Justice Initiatives: Legal Empowerment

128 Pages·2013·0.54 MB·English

Justice Initiatives
A publication of the Open Society Justice Initiative, Autumn 2013
Contents
Foreword
Legal Empowerment, Justice, 1 Legal Empowerment
and Development
George Soros
Preface Four billion people around the world live without the
Why Support Legal Empowerment 3
protections of the law, vulnerable to exploitation and
Justine Greening MP
violence, and often mired in poverty. Legal empowerment
Introduction
Legal Empowerment’s Approaches 5 has the potential to change this: to reduce poverty, further
and Importance the rule of law, and help people realize their rights. This
Stephen Golub
issue of Justice Initiatives looks at the promise and the
Case Studies
practice of legal empowerment. It is published in support
“You Place the Old Mat with the 15 of the Global Legal Empowerment Initiative, a platform
New Mat”: Legal Empowerment,
Equitable Dispute Resolution, and for interested donors and practitioners to build the fi eld
Social Cohesion in Post-Confl ict Liberia of legal empowerment.
Peter Chapman and Chelsea Payne
Within and Around the Law: 30
Paralegals and Legal Empowerment
in Indonesia FOREWORD
Ward Berenschot and Taufi k Rinaldi
Legal Empowerment,
Legal Empowerment for the 42
Protection of Community Land
Justice, and Development
Rights: Findings from the Community
Land Titling Initiative, 2009–11
Rachael Knight
George Soros
Legal Empowerment and the 59
Administrative State: A Map of the This edition of Justice Initiatives provides insights into legal
Landscape, and Three Emerging
empowerment, which is the process of increasing the capacity
Insights
Vivek Maru and Abigail Moy of ordinary people to exercise their human and civil rights as
The Legal Empowerment for 75 individuals or as members of a community.
Women and Disadvantaged Groups This process is crucial for people who are deeply impover-
Program: Innovations in Project
ished or belong to marginalized communities. Today too many
Design, Monitoring, and Evaluation
people enjoy none of the benefi ts of the rule of law. They live
Debra Ladner and Kim McQuay
in countries or regions where there are no functioning, un-
Transparency International’s 88
Advocacy and Legal Advice Centres: corrupted court systems or law enforcement agencies. When
Citizen Empowerment against they fi nd themselves under arrest, often arbitrarily, they do not
Corruption
enjoy the benefi t of defense counsel. When they are cheated by
Conrad Zellmann
an employer or have had their land seized by government-con-
Legal Aid Approaches in South 98
nected thugs, they cannot seek redress through a civil suit or
Africa and their Impact on Poverty
Reduction and Service Delivery criminal proceeding. When they have suffered acts of criminal
David McQuoid-Mason violence, they cannot turn to the police with any confi dence of
Sustaining the Process of Legal fi nding help. Millions of such people have no birth certifi cates
Empowerment 112
or national identifi cation cards, the documents required to ob-
Robin Nielsen
tain health-care benefi ts, to exercise the right to vote, to obtain
identifi cation documents for their children, or to hold title to
land and secure their rightful inheritance.
Legal Empowerment
How can developmental aid and foreign The campaign has not achieved its ma-
investment benefi t deeply impoverished jor targets, and its benefi ts have not been
people in places where they do not enjoy the spread evenly across the developing coun-
rule of law or have access to judicial insti- tries. But it has nevertheless become the
tutions or law enforcement agencies? How most successful global anti-poverty effort
can the sanctity of even the crudest contract in history. The percentage of people in the
exist under such conditions? The answers world surviving on less than the equiva-
to these questions are obvious. Without ac- lent of $1 per day in 2010, for example, was
cess to justice, extreme poverty cannot be about half of the percentage in 1990. More
conquered for these billions of people. girls are attending school. Fewer women
So can legal empowerment programs are dying in childbirth. More than two bil-
backed by external fi nancial and technical lion people have improved access to potable
support succeed in securing access to justice water.
for ordinary people? This book presents di- These successes strongly suggest that ex-
verse accounts of how programs to promote treme poverty—once thought to be ineradi-
legal empowerment have had a positive im- cable—can be reduced even further with the
pact on impoverished communities both in adoption of a new and better set of develop-
terms of human rights and on economic ment goals and with persistent and better
development. In India, local people are tak- coordinated work toward achieving them.
