legal empowerment

21 articles in category legal empowerment / Subscribe

As someone who is a big proponent of a “holistic legal services model,” I was incredibly excited to hear about a program launched in 2013 with support from the Kresge Foundation. The program, the Holistic Legal Assistance Network (HLAN) is hosted within Rhode Island Legal Services, and utilizes a holistic approach to identify and address the underlying social problems preventing an individual from moving forward out of poverty.

This program implements exactly the model I have been advocating on this blog for a while. The program integrates both legal and non-legal support and strategies and provides a continuity of care across the spectrum of a client’s social and legal problems. This holistic approach allows the program to attack the root causes of poverty as opposed to simply addressing the symptoms at a surface level, and by linking to other social service organizations and partners, aims to vastly increase the client’s access to necessary services. In addition, the program continues to follow-up with clients even after specific legal and social problems are addressed.  An initial evaluation seems to reveal positive results, but I think more robust measurement of impact in this and similar models will be helpful to test assumptions and also provide a persuasive force to other legal service providers across the country.  This powerpoint is incredibly helpful and captures many of the underlying goals of a holistic program; the barriers; and how to address them.

Indeed, the presentation accurately points out two key barriers: funding for such programs, and internal culture. Funding is often a challenge, since providing holistic care requires deeper support to each client, and can be enhanced by the hiring of an in-house social worker. This would be a great place for foundations to intervene and work with legal services organizations to supplement their work. However, even without additional funding, legal services organizations can reframe their referral process to develop close connections with social service organizations in the area, enabling greater continuity of care for clients. In addition, the culture of legal organizations is often such that there is a reluctance of lawyers to become involved in clients’ non-legal issues – often because of time – but also at times because lawyers do not feel well-equipped, perhaps are uninterested in addressing such issues, or feel it is not their role. Additional training and support can enable lawyers to think more “holistically” when working with clients, even without the addition of substantial additional resources or financial support.

Regardless, I am incredibly heartened to see a legal services organization taking this on and combining the language of holistic services with community lawyering – and at the same time, to see a foundation beginning to invest in this particular model. With more measurement to prove that this does, indeed, work, more funding may also come into play as donors want to support models that they believe will succeed.

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Recently, the new post-2015 agenda has been determined — and it’s called The 2030 Agenda for Sustainable Development.  After advocacy by civil society organizations, the new 2030 agenda includes — for the first time — targets on justice and governance, recognizing the importance of fundamental rights, transparency, accountability, and access to justice to sustainable and stable societies.

Goal 16 is “Promote peaceful and inclusive societies for sustainable development, provide access to justice for all and build effective, accountable and inclusive institutions at all levels.”  This goal, impressively, includes reducing all forms of violence; ending abuse, exploitation, trafficking, and violence against children; promoting the rule of law; ensuring equal access to justice for all; reducing corruption; developing effective, accountable, and transparent institutions; providing legal identity for all; strengthening national institutions; and promoting non-discriminatory laws and policies.

This is fantastic news and provides ample space to further develop metrics and more quantitative, detailed indicators for measuring progress.  There are, however, concerns — that the scope of the new targets in the 2030 agenda are too broad, and that it may be difficult to once again communicate the importance of these new goals to the world. Indeed, measurement might be particularly tricky: when it comes to justice and governance, there is often little consensus on even basic definitions.  What does it mean to promote the rule of law, to ensure ‘access to justice’ and to develop an accountable institution? A lot of aspects of justice systems can be complex, and there is not always a clear definition or indicator of these terms. But this is now an opportunity to discuss and develop some sort of consensus on these issues — and actually make concrete progress and put real international commitments towards making access to justice and governance a reality.

 

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In the worldwide movement to end domestic and gender-based violence, most efforts to combat violence against women and girls fall into two spheres: so-called prevention and response — similar to interventions in other realms, such as the healthcare field.

‘Prevention’ efforts approach gender violence with the idea that breaking down systems of patriarchy and oppression is the ultimate goal, and the root cause of gender violence. If we can disrupt the patriarchal order, we can begin to more effectively reduce and end gender violence. Many prevention efforts seek to change social and cultural norms as an attempt to reduce gender inequity. By changing patriarchal mindsets and attitudes – by shifting culture, which is never static – it may be possible to actually shift society in a more equitable direction. Many campaigns in the prevention realm thus focus on efforts such as: educating communities about domestic and gender-based violence; educating children on sexuality and healthy relationships; empowering women to be stakeholders and political leaders with power; changing unjust laws and policies and implementing better ones; and changing the portrayal of women in ads, mass media, music, and entertainment. Movement building and coalition building can also aid in challenging and changing unjust laws and structures that allow violence to perpetuate.

