By: Adrian Di Giovanni and Gloria Song - ACE Guest Entry Blog
In many countries in the developing world, people have little access to justice. This has profound impacts on their lives. In informal settlements and inner cities, the lack of respect for basic legal rights often means that the urban poor live in squalid and cramped conditions, without clean water and sanitation. They’re also threatened by violent evictions. Across Africa, national and international investors also threaten to displace rural communities from traditional lands, depriving them of their livelihoods. Around the world, women continue to be excluded and discriminated against. Sexual violence rates are high, and the survivors have little recourse: families and communities shun them, public officials ignore or punish them for bringing complaints, and the cultural stigma is often reflected in inadequate legal protections.
At a global level, advocating for the importance of supporting access to justice has always been an uphill challenge. Despite promising declarations, the issue receives relatively low levels of support. From 2005 to 2013, just 1.8% of international donor aid went to the justice sector, in contrast to 7.5% for education and 11.7% for health. Furthermore, funds devoted to justice have tended to be concentrated on formal institutions like courts and training of judges, in a few countries.
In the face of those challenges, for a number of years, the International Development Research Centre (IDRC), an integral component of Canada’s development efforts, has worked to promote access to justice across the Global South. Our main approach has been to support local actors and institutions – civil society organizations, universities and think tanks – to develop greater knowledge of the legal challenges faced by poor and vulnerable groups in their countries, and to identify solutions to improve access to justice. Research projects often last two to three years, and in many cases involve testing of different legal interventions or strategies, often with direct participation of affected populations.
These research efforts operate on a few, interrelated levels:
1. They target unjust laws and poor enforcement to improve access to justice at a systemic level
2. They provide citizens with tools to raise awareness and assert rights, and
3. They confront deeply entrenched social and cultural norms.
1: Systemic Change: Better Laws, Better Applied Laws
The first level targets poor access to justice at a systemic level. The goal is to apply collective solutions through improved application of laws and policies to overcome exclusion and injustice. For example, in Mukuru, one of Nairobi’s largest informal settlements (slum), research uncovered a “poverty penalty”. The Mukuru settlement largely sits on private land, and upwards of 90% of the houses are controlled by absentee owners and landlords. Because formal infrastructure is lacking, cartels have stepped in to provide basic services such as water but charge exorbitant rates – up to 172% more than what residents in formal housing estates pay. To improve the situation, IDRC’s local partners leveraged the housing rights guaranteed under the new Constitution to obtain a court order halting all evictions. With support from IDRC, an interdisciplinary team of Kenyan experts led by Akiba Mashinani Trust has then able to identify a series of strategies to support more secure tenure, equitable access to services and housing, and justice for residents of Nairobi’s informal settlements.
In the process, 8,000 community members received practical knowledge and training on how land tenure, governance, and justice structures work. Learning about advocacy, human rights, settlement dynamics and financial literacy helped improve community cohesion. Women in Mukuru also launched a sanitation campaign to demand better facilities and infrastructure.
The team’s efforts have also prompted the Nairobi County Government to pilot test upgrades in a Mukuru neighbourhood, and to work with the research team to declare a special planning area. A new project is now building on these results, enhancing respect for rights in this and Kenya’s other informal settlements.
2: Legal Empowerment: Raising Awareness and Asserting Rights
Promoting access to justice also means providing affected populations with the awareness and tools needed to assert their rights. Take, for instance, the phenomenon of large scale land acquisitions in Africa (also dubbed “land grabbing”). Governments in a number of regions around the world have promoted increased investments in agricultural lands, for a variety of development goals. These land deals have placed new pressures on already weak governance and justice systems, and have even resulted in dispossessing populations of their traditional lands and natural resources. Communities are often uninformed about investment deals, their rights or the decision-making process. Women, youth, those without formal land title, and the poorest community members are often the most vulnerable to such situations.
In response, IDRC’s local partners are working with communities across 10 countries in Africa to make land governance processes more accountable, just and equitable. In many cases, the tools and solutions provided offer alternatives to traditional lawyer-client legal services, while improving affected communities’ ability to participate in decision-making processes and assert their rights:
· Using tools like community land management committees (Ghana), jeunes juristes (Cameroon), and community land charters (Senegal), projects are helping some communities overcome a widespread lack of awareness to participate in land governance processes.
