March 27, 2014 – Akhila Kolisetty
Globally, approximately 4 billion people live beyond the reach of the law, lacking the protection of a robust justice system to investigate crimes, apprehend criminals, resolve disputes, and provide civil justice and redress for injustices they have experienced.
In the United States, we are living in the age of mass incarceration and over-criminalization of minor offenses. Yet, rule of law is often poor in developing countries where the legal infrastructure simply does not exist to prevent crime, resolve disputes, and protect individuals from violence. Common problems that the poor have are similar worldwide, and may involve issues of domestic and gender-based violence, family law, criminal justice, or property and housing rights. Having access to a lawyer and effective policing can be crucial for the poor; it can protect women from sexual or gender-based violence, get innocent men out of lengthy pre-trial detention and back to their families, ensure farmers and women have access to title over their land, and provide an indigent woman with child support. Access to legal aid can thus help pull people out of poverty, promote women’s empowerment, and prevent violence. More broadly, the rule of law is vital to promote economic development and stability in developing and post-conflict nations; a strong justice system provides businesses and investors with confidence that they can enter a market and have recourse to the courts if needed. Thus, strong justice institutions are key.
In Sierra Leone, Bangladesh and India –where I have worked on access to justice initiatives – I have often seen that the legal system is simply not equipped and accessible to the poor. Police institutions are often underfunded, low paid, and not provided with proper investigative training and resources they need to do their work; thus, they often turn to corruption due to the lack of support, low salaries, and knowledge of impunity. The courts themselves are inaccessible to most of the poor, particularly those who live in rural areas, by virtue of distance, cost (often in bribes paid to court officials), and the lack of access to lawyers. Further, the formal justice system is often slow to proceed and cases may be pending for years without movement. Beyond these barriers, courts are often culturally distant, threatening and unfamiliar to the rural poor. In Sierra Leone, Bangladesh and India, I have witnessed poor communities regularly turn to informal justice mechanisms instead; these are culturally familiar, close to home, cheap, and often composed of respected village elders who mediate disputes and issue resolutions. Unfortunately, these mechanisms can often tend towards being patriarchal in nature. Examples abound of situations where a rape victim is forced to marry her rapist, or where a survivor of domestic violence is urged to stay with her husband on his promise that he will no longer beat her – with no guarantee the violence will actually end.
Yet, informal justice mechanisms have many useful principles that we can draw from. Many programs now are beginning, at the grassroots level, to address the lack of access to justice by promoting the use of paralegals – who are often mediators, victim advocates, and community organizers combined. Paralegals can mediate disputes (for example, to get a client child support), assist clients in accessing formal legal and government institutions and benefits, inform indigent communities of their rights, hold the police accountable, support victims of violence in accessing services, and even organize communities to solve problems they collectively face. This model has successfully been employed in Sierra Leone by Timap for Justice, by BRAC in Bangladesh, and is now being supported at the global level by Namati (a LIDS partner this semester).
At the same time, we cannot end with grassroots approaches to accessing justice and resolving disputes. Gender-based violence – for example – is an issue that simply cannot be easily addressed without the coercive power of the courts and law enforcement. Domestic abuse cannot be mediated away, and requires reform of the courts at the highest level. For this, we simultaneously need to properly train lawyers and judges, invest in legal aid schemes and centers, address the corruption within the courts, and improve efficiency in the processing of cases. The formal justice system needs to be strengthened to ensure recourse to the courts is possible. Only a combination of top down and bottom up approaches – strengthening grassroots access to justice and reforming formal justice systems – will ultimately ensure rule of law and access to justice for the poor.