On the other hand, response is the area I have been largely focused on. As a (hopefully!) soon-to-be attorney, my mind is automatically drawn to solutions targeting the treatment of survivors after they have been abused. After being subject to abuse, are survivors they receiving the legal and social support and services they need? The response considers a holistic response to gender violence: legal aid and access to justice, safe housing, economic support and employment opportunity, childcare, protection by the police and an order of protection, social support and networks, and land/property rights. And on the criminal side, is the perpetrator apprehended, and ideally – rehabilitated?

In many ways, the ‘response’ is a limited solution, though. Response means the system has already failed the survivor at some level — she has been subject to abuse already. It also does not necessarily prevent the violence from being perpetrated again by the same abuser on the same victim/survivor, or a different one. However, research does indicate that access to a lawyer can increase the likelihood of obtaining an order of protection – and that about 86% of women who received a protection order or restraining order state that the abuse greatly reduced or stopped. At the least, then, the ‘response’ has a positive impact by reducing violence for the survivors who receive help; and at the most, taking action may have a deterrence effect on abusers who are prosecuted, experience the consequences of their actions, or obtain therapy/counseling to understand their behavior. In this way, ‘response’ can also be prevention in itself if it is implemented effectively.

The Response: Accessing Justice

Within the spectrum of responsive service delivery for survivors, access to justice is just one of the prongs. But interestingly, in one study comparing numerous social and legal service programs, only legal services was found to significantly reduce a woman’s likelihood of abuse – as noted above, in large part by facilitating the receipt of orders of protection – but also by providing the survivor with assistance on economic matters, thus increasing her financial stability and independence. Access to justice, then, has a measurable impact. It may not end domestic violence, but plays a vital role in ending domestic violence for survivors and may pay dividends to the extent that it can also increase defendant accountability.

The “justice” component really has two prongs:  civil and criminal.  Access to civil legal services can aid the survivor in moving forward and healing, and prevent further violence against her.  The criminal justice response, however, focuses largely on preventing the perpetrator from committing abuse again — and may have a broader deterrent effect, at the optimistic end.

Will access to justice end domestic violence in the world? Probably not; these efforts will need to be supplemented by the prevention components detailed above. But, can we end domestic violence without access to justice? It seems less likely.

Zooming out to the situation worldwide, there seem to be a few key barriers to effective access to justice, both civil and criminal.

1.  Lack of access to lawyers for the poor:

First, the poor – and survivors of gender-based violence – all too often lack access to a lawyer in civil cases. In the U.S., there is no ‘civil Gideon’ — no right for the poor to access a lawyer in civil cases.    This is the case in much of the world.  This makes access to a lawyer incredibly difficult for the poor, who face numerous — countless — barriers. These include the cost of hiring a lawyer, physical distance to a lawyer’s office or a court, the language barrier – particularly for those who are illiterate, as well as a ‘cultural barrier.’  I have seen firsthand how a survivor of domestic abuse in rural Bangladesh, for example, cannot easily go to an attorney. She faces numerous cultural barriers in that going to court may be seen as inappropriate and as taking a private, family matter ‘outside’ the allowed zone. This, then, becomes insolent behavior to be further punished. There is an informal, mandated culture of silent suffering for survivors of gender violence. In addition to this, lawyers are often seen as highly educated and in a different social class, and thus less relatable for low-income individuals. And finally, many communities utilize customary justice or alternative forms of dispute resolution, and may be unfamiliar with the formal legal institutions in place.

Solutions need to tackle increasing the number of trained lawyers and lawyers providing free services to the poor, and must make it more desirable for lawyers to provide justice for the poor. Currently, this is not a prestigious option in many countries. Incentives must be provided to attract more lawyers to this space – and salaries and job opportunities are key!   The most sustainable solution might be government-funded or subsidized legal aid. Other options are promoting paralegal corps to provide justice services at a lower cost, and in a form far more accessible to communities.

2.  Lack of appropriate laws in place:

But even where the poor have access to a lawyer, the right laws may simply not be in place. In the U.S. it is possible to generally obtain an order of protection, or to obtain sole custody of the children as a woman, or to obtain a divorce and equitable distribution of marital property including title to the marital home. Survivors of sexual assault can, generally, benefit from rape shield laws preventing prosecutors from inquiring into the survivor’s past sexual behavior. And those in a same-sex relationship can generally avail themselves of laws relating to GBV.  There are sexual harassment laws in place protecting one in the workplace.  In certain countries and regions, these laws may not exist. It is not always possible to obtain title to the marital home and avoid homelessness, or to shield inquiry into past sexual history. Marital rape remains legal in much of the world.  In such a situation, the just laws must be in place for access to justice to become a reality for survivors.  Without the laws, ‘justice’ is meaningless and in fact, impossible.