ing the lead in monitoring compliance with In the autumn of 2013, the United
environmental laws. In post-confl ict Liberia Nations General Assembly will open a two-
and South Africa, civil society and govern- year debate on the set of shared develop-
ment programs provide free legal advice to ment objectives to replace the Millennium
help poor mothers secure child support and Development Goals for the period from
access the state education system. In vari- 2015 to 2030. In preparation for this debate,
ous countries, paralegals are helping people the Secretary-General’s High Level Panel of
overcome corruption in order to secure gov- Eminent Persons drew up a set of recom-
ernment entitlements. mendations for a new shared development
This news could not have come at a bet- framework, which will guide development
ter time. Almost a decade and a half ago, aid. These recommendations affi rmed that
the United Nations, its member-states, and justice, human rights, and the rule of law
international and civil society organizations must be at the center of the international
launched a campaign to eliminate extreme community’s efforts to eradicate extreme
poverty around the world by the year 2015. poverty.
The United Nations unanimously adopted Legal empowerment programs can be
a set of eight specifi c goals, the Millennium effective. This is a message the leaders of
Development Goals, to provide this cam- the member-states of the General Assembly
paign with clear direction as well as bench- need to hear.
marks to measure its progress in efforts to
increase access to food and potable water, George Soros
provide primary education for all children, Founder and Chairman
and improve maternal health. of the Open Society Foundations
2 Open Society
Preface
PREFACE
Why Support Legal Empowerment
Justine Greening MP*, UK Secretary of State for International Development
It is my pleasure to help introduce Justice reduce poverty and vulnerability by helping
Initiatives: Legal Empowerment. poor people use laws and rights to gain
Many of us take for granted the fact that greater control over their own lives.
we can participate in politics, hold govern- The UK Government’s approach to legal
ment to account, and prote ct our property. empowerment is to tackle the everyday ob-
But up to four billion people around the stacles facing poor people across the world.
world don’t have these basic rights and free- In Sierra Leone, we are helping to develop
doms. They lack one of the key building a network of paralegals and community
blocks they need to build a safe, secure, and mediators. These are ordinary people based
prosperous future. in the community, who are given a basic
Legal empowerment helps tackle the schooling in the law and confl ict resolution.
causes of poverty, not just its symptoms. They, in turn, help others understand their
It is central to what David Cameron calls rights, resolve potentially violent disputes,
“the golden thread” of conditions that and address both individual and commu-
all successful economies around the world nity-wide problems. This work has a partic-
share: the rule of law, the absence of confl ict ular focus on addressing violence against
and corruption, and the presence of property women and girls.
rights and strong institutions. Legal empow- In Bangladesh, the UK’s investment in
erment can help people take control of their community legal services between 2003
own destiny and build a future free from and 2009 helped poor people (80 percent
poverty. of them women) resolve disputes over
It gives citizens the tools to push for law land, inheritance and dowries, and secure
reform, address grievances without recourse or recover assets estimated at £1.5 million.
to violence, protect women and girls, and Through our support for the Global Legal
seize opportunities to drive economic Empowerment Initiative, the UK is helping
growth. It can also result in improved to pilot a greater range of options, share les-
delivery of basic services: when citizens are sons, and identify solutions that represent
aware of their rights to health and education real value for money.
services, they are more likely to access them. Around the world, governments are be-
Legal empowerment approaches engage the ginning to recognize the potential of legal
full range of leadership in society, from empowerment to deliver justice, promote
governments to traditional village leaders, economic growth, and encourage long-term
helping them to promote and adopt positive social change. It is my aspiration that others
changes. will join Britain in supporting the kind of
This volume demonstrates the diverse work taking place in this exciting, evolving
ways in which legal empowerment can fi eld.
Justice Initiative 3
Legal Empowerment
Note
* The Rt. Hon. Justine Greening MP is the Secretary of State for International Development at the UK’s Depart-
ment for International Development. She is the Conservative MP for Putney, Roehampton, and Southfields.
