Promoting Access to Justice and Anti-Corruption in Fragile Contexts: A Mixed Approach by Legal Empowerment

23 April 2019   ·   Jens Deppe

Justice sector reforms often take a backseat in immediate post-conflict settings. They are however needed to address corruption and to achieve societal inclusion. Pragmatic programs based on a human rights approach, geared towards legal empowerment, should be a priority in fragile contexts.

When it comes to the rule of law in post-conflict and fragile states, one may ask whether it makes sense to invest in state justice systems. After conflict, and similarly in states with dysfunctional justice systems, asking for justice and impartiality seems to be futile. Not one of the low-hanging fruit in reconstruction, other tasks take precedence over justice: jobs, health and security figure much higher in many donor strategies. Especially right after conflict, the reconstruction of daily life has priority, and justice appears to be a luxury reserved for the rich.

It also holds true that ordinary citizens do not derive immediate change to their lives from technical international support to a national justice system. Development work in the justice sector often happens to be far away from the people, at a sound distance from poverty and sometimes even ignorant of peoples’ lack of access to the institutions supposed to grant civil, social and economic rights.

Does it make sense to invest on state justice systems right after conflict?

Similarly, in fragile states, there are doubts about the value of justice sector reform. The whole of a state can be captured by a small interest group, and corrupted by politicians with ties to business. The most likely outcome is a corrupt justice system and a fragile state – corruption as well as fragility in terms of political legitimacy, monopoly of state power and public service delivery are likely outcomes. Education, health care, and even public transport – nothing works unless you pay.

Consequently, the judiciary – the third, and often by far the weakest power of state – is rarely the spearhead of reform. This raises the question whether support for justice sector reform should be limited to better-off countries: “Does it make any sense to invest in strengthening state justice systems right after conflict? Do legislative work, training and institutional capacity development bring about benefits in a fragile state?

At first glance, one is tempted to resign and say "No!" – Political will, justices with integrity and judicial independence appear to be necessary prerequisites for any attempt to strengthen law enforcement and anti-corruption. Still, two important concerns should not remain unaddressed: The principle of "Leave No One Behind" (Agenda 2030) and the case of ever-growing corruption.

Linking access to justice and anti-corruption

First of all, how can we reach out to the people, meaning all of them? Reconstruction has to address the challenge of including those into service delivery who might be, for various reasons, left behind (e.g. ethnic or religious minorities, poor and disadvantaged people living in remote areas). Besides, people are asking for justice. After conflict, they feel powerless and deprived of their rights. What can be done to improve access to justice immediately, in a way that citizens welcome right after conflict?

Moreover, there appears to be a link between access to justice and corruption. Injustice and inequality are often exacerbated by endemic corruption. There is an obvious correlation between the failure to deliver public services, on the one hand, and bribery and abuse of power by public officials on the other. What is more, right after conflict, when a country is at the crossroads and state institutions are weak, public life appears to be especially vulnerable to corrupt practices.

Legal empowerment: best fit over best practice

As a consequence, one should seek to combine step-by-step institution building (medium and long-term) with immediate legal empowerment (short and medium-term). In my view, after conflict, direct intervention in favor of the people should be the priority. The right approach would be “best fit over best practice, function over form, locally driven over externally imposed, and political pragmatism over normative ambition”.

Here the concept of legal empowerment can help. It holds that a citizen-centered view of affordable, fair and inclusive justice starts with legal identity and a human rights based approach. Legal empowerment is ‘the process of systemic change through which the poor are protected and enabled to use the law to advance their rights and their interests as citizens and economic actors’ (see the 2009 report of the Secretary General of the UN on Legal empowerment of the poor and eradication of poverty).

As Lars Waldorf writes: “Rights enhancement involves more inclusive law-making processes and pro-poor law reform. Rights awareness is often accomplished through legal literacy campaigns. Rights enablement typically consists of legal aid in the form of pro bono lawyers, community paralegals, and university law clinics. Rights enforcement includes state courts, ombudsmen, national human rights institutions, alternative dispute resolution, and customary justice. Hence, legal empowerment is more than access to justice.” In other words, it “connects the top-down /supply side (the state’s protection of the poor) and bottom-up /demand side (the poor’s use of law).

Addressing corruption at an early stage

Beyond the original emphasis on property, labor, and business rights, the UN also includes education, health, and housing rights. Although legal empowerment and social accountability are not the same, both “are fundamentally concerned with strengthening the social contract between the state and the poor, particularly where normal channels of political accountability are insufficiently responsive”, that is, particularly in a situation after conflict, and in fragile states.

At the same time, legal empowerment can serve as a decentralized way to deal with corruption at an early stage, long before thinking about tackling corruption directly, by measures of investigation and criminal sanction. Legal empowerment enhances corruption-free access to justice, and increases state responsiveness to the people. It improves transparency and accountability of municipal and state institutions, such as when people rightly ask: "Why do we not get the same public service? Why in fact do we have to pay for it? Why are our rights being ignored?"

Having cited this bottom-up approach, I certainly do not wish to make the case against justice sector reform in the classic sense. Building court rooms, qualifying judges, publishing the law and creating the necessary legal framework for an effective and efficient justice system are important measures which often need external assistance. They also represent a direct contribution to peoples’ access to justice. These improvements are a prerequisite for legal certainty and a free and competitive market economy. As theory goes, by applying the law, judges and lawyers will uncover the failures of state institutions and public services, and compensate for the dominance of private companies.

Combine legal empowerment and structural justice reform

However, I would like to suggest starting with measures of legal empowerment in difficult situations, and continue them while first steps of structural justice sector reform take place. In the long run, both sides are needed in order to establish the rule of law: the state granting rights, and the people asking for them.

What is more, both sides need to be connected. In many countries, paralegals build bridges between the poor and marginalized and the state institutions. Besides a (traditionally weak) state legal aid system, the services of paralegals are indispensable for a justice system which moves closer to the people and guarantees equality before the law. For example, paralegals help to ensure that under-trial detainees are not forgotten, and that men and women are treated equally. Paralegals refer to qualified lawyers in case legal assistance is needed.

For the sake of direct help and immediate effect, international support for fragile and post-conflict states should start at the local level, be it the first instance state or local courts, or another, traditional or customary place for the solution of conflict, as well as justices of peace. As the first point of contact of the citizens with the state, strengthening first instance courts and local facilities of alternative dispute resolution should be prioritized. Here is the place to reduce inequality, to mitigate inter-group tension, and to strengthen social cohesion. It is therefore crucial to see access to justice, anti-corruption and state-building as one, and to start early in fixing the state justice system – via legal empowerment.

Rechtsstaatsförderung Korruption

Jens Deppe

Dr. Jens Deppe is Senior Planning Officer on Administrative Reform and Rule of Law at the German Corporation for International Cooperation (GIZ). This contribution solely reflects his personal opinion.