethic.

In response to these factors, the last quarter of the 20th Century witnessed a wave of institutional reform initiatives. As Linn Hammergren discusses, certain court reforms in Latin America have aimed to deliver more effective services to the poor - first through procedural reforms and improved management, next through special services targeted to reach the poor, and finally by undertaking public interest litigation on behalf of groups.

Yet early indications are that while reforms can genuinely improve the operation of ordinary justice institutions, such improvements alone will not reach the poor. In addition to more effective systems, special initiatives to target vulnerable groups are required for a real impact.

The expression of effective demand for justice is initiated when people take their grievances to the police, a lawyer or a non-governmental organisation (NGO) specialising in legal representation. Like most services, the demand for justice services is partly determined by the availability and price of legal representation as well as the purchasing power of the parties. It is also deeply affected by levels of trust in the institutions, geographical location, language, opportunity costs and cultural attitudes. (See box below.)

Perhaps the most common initiative to improve accessibility is to enhance the availability of legal services through legal aid schemes. In many countries, there are simply very few qualified lawyers, as David McQuoid-Mason recounts. The South African experience highlights that legal services are best provided through a mixture of private, government, university and NGO initiatives working together.

A more radical approach is shown in Malawi where paralegals without formal legal qualifications have been employed to promote legal literacy and self help among prisoners on remand. Since paralegals have also helped to reduce backlogs in the system, Adam Stapleton explains, their contribution is valued by the police, judges and prison staff.

Despite the availability of legal aid and paralegal services, many people instead seek to raise their grievances not with official state bodies but with 'traditional' rulers or in community fora. In Southwest Nigeria, for instance, it is estimated that some eighty to ninety per cent of disputes are taken to traditional rulers. Celestine Nyamu-Musembi's research on family and land disputes in Kenya indicates that traditional non-state dispute settlement can be inexpensive and accessible, but often discriminates against women. The challenge for such institutions is to find paths to reform that increase accessibility and non-discrimination while preserving their authority and effectiveness.

While traditional justice remains the only real approach for many of the poor, such institutions are largely powerless where disputes involve global issues such as suits against multinational corporations. Halina Ward's discussion of cross-border lawsuits against parent companies highlights that workers and communities in developing countries are sometimes vulnerable to injury or loss caused by actors in other states. As globalisation proceeds, the procedural and practical challenges of international access to justice are likely to be felt more keenly.

Michael Anderson
British Institute of International and Comparative Law
17 Russell Square
London WC1B 5JP
UK

T +44 (0)20 7023 0415 or +44 (0)20 7862 5165

m.anderson@biicl.org or m-anderson@dfid.gov.uk

See also
'Access to Justice', 3 vols., Nijhoff, Mauro Cappelletti (ed.), 1978-1980
'The Politics of Informal Justice', 2 vols., Academic Press, Richard Abel (ed.), 1981
'Access to Justice', HMSO, by Lord Woolf, 1996

Views expressed on these pages are not necessarily those of DFID, IDS, id21 or other contributing institutions. Copyright remains with the original authors but (unless stated otherwise) articles may be copied or quoted without restriction, provided id21 and originating author(s) and institution(s) are acknowledged. Copyright © 2005 id21. All rights reserved.