More than half of the world’s population are not satisfactorily protected by law or the institutions established to govern them. The poor are in a particularly helpless position- their rights are routinely violated, they are unable to access formal institutions and are incapable of speaking out. In Sierra Leone the vast majority of the population do not have access to the formal justice system. They have to rely on informal or traditional institutions which often leave them vulnerable to exploitation and discrimination. With examples from a number of developing countries, this article briefly examines the value of the low-cost justice delivery model of community-based paralegals, in ensuring access to justice for the poor.
Poverty and law
In the Human Poverty Index (HPI), Sierra Leone ranks 128 out of 135 countries. The story behind the statistics makes grim reading: 31% of the population may not survive to the age of 40, 61% of all adults are illiterate, 47% do not use water from an improved source and 30% of all children under 5 are under weight for their age. The vast majority of poor people live outside the protection of the law, their poverty being a reason and consequence of their lack of effective legal rights. They struggle to make ends meet and are forced to devise their own solutions to the myriad socio-economic challenges they encounter daily. In sub-Saharan Africa, between 65 and 90 percent of these poor live in rural areas. The conditions faced by the rural poor in terms of access to education, healthcare, water and sanitation, housing, transport and communications are much worse than those faced by their urban counterpart. With these formidable challenges and living on less than a dollar a day, it is not hard to imagine why accessing formal legal structures and services seems to be an unattainable luxury for the rural poor particularly.
A legal system can help promote poverty if it has laws that discriminate against the poor or which simply ignore their rights, interests or concerns. It is the duty of the state to ensure that justice is promoted on the basis of equal opportunity for everyone, regardless of status and location and it will be disingenuous to pretend that because of their penury, the poor do not have legal problems. On a practical level, making the law work for the poor requires the adoption of low-cost justice delivery models which takes into account issues such as cost, the capacity and willingness of the poor to pay for legal services keeping in mind the challenges faced by formal structures.
Recognition of the link between poverty and law in Sierra Leone
The vision of the government’s Justice Sector Reform Strategy and Investment Plan 2008-2010 is to have a country ‘where there is safety for people, security of property and access to justice. This is essentially one of the traditional functions of governments everywhere. Without a functioning justice system to address conflicts and grievances in an impartial and efficient manner, aggrieved persons will increasingly resort to self-help methods to address their justice problems, with very serious ramifications for an open and peaceful society. Against the backdrop of a cruel civil conflict that witnessed the almost total collapse of the country’s justice system, the Strategy gives room for optimism in that it aims to take justice provision to the people, ‘through a number of bold reforms’ which include considering the establishment of a national community based paralegal initiative to provide basic legal advice and assistance in partnership with civil society to the 70% of the population who do not have access to formal justice systems. This will be in addition to strengthening the quality of justice provided by local courts and chiefs by reinforcing supervision of these institutions. These are all very laudable goals.
Empowering the poor as a keystone of development
The adoption of a justice sector reform strategy at the local level is a reflection of a growing international awareness of the importance of access to justice in the fight against poverty. Economic solutions by themselves cannot entirely tackle the problem of poverty, or deal effectively with issues such as ‘deprivation, insecurity, exclusion and voicelessness’ which are known factors that impoverish people and keep them poor. Empowering the poor legally can help address such concerns.
Legal empowerment is a process through which the poor are protected and enabled to use the law to advance their rights and interests. It recognises that everyone should have to access to justice and that all the legal rights that are owed to an individual are respected without regard to that person’s status. It promotes development by giving voice to individuals and communities at the grassroots level to participate in decision making processes and consolidates good governance and accountability. Legal empowerment strengthens civil society and capacitates the poor to defend themselves against violations of their rights rather than helplessly waiting for someone somewhere to do something. Though legal empowerment of the poor addresses grassroots needs, its activities at community-level can impact on national laws and institutions.