· Initial results from the testing of community land titles (Liberia, Uganda) and family land trees, a new tool for resolving land disputes (Uganda), suggest that these efforts are promoting community-level mechanisms to resolve disputes, improve social cohesion and negotiate fair and just deals.
· Research (Uganda, Mozambique) is also seeking to understand which forms of land rights and governance processes – individual, family or community titling; formal versus informal dispute mechanisms – are most effective in ensuring respect for the land rights of women, who are most at risk in the context of inadequate or unimplemented laws.
At a systemic level, local researchers have also used emerging community-level lessons to help improve national and international laws and policies, for instance, through high level engagement in national reform efforts in Ghana, Kenya, Liberia and Senegal.
3: Confronting Norms: Bridging Laws with Larger Societal Realities
Addressing exclusion and poor access to justice also means looking beyond formal legal protections, and confronting deeply entrenched social and cultural norms – especially regarding sexual violence.
IDRC-supported research has found that current legal measures in a number of countries fail to protect women from sexual violence. Entrenched cultural stigmas around sexual violence mean that when women share their experiences of sexual violence, they are often shunned by their families, blamed by their communities, or ignored by police and other authorities. Nepal, for example, has a 35-day statute of limitations for bringing a rape complaint to the police. Notions of consent, how rape is defined, and other evidentiary and procedural requirements remain significant challenges. The laws are weak, and rarely applied. As a result, perpetrators of sexual violence enjoy impunity for their crimes.
In the face of such entrenched barriers, IDRC has supported South Asian academics, researchers, and activists who, over a number of years, have used research findings to successfully advocate for public responses, such as law reforms that expand the definition of rape in India and the adoption of standardized guidelines and protocols to deal with sexual violence victims in Bangladesh. Sexual violence survivors in Punjab now have access to a 24-four toll-free police hotline number; in Mumbai, 600 police officers have been trained to process information reports for sexual offences in a more victim-friendly manner; and in Gujarat, campaigns launched in 21 schools have raised awareness about accessing justice for child sexual abuse. Additional efforts are seeking to understand how to create spaces for women and men to confront openly the stigmas and norms that fuel violence against women and girls in the household and workplace.
How to build on these lessons?
These examples show the power of research and, along with other experiences around the world, offer hope. Larger challenges remain in understanding how to build on those positive changes and broaden access to justice on a universal scale.
Globally, there are relatively few efforts to track legal needs of populations and gauge the cost-effectiveness of justice responses. In June 2016, IDRC, the Open Society Justice Initiative and the Legal Education Foundation, UK published a first-of-its-kind study on how to scale up basic legal services in developing countries. The report focuses on administrative and civil justice, such as day-to-day disputes between neighbours or communities at the village level. The report provides a basic methodology to scale up access to legal services sustainably. It addresses how to calculate unit costs of services and their benefits and identifies innovative ways to broaden access, such as the use of technology and new financing mechanisms. The report also looks at what political conditions are needed to significantly increase access, out of a recognition that “scaling up” does not imply a linear process, and is highly contextual. Also in June, IDRC and the Open Society Justice Initiative hosted an international conference in Ottawa, to discuss the report’s findings. More than 80 experts and senior justice sector officials from 19 countries around the world were able to share stories, common challenges and lessons from their countries. The discussions confirmed common challenges in delivering on access to justice for all, and also the importance of linking country level efforts to global debates.
The moment for global debate on access to justice could not be better. For the first time, the international community has recognized a global, universal commitment to access to justice under the United Nations’ Sustainable Development Goals, thereby directing greater attention to this critical area. We need to seize this opportunity to push for access to justice for all, and improve the lives of people, both in Canada and abroad. At IDRC, we see evidence-building as a crucial part of delivering on that promise.
Adrian Di Giovanni is the Senior Program Specialist for the Law & Development portfolio at IDRC. Gloria Song is a former research award recipient and current employee for the Governance and Justice program at IDRC.