3. Systemic barriers in the justice system:

Formal justice systems are often not accessible for the poor due to systemic barriers — even if a survivor obtains a lawyer.  A single case can take years, even decades in an inefficient justice system with backlogs of thousands of cases.   Case backlogs may sound innocuous and technical, but they can be incredibly dangerous in allowing injustice to perpetuate.   Reports have documented that individuals are kept in pretrial detention for 10 or 15+ years, often because of inefficiencies and backlogs in the justice sector.  In addition, judges may not be well trained on the law, or may harbor patriarchal biases themselves. Finally, corruption in the system often prevents the poor from moving forward with their case, and contributes to backlogs.

4. Systemic barriers in police accountability:

Finally, prosecution or enforcing a restraining order can be effective only with the assistance of the police. In many places, police accountability and effectiveness is limited. The reasons are numerous: the police as an institution are often underfunded and lack the resources to track down offenders and implement the law, particularly in poor countries; the police may have poor training on dealing with gender violence cases; the police themselves may harbor patriarchal biases against intervening in gender violence cases; and the police may also be corrupt – sometimes a consequence of poor salary and support from the institution.  Without the help of the police, it can be near impossible to enforce the law and keep survivors safe. What is the solution? This one is a bit harder; it might require a combination of funding and training — and governments simply need to make it a priority to well-equip police to fight crime. More female police officers may also be a small part of the solution.

Ultimately, if these 4 barriers are addressed, access to justice can become much more a reality, even for poor survivors of gender-based violence.  While improving access to justice will not end violence, if it is implemented effectively, it can reduce it for survivors and may have a deterrence effect that is felt throughout society.

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Hello friends! Yet another (shameless?) plug: I recently organized an Online Symposium for the Harvard Human Rights Journal on access to justice, particularly via customary and informal systems, and we received a range of fascinating submissions from scholars and practitioners around the world. Read more below and check out these illuminating articles:

From the Informal to the Formal: Examining Access to Justice and Customary Justice Mechanisms 

The HHRJ Online Symposium this year centers on issues of access to justice to the poor around the world, with a particular focus on examining the challenges that exist within informal, customary and traditional mechanisms of dispute resolution.

In many countries, the formal state-governed justice system exists alongside various informal methods of justice delivery and dispute resolution, often termed “informal,” “non-state,” “traditional,” or “customary” mechanisms. Due to the barriers faced by litigants attempting to access the formal justice system, many have began to shift a focus to informal methods of dispute resolution in a range of cases – such as family law, land and property disputes, and issues of economic and social rights. There has been an increased emphasis on mediations and on engaging with informal justice mechanisms that already exist at the grassroots level, such as the  shalish in Bangladesh, the bashingantahe in Burundi, or the shura Jirga in Afghanistan. Although informal systems of dispute resolution are often more accessible and familiar to communities, they come with their own challenges and considerations, particularly in relation to gender and human rights norms.

Alongside such concerns, however, there have been innovations and experiments that are promising in their initial stages, improving access to justice in ways that comport with human rights norms, both via formal state-run systems as well as NGO-led and non-state mechanisms.  We have published five pieces by leading scholars, academics and practitioners in this field that build upon this theme and explore in greater depth the complexities inherent in working to promote grassroots access to justice to communities, and especially the added questions raised by customary justice systems:

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Today (after a long pause between ‘Feature Fridays!’) I’d like to highlight an exciting new community-based lawyering organization in Nigeria, Justice and Empowerment Initiatives.  I’m truly excited about their approach, which truly aims to be far more community-based and involves not just litigation but community paralegalism, advocacy, and mobilization/movement-building.

JEI’s three prongs of work are: training community-based paralegals, engaging in movement building, and finally – strategic advocacy. JEI trains, monitors, and supports networks of individuals providing community-based paralegal services in rural and urban poor communities in Nigeria. A particularly exciting aspect of their model is their community-owned initiatives in Nigera. JEI helps to set up a membership association called the Community Legal Support Initiative (CLSI).  Before joining CLSI, communities set up  ‘community legal support committees’, which join the membership of CLSI and take an active role in overseeing and implementing activities to support paralegal services. CLSI subcommittees work closely with JEI to train, supervise, and mentor paralegals who show capacity and commitment to justice.