Across the world, legal empowerment efforts have helped to bring communities out of poverty and given them a sense of purpose and dignity. In Namibia, legal reforms in 1996 created a framework for community-based management of natural resources which gave locals legal rights to manage wild life reserves. This resulted in a rejuvenation of the ecosystem, reduction of poaching activities, substantial increase in wildlife and new livelihood opportunities for the poor as eco-tourism took off. This is just one example of the many innovative ways by which poor people can be legally empowered to effect positive changes in their lives and this might be one of the biggest advantages of legal empowerment- its ability to fit any context or level.
Previous attempts at making the law work for everyone, particularly the poor have been almost entirely focused on building the capacity of the so-called supply side of justice- government institutions, mainly courts, with little or no attention paid to building the capacity of users of justice services who are meant to access these institutions on how to efficiently utilise these institutions or find other helpful alternatives. Legal empowerment in many ways seeks to rectify this imbalance and one principally effective and inexpensive way has been through the use of community-based paralegals. Paralegals can and do carry out a wide range of activities:
· Community-based paralegals can bring parties together to mediate, take witness statements and gather information, draft and deliver letters, assist citizens in navigating structures of authority, and organise communities to address their own justice problems.
· Community-based paralegals can educate communities, individuals and chiefs about laws governing a particular issue and legal processes
· Well-trained paralegals can provide many of the basic general and criminal services that clients of legal aid programmes need.
· Community-based paralegals are appropriately located to understand the issues and the form of intervention most suitable to a specific community or case.
· Community-based paralegals can promote problem-solving and good governance at community and chiefdom level.
It is no coincidence therefore, that developing countries are increasingly adopting the paralegal approach to justice service delivery to ensure access to justice for the poor especially those in rural areas. This model has proven to be substantially effective, far-reaching and flexible and costs considerably less than for example a lawyer-based model of justice service delivery to sustain. Also, given the resource constraints of developing nations, a paralegal model might more easily attract donor support than a lawyer-based model. Further, developing countries especially in Africa tend to have a bifurcated legal landscape with mostly poor people relying on traditional or informal institutions to solve their justice problems rather than on the formal one. A paralegal model has the advantage of plasticity and can work effectively across these systems. It can enhance the substance and fair application of customary law and make traditional institutions more accessible.
Where has this worked?
In many developing countries justice services organisations (JSOs) are working with the poor to enable them gain greater power over their lives. These organisations, through the use of paralegals, help the poor solve basic problems and overcome administrative barriers. JSOs not only make the rule of law a reality for the poor, but also improve their material circumstances and empower them to advance their own interest.
In Malawi, the Paralegal Advisory Services (PAS) has since 2000 been offering paralegal aid in criminal matters covering 84% of the prison population, 4 police stations and 4 court centres and providing basic legal education, through clinics, assistance and advice to prisoners. Over 10,000 prisoners have been reached and an independent evaluation found that prisoners had become more sophisticated in their understanding of the law and court procedure. The successes of PAS and other NGOs involved in justice service provision have led to several developments: the Malawian Law Society is considering including paralegals in a review of the Legal Education and Legal Practitioners Act 1965 and the draft Legal Aid Act 2005 formally recognises the role of paralegals as competent providers of basic legal advice, legal assistance and civic education and information about the law. In partnership with the University of KwaZulu Natal in South Africa, PAS has developed a two year diploma course for paralegals.
Paralegals play a huge and significant part in providing basic legal services to poor South Africans. Through over 260 Paralegal Advice Offices countrywide, paralegals help people learn about their rights and in this way give them the confidence to try and sort out their own problems in the future. They run public education programmes and encourage people to resolve disputes through methods which do not involve the law courts, such as negotiation and mediation. In certain matters, they do referrals to competent authorities for action. Several NGOs in the justice sector provide training and accreditation for paralegals. The Community Law and Rural Development Centre for example provide training and support for a network of 56 Paralegal Advice Offices in rural areas. At the end of the training, paralegals receive a diploma from the University of Natal. Currently, two draft bills on legal practice recognise the role of paralegals in the South African justice sector. In addition, a consortium of NGOs across five countries in the sub-region, including Lawyers for Human Rights have formed the Southern Africa Legal Cluster Assistance Project to lobby and advocate for the legal recognition of paralegals in southern Africa.