4 Open Society
Introduction
INTRODUCTION
Legal Empowerment’s Approaches and
Importance
Stephen Golub* sketches an overview of populations’ control over their lives. To
legal empowerment as a concept and draws sketch what each of these component terms
lessons from its practice. means:
“Rights” includes international human
Around the world, nearly four billion people
rights standards, but in legal empower-
live without any legal protection, left with-
ment work more typically involves peo-
out recourse for the injustices they face dai-
ple’s entitlements declared or implied by
ly. Denied access to legal advice or courts,
national or local legislation, regulations,
often plagued by poverty and discrimina-
administrative rules, or court decisions.
tion, they have no means to exercise their
rights. Legal empowerment has the poten- “Laws” includes those adopted by legis-
tial to change this—to realize, for these four latures, but also includes administrative
billion people, the promise of the rule of law. regulations and processes as well as tra-
This volume addresses two key ques- ditional justice systems.
tions: How does legal empowerment oper-
“Specifi cally” conveys legal empower-
ate, and why is legal empowerment import-
ment’s emphasis on rights, laws, ser-
ant? The chapters that follow address these
vices, advocacy, and processes that focus
questions in different ways and to different
directly on benefi ting the disadvantaged
degrees. But taken together, they paint an
(improving their control over land or
insightful portrait of an evolving, expanding
protecting them against physical abuse,
fi eld.
for instance) as opposed to reforms that
This introduction provides a brief over-
may do so indirectly (such as strengthen-
view of the concept of legal empowerment.
ing judicial administration or business
It then summarizes and comments on key
investment rules).
elements of the subsequent papers. It con-
cludes by drawing together some common “Disadvantaged populations” mainly
themes and lessons running through the comprise the poor, but also include wom-
volume. en, minorities, and other groups suffer-
ing abuse, discrimination, persecution,
or repression.
A Brief Overview of the Concept
“Increase…control over their lives” in-
Various experts—including those represent-
cludes elevating or protecting people’s
ed in this book—defi ne legal empowerment
income and assets, but also involves such
in varying ways. However, these experts
attributes as strengthening their phys-
would likely agree that legal empowerment
ical security; effective access to health,
can be characterized as the use of rights and
education, and other services; input into
laws specifi cally to increase disadvantaged
Justice Initiative 5
Legal Empowerment
family, community, and governmental regarding their rights. They constitute a
decision-making; and building their ca- growing, cost-effective justice mechanism
pacities and power to pursue these goals in many countries.
on their own. Launched in 2007 by the United States-
based Carter Center in partnership with the
Much of legal empowerment refl ects Catholic Justice and Peace Commission (Li-
Nobel-winning economist Amartya Sen’s beria’s leading human rights organization),
notion of “development as freedom.” It in- the Community Justice Advisor program
volves increasing people’s freedom to im- (CJA) addresses issues that Liberian govern-
prove and live their lives, unburdened by ment institutions handle poorly if at all, not
unjust constraints. least the lack of accountability and respon-
The concept is partly defi ned by having siveness by those very institutions. For ex-
a legal element. Thus, where there is a le- ample, CJA paralegals successfully pressed
gal dimension in, say, women’s or economic a corrupt magistrate to return funds he stole
empowerment, it is one and the same as le- from a plaintiff. They similarly persuaded
gal empowerment. But as this volume illus- a prosecutor to arrest and secure the con-
trates, often it is power even more than law viction of a dangerous criminal who had
that is the key component of legal empow- brutalized a woman. The organization has
erment. proven instrumental in helping clients ob-
Legal empowerment is both a process and tain enforcement of a 2003 law that granted
a goal. The process involves the disadvan- women inheritance rights; otherwise, like
taged (and/or their allies) seeking to increase so much legislation in Liberia and else-
their control over their lives. Achieving such where, to a great extent this law would not
enhanced control constitutes the goal. be implemented. Initiatives such as CJA
help reduce the injustice that can fuel insta-
bility and frustrate development
Chapter Summaries
The authors illuminate other ways in
In “‘You Place the Old Mat with the New which CJA and like-minded efforts else-
Mat’: Legal Empowerment, Equitable Dis- where help ameliorate the impetus for
pute Resolution and Social Cohesion in renewed war in Liberia and new confl ict
Post-Confl ict Liberia,” Peter Chapman and elsewhere. They describe, for example, in-
Chelsea Payne describe how a communi- stances of CJA engagement that prevent
ty-based paralegal initiative carried out by ethnic and other hostilities in communities.
