Conceptions of Access to Justice

The development of this concept paper/article has been informed by a facebook posting on the meaning of access to justice in the Ethiopian context. In commenting on that post, I have mentioned the various meanings that can be attributed to ‘access to justice’. Here is what I meant. Access to justice could be understood in various ways among which the three major conceptions are: as a right recognized under the international human rights framework, as an approach to public sector institutional reform, and a comprehensive rights-based development framework.

2 Access to Justice as a Right

Access to justice and fair trial are rights recognized under the major international and regional human rights instruments including: the Charter of the United Nations, the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (CESCR), the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). The core instruments on the issue, the UDHR and the ICCPR, state that everyone is equal before the law and has the right to effective remedy against violations of fundamental rights. Thus, access to justice is a fundamental right that generally guarantees every person access to an independent and impartial process and the opportunity to receive a fair and just trial when that individual’s liberty or property is at stake. However, access to justice does not always involve judicial recourse but the availability of accessible, affordable, timely and effective means of redress or remedies.

3 Access to Justice Approach

The ‘access-to-justice approach’ has brought important implications on the conceptual understanding of access to justice. The approach has a broader scope covering “the full panoply of institutions and devices, personnel and procedures, used to process, and even prevent, disputes in modern societies” rather than the focus on access to legal institutions and their services. In the access to justice approach, access to legal services has become part of wider strategies aimed at legal and institutional reform, and achieving equal and equally effective access to law.

The absorption of access to legal services into access to justice approaches was more pronounced in developing countries where donor agencies, NGOs and other non-state actors have introduced a broad conception of the justice system. Such conceptions covering a wide range of institutions outside the formal system have placed measures for the implementation of access to justice within a framework of strategies targeting access to formal, informal and traditional systems.

4 Legal Empowerment of the Poor

Legal empowerment of the poor (LEP), which has become prominent since 2000, is generally understood as “the process through which the poor become protected and are enabled to use the law to advance their rights and their interests, vis-à-vis the state and in the market.” The LEP approach has been adopted by different organs of the UN and other international development actors.

LEP encompasses a range of diverse approaches and strategies adopted by development actors to address critical development and governance issues in specific contexts. However, LEP/legal empowerment has been defined as a rights-based strategy to promote safety, security, and access to justice through the use of legal services and related development activities to increase disadvantaged populations’ control over their lives.

Definitions of LEP (Source: USAID, March 2007)

Asian Development Bank (ADB):“[Legal empowerment of the poor] involves the use of law to increase disadvantaged populations' control over their lives through a combination of education and action.” (Golub and McQuay, 2001, p. 7)

Carnegie Endowment:“Legal empowerment of the poor is a rights-based strategy for improving governance and alleviating poverty ... [and involves] ... the use of legal services and related development activities to increase disadvantaged populations’ control over their lives.” (Golub, 2003 [pp. 3])

World Bank (WB): “Legal empowerment promotes safety, security, and access to justice and helps poor people solve problems and overcome administrative barriers.” (Palacio, 2006 [pp. 15])

High Level Commission for Legal Empowerment of the Poor (HLCLEP):“Legal empowerment of the poor expands the rule of law to the benefit of all citizens, rich or poor, men or women, rural or urban, and whether they belong to ethnic majorities, indigenous people, or other minorities.” (Palacio, 2006 [pp. 15])

USAID: “Legal empowerment of the poor refers to actions and processes, including but not limited to legal reforms, by which the poor are legally enabled to act more effectively to improve their economic situation and livelihoods, allowing them to alleviate or escape poverty.” (Bruce et al., 2006 [pp. 9])

In terms of interventions legal empowerment involves four interrelated tasks:

(1)           Reforming Law and Giving the Disadvantaged Voice: Ensuring that the disadvantaged are able to influence the development of policy and law and enhance their rights through democratic and transparent political processes – rights enhancement.

(2)          Providing Knowledge as a Means for Empowerment: Making sure that the disadvantaged understand their rights and the processes by which they can be exercised and enforced—rights awareness.

(3)          Leveling the Playing Field: Ensuring that the disadvantaged are able to overcome bureaucratic and cost barriers that broadly affect their access to economic opportunity and wealth generation—rights enablement.

(4)          Providing Access to Enforcement: Making sure that the disadvantaged can protect their rights in and access to opportunities and assets through affordable, fair mechanisms for enforcement of rights and contracts and dispute resolution—rights enforcement.

From a programming standpoint, interventions that seek to legally empower the poor can be categorized by the extent to which they require changes in the law. Interventions to legally empower the poor can be divided into four categories (USAID, March 2007):

(1)   Interventions that involve major constitutional or legislative change;

(2)  Interventions that involve major institutional change (which will usually require major legal change);

(3)  Interventions that only require changes in regulations or ministerial instructions or that can be accomplished within the ministry or other agency concerned; and,

(4)  Measures that can be undertaken without any legal change or through changes in practice.

A recent review for the World Bank identified six categories of access to justice efforts within an LEP framework in its practice. These are: court reforms, legal aid, information dissemination and education, alternative dispute resolution, public sector accountability, and research.

5 Relevance and Implications

The different conceptions of access to justice have direct and significant implications for the nature of measures implemented at the national and sub-national level. The narrow ‘access to judicial services’ interpretation would suggest a response defined by the provision of legal aid services to those who cannot afford it. The broader understanding of access to justice within the context of governance and rule of law would imply a response emphasizing institutional reform in the justice sector. Finally, the rights-based conception of access to justice represented by LEP entails a three-fold strategy involving:

-        Harmonization of normative standards to create an enabling environment;

-        Multi-sectoral institutional reform to enhance the capacities of institutions responsible; and,

-      Empowerment of vulnerable groups (knowledge, skills, organization, and resources) to ‘access’ the governance system in pursuance of their economic, social and political interests.