For over a decade NGOs have provided rural communities with access to primary justice services through community-based paralegals. The Legal Resources Foundation (LRF) for instance promotes access to justice through human rights education and empowers communities to claim and defend their rights. In 2000 a coalition of over 20 civil society organisations undertaking paralegal initiatives including LRF formed the Paralegal Support Network (PASUNE) to harmonise and standardise paralegal training and coordination. PASUNE has developed a curriculum for paralegal training and a manual to accompany it. The network is currently advocating for the enactment of legislation that would recognise and institutionalise paralegals within the justice sector.
Community-based paralegals are relatively new in the Moldovan legal system although NGOs had been successfully providing some level of legal aid services in rural areas. Legal aid reform in 2008 saw the recognition of paralegals and specialised non-governmental organisations in the new legal aid law as primary justice service providers. The paralegals will serve in the rural areas, solving basic legal problems in villages, implementing initiatives and teaching the inhabitants how to assert their rights. The reasoning for the adoption of this mixed model of legal aid provision was to ‘increase quality, accessibility and ensure reasonable cost of legal aid services’.
Far flung rural communities continue to benefit from the efforts of NGOs to provide basic justice services at the local level through community based paralegals or other similar mechanisms. Timap for Justice a local NGO has, since 2004, provided grassroots justice services in the Northern and Southern provinces of Sierra Leone and Freetown. Timap employs a frontline of community-based paralegals who engage in mediation, advocacy, organising, and education to address concrete instances of injustice. The paralegals are supported and supervised by two lawyers who also engage in litigation and high-level advocacy sparingly and strategically to address severe cases which the paralegals are unable to solve on their own. Timap has gained recognition from independent institutions such as the World Bank and International Crisis Group for developing a creative, effective methodology for providing justice services in the difficult and complex context of rural Sierra Leone. The success of this method of justice service provision is also reflected in government’s desire to partner with Timap for Justice and broader civil society to make community based paralegals widely available. Other non-governmental organisations are also providing justice services in rural areas through community based paralegals targeting vulnerable groups such as mine workers, women and children. There has been little effort by NGOs to harmonise, standardise or obtain formal recognition for their paralegal work in spite of its comparative maturity and resounding success. Paralegals continue to operate without any accreditation or common standard. However a golden opportunity to remedy this situation now presents itself in the form of the proposed legal aid framework for Sierra Leone and organisations involved in primary justice service provision ought to take advantage of it and canvass for a role within the proposed legal aid framework.
Of note is the fact that even developed countries utilise community based organisations for the delivery of basic legal aid services to their citizens. In England, Citizen’s Advice Bureaux and Community Legal Advice Centres provide a mix of legal services including legal advice, information and representation, education and community organising. These organisations are largely staffed by volunteers and receive funding from the government. Similarly in Canada, the province of Ontario hosts scores of community legal clinics which offer primary civil legal aid services to indigent persons. Staffed by lawyers and paralegals, these clinics provide eligible individuals with free legal information, advice and representation. They also engage in legal education and community development initiatives. In addition, the law schools in Ontario operate legal clinics where law students- supervised by lawyers- provide legal help to those who do not qualify for legal aid.
As the government develops a legal aid law in its bid to make justice accessible particularly by the poor, it is important not to lose sight of the imperative of designing a framework that will actually work, because ‘...the law on paper is often not enough to change the reality on the ground’. Measures to improve access to justice for the poor should concentrate on developing low-cost justice delivery models, like community-based paralegals, which have very high sustainability chances rather than intricate, costly schemes that may not be easily funded and have a short lifespan.
© Copyright by Awareness Times
Newspaper in Freetown, Sierra Leone.