international and national nongovernmen- They assert that administrative law process-
tal organizations (NGOs) serves manifold es that paralegals handle—including those
justice needs in a post-confl ict society. In tainted by corrupt offi cials’ conduct—af-
the development context, paralegals are fect more people than do criminal justice
nonlawyers, sometimes from the very matters that international aid has tended
communities they serve and often trained to prioritize in Liberia. And they note the
by nongovernmental organizations, who elite-oriented nature of the country’s legal
employ their legal knowledge to educate, profession, which often ignores or acts to
advise, represent, or otherwise assist people the detriment of the poor.
6 Open Society
Introduction
More generally, Chapman and Payne aid, however. As implied by the chapter’s ti-
make the case for CJA and other civil society tle, paralegals can work within and around
legal empowerment initiatives in Liberia to the law by using a combination of legal
serve as both a complement and alternative skills, political acumen, and community
to the predominant “top-down” approach mobilization. A key feature of the article is
to justice issues taken by a post-confl ict how it plumbs the complex depths of the
United Nations international assistance society in which the paralegals work, where
mission and other donors in that country. police pay their superiors in order to be in
That approach has emphasized building position to engage in graft, where far more
courthouses, judicial offi cials’ capacities, people trust informal systems than the judi-
and other state institutional capabilities. ciary to do justice, and where a combination
In contrast, the authors point to empirical of ignorance and powerlessness can deprive
studies demonstrating that most Liberians the poor of their land and livelihoods.
pursue justice though community-based, The authors explore the contours of
traditional, or hybrid justice forums and these conditions via an ethnographic study
that Liberians see these forums as more af- (backed by more quantitative research)
fordable, accessible, comprehensible, hon- largely concerning how a corrupt local
est, and transparent than state institutions. leader and other offi cials capitalized on le-
But the authors do not denigrate aid to state gal ambiguities and farmers’ lack of legal
institutions; rather, they stress greater rela- knowledge to extract payments from them.
tive attention to the many everyday ways in The payments enabled the farmers to tem-
which paralegals can advance justice and porarily stay on their land, even though the
preserve social stability by working with old- corrupt individuals still threatened to expel
er structures rooted in the society. Hence, them from it. Two paralegals in particular
they favor a more balanced focus on both helped halt these practices and even got
types of work, placing “the old mat with the the leader jailed. But nearly a decade down
new mat.” the line in this saga, the community’s land
Ward Berenschot’s and Taufi k Rinaldi’s tenure remains tenuous. The authors fur-
“Within and Around the Law: Paralegals ther note, however, that the World Bank and
and Legal Empowerment in Indonesia” U.N. Development Programme projects that
complements the Liberia paper by pre- promoted and studied Indonesian paralegal
senting a granular case study of paralegals development were too short in duration to
spearheading a rural community’s struggle insure effective engagement with and ser-
to retain its land in the face of corrupt, pow- vices for many communities they aimed to
erful opposition. In the process, the chapter benefi t.
illuminates numerous important features Most of all, however, Berenschot and
of legal empowerment. Rinaldi come down in favor of recognizing
Though paralegals have a relatively limit- the inevitably political nature of much para-
ed presence in Indonesia, a landmark legal legal work (and by extension legal empow-
aid law adopted in late 2011 included provi- erment) in addressing power disparities in
sions for strengthening and expanding their many instances of injustice. They accord-
roles. Those roles can reach far beyond legal ingly suggest that, in addition to legal train-
Justice Initiative 7
Legal Empowerment
ing, paralegal programs should often seek the communities (and in which paralegals
to develop such skills as negotiating with were not active).
politicians and government offi cials, com- Among its many fi ndings, the study con-
munity organizing, and use of media. cluded that the full-service communities
Approaching paralegals from a differ- performed worse than the paralegal-assisted
ent programmatic angle, Rachael Knight groups across a range of indicators. These
reaches similarly supportive conclusions results must be viewed very cautiously. Still,
as the two preceding sets of authors. Her Knight hypothesizes that communities that
“Legal Empowerment for the Protection of developed the capacities and responsibility
Community Land Rights: Findings from to take on key tasks on their own according-
the Community Land Titling Initiative, ly took on more ownership over completing
2009–2011” discusses the fi ndings of a the processes involved and overcoming ob-
three-country study of pilot projects imple- stacles. She tentatively concludes that the
mented by the Rome-based International most empowering model of service provi-
Development Law Organization in cooper- sion for land documentation may be to train
ation with NGOs in three African nations. and assist communities themselves to do as
Knight notes the realities of African gov- much as they can, with attorneys and other
ernments granting huge land concessions professionals stepping in when legal, tech-
to foreign investors and the very weak im- nical, or political obstacles stymie the com-
plementation of laws designed to protect munities’ efforts.
citizens’ land rights and concomitant live- In “Legal Empowerment and Public Ad-
lihoods, social systems, and cultures. She ministration: A Map of the Landscape, and
argues that against this backdrop, it is es- Three Emerging Insights,” Vivek Maru and
sential to document communities’ custom- Abigail Moy carve out an important part of
ary land claims in a widespread, proactive the legal empowerment pie for analysis.
manner. Echoing elements of an argument by Chap-
With that goal in mind, the study em- man and Payne concerning Liberia, Maru
ployed randomized control trials, focus and Moy make a strong case that many peo-
groups, and observation of community ple with legal problems are more likely to
discussions to compare populations that fi nd redress through administrative agen-
received four different levels of assistance cies, offi cials, and regulations than they are
from the NGOs in documenting their land through the courts.
claims: “control communities,” which re- As part of this case, the authors point
ceived only basic, written legal information; out that administrative mechanisms can be
“education-only communities,” which also crucial for an HIV-positive South African
received monthly training; “paralegal-assist- woman denied disability benefi ts (and her
ed communities,” which were further aided daughter who then misses school to care
by community-based paralegals, with some for her ill mother and siblings), an impov-
back-up from legal and technical profes- erished Buenos Aires community initiating
sionals; and “full-service communities,” in action to be connected to the city’s water
which those professionals carried out more supply, and Filipino farmers fi ghting evic-
comprehensive documentation services for tion from their land by defending their cer-
8 Open Society
Introduction
tifi cates of ownership before a quasi-judi- by the Asia Foundation and partner NGOs
cial agrarian reform board. More likely than for the Asian Development Bank (ADB) in
not, in these and many similar cases people three Asian countries. These initiatives ex-
turn to such administrative processes rath- amined the experimental inclusion of legal
er than the courts in order to seek redress. empowerment elements in three major so-
This is because such processes have legal cioeconomic projects funded by ADB loans.
jurisdiction over such issues and they may The pilots involved strengthening citizen
be easier to work through. awareness of and citizen committees’ in-
The authors go on from there to argue put into services regarding water manage-
for an increased focus on three adminis- ment in Bangladesh, urban infrastructure
trative mechanisms that can make a sig- in Indonesia, and health care in Pakistan.
nifi cant difference in people’s lives: clearly Of course, much legal empowerment work
written and easily accessible statements of entails integration (often spearheaded by
administrative regulations, paralegals who NGOs) of legal and socioeconomic activi-
can help their fellow citizens understand ties. The foundation’s research, as refl ected
and get the regulations implemented, and in its 2009 report that this chapter summa-
feedback channels whereby citizens can air rizes, differs in its focus on such integration
grievances not only to seek redress but to in the context of MFI loans.
improve administrative rules and practices. The authors commendably acknowledge
In the process, they show how legal empow- factors constraining the research. These
erment can be one and the same with other included the short time frame (less than
approaches to helping the disadvantaged a year) for the pilot components, when in
become aware of and act on their rights: le- fact legal empowerment (like most develop-
gal aid, social accountability, and delibera- ment work) is a long-term process. There
tive governance. Throughout their analysis, also were various fl aws in the ADB projects
Maru and Moy assert a fundamental fact that the legal empowerment components
about legal empowerment, which is that it were integrated into. These ranged from
represents a practical, problem-solving ap- the delayed construction of water-specifi c
proach to integrating law and development infrastructure in Bangladesh (which in turn
by focusing on the injustices the poor en- impinged on the pilot legal empowerment
counter and engaging the institutions nec- work) to the virtual nonexistence of many
essary to provide relevant services or relief. health monitoring committees essential to
Debra Ladner and Kim McQuay docu- the legal empowerment component in Pa-
ment the challenges of and lessons learned kistan.
from integrating legal empowerment com- Nevertheless, a number of insights and
ponents into large projects supported by a indications of impact emerge from the Lad-
multilateral fi nancial institution (MFI) in ner-McQuay paper. The positive experience
“The Legal Empowerment for Women and of partner NGOs carrying out the pilot com-
Disadvantaged Groups Program: Innova- ponents confi rmed that while legal skills are
tions in Project Design, Monitoring, and useful, it is important to be politically sav-
Evaluation.” The chapter discusses mod- vy and not necessarily legalistic in eliciting
est pilot projects and research conducted cooperation from government offi cials. The
Justice Initiative 9
Legal Empowerment
paper further notes how knowledge about dividual cases to educate sympathetic gov-
matters ranging from nonformal education ernment offi cials about the severity of some
to community organizing to livelihood de- problems; where such offi cials take corrup-
velopment can be crucial in building legal tion seriously, such data can be persuasive.
empowerment. Finally, the research found The centers also belong to coalitions that
improvements in various kinds of knowl- press for institutional, policy, and legal re-
edge, attitudes, confi dence, and beliefs forms, including greater transparency in
about gender-equity as they pertained to the governmental operations and punishment
ADB-funded projects and related matters, for corrupt offi cials. While not naïve about
even given the limited duration of these ini- the obstacles it faces in many societies, TI
tiatives. feels that a blend of statistics, pressure, and
The governance aspect of legal empow- cooperation serves the ALACs best in get-
erment is highlighted in “Transparency ting governments to take action.
International’s Advocacy and Legal Advice The paper offers indications of impact
Centres: Citizen Empowerment against benefi tting individuals or spurring reforms.
Corruption,” by Conrad F. Zellmann. The The former include enabling a small busi-
paper discusses the expanding work of the ness owner in Azerbaijan to open a shop
ALACs, which were fi rst launched in three despite refusing to pay a bribe demanded
nations in Southeastern Europe in 2003 by authorities; a similar case in Armenia,
as simply toll-free hotlines. Now found in whereby market vendors successfully re-
roughly 50 of the over 100 countries where fused to pay off corrupt tax offi cials; and
Transparency International (TI) has inde- a community in Rwanda that prevailed
pendent but affi liated national chapters, and against a dishonest (and eventually jailed)
coordinated by those chapters, the centers cooperative president who had forged doc-
have become considerably more sophisticat- uments to assert his ownership of a gold
ed over the past decade. Well over 100,000 mine. The reforms include increased access
people have contacted them in person, by to offi cial information in Croatia and the
phone, via community outreach activities Czech Republic; steps against smuggling
and, increasingly, online. along the Mexican-Guatemalan border that
ALACs serve two main, entwined func- was harming legitimate local businesses;
tions. First, their paralegals, attorneys, and action against traffi c offi cials’ bribe-taking
other personnel provide advice and assis- in Ghana; and increased media and donor
tance (though usually not representation) attention to large-scale abuses of property
for witnesses, victims, and whistleblowers rights in Georgia.
concerning corruption. Help from the cen- Focusing on a nation whose experience
ters varies from place to place and issue to spans much of the legal empowerment
issue, but can include referring people to spectrum, in “Legal Aid Approaches in South
the appropriate government offi ces, oth- Africa and their Impact on Poverty Reduc-
er civil society organizations, and even the tion and Service Delivery,” David McQuoid-
media to report problems and seek redress. Mason illuminates the multi-faceted “how”
On a more systemic level, ALACs employ and “why” of legal aid in his country—that
the data fl owing from the compilation of in- is, the many ways in which it operates and
10 Open Society