Second, through the paralegal network and more broadly, JEI supports movement-building and inter-community solidarity within and between poor and marginalized communities. Finally, when necessary, JEI undertakes strategic advocacy or litigation to backstop the work of paralegals and the activities of the broader community-based movement.  JEI provides direct litigation and advocacy support to individuals and communities in need. Priorities for strategic litigation and advocacy are identified by communities. JEI undertakes litigation before Nigerian courts, regional/international human rights bodies (e.g. ECOWAS Court or the African Commission on Human and Peoples’ Rights), and advocacy before the National Human Rights Commission or the World Bank Inspection Panel. JEI works to make this sustainable through the Community Legal Services Initiative, where member communities establish community-managed funds for litigation and advocacy.

Check out this video highlighting JEI’s work in the Otto Ilogbo community in Lagos, Nigeria, which has been sacked by fire and violence that has chased hundreds of innocent residents from their homes.

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Hello, friends! I am excited to announce that I’m organizing an online symposium for the Harvard Human Rights Journal on a topic I am deeply passionate about:  assessing barriers to and successes in promoting access to justice to the poor, both via formal and informal justice systems and mechanisms.  We’ve already got a couple of fantastic pieces, but I also wanted to post here to spread the word to those of you who might be interested.

TOPIC: From the Informal to the Formal: Barriers and Successes in Promoting Access to Justice to the Poor

This year, we are excited to publish an online symposium focusing on issues of access to justice to the poor around the world. We invite submissions focused around the challenges of expanding access to justice to grassroots communities around the world, both through the formal justice system, customary and traditional mechanisms of dispute resolution, and through civil society and non-profit organizations.

In many countries, the formal state-governed justice system exists alongside various informal methods of justice delivery and dispute resolution, often termed “informal,” “non-state,” “traditional,” or “customary” mechanisms. Due to the barriers faced by litigants attempting to access the formal justice system, many have began to shift a focus to informal methods of dispute resolution in a range of cases – such as family law, land and property disputes, and issues of economic and social rights. There has been an increased emphasis on mediations and on engaging with informal justice mechanisms that already exist at the grassroots level, such as the shalish in Bangladesh, the bashingantahe in Burundi, or the shura jirga in Afghanistan. Although informal systems of dispute resolution are often more accessible and familiar to communities, they come with their own challenges and considerations, particularly in relation to gender and human rights norms.

We invite submissions discussing the challenges of strengthening access to justice through either informal, formal, or civil society mechanisms as well as case studies of successful approaches and new insights on the methods of navigating the complex informal and formal systems that exist around the world.

Style and Length: Our Online Symposium will be published on our website, at http://harvardhrj.com/symposia/ (see for examples of the type of content we publish). We welcome pieces that are more academic in nature as well as personal reflections from experience in the field. We seek pieces that are between 2,000 and 3,500 words. We welcome submissions from academics, practitioners, and students.

How to Submit: Email the Online Editors at hhrjonlinesubmissions@gmail.com with your piece, or with any questions or concerns.

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Fantastic post on women’s rights and human rights by Keshet Bachan. This portion sticks out to me as especially key:

There is no doubt legislation is an important first step in promoting human rights. However, most countries don’t have strong democratic traditions that uphold the rule of law, meaning legislation remains formal and fails to become substantive. And when legislation encounters social norms and traditions that contradict it, most of the time it will come out on the losing end. Without strong law enforcement forces and functioning judicial systems, with high levels of illiteracy and in many cases parallel legal systems (Customary Law), ensuring human rights laws are actually protecting people in a given country is an ongoing struggle. And no less importantly, when working in international development, the Rights Based Approach, which provides the framework in which all programming is conducted, often fails to engage communities because of this basic mismatch between formal and substantive legislation. That is, the formal recognition of human rights has yet to be translated into norms, traditions and practices, and therefore doesn’t provide a productive basis for change.

This to me, is truly a key challenge, and one that is not being addressed by the major human rights organizations and NGOs. Pushing forward legislation means little when it is not enforced and when it has not been translated into social norms at the lowest level. How can we begin to make this shift?  This is the question I keep asking, and keep pondering.

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Namati has just released an excellent and comprehensive review of 199 studies documenting the evidence related to legal empowerment. Does legal aid and awareness ‘work’? If so, how can we measure and conceive of its impact? As Namati writes:

Our main finding is that legal empowerment, in all its myriad forms and wide range of contexts, works. In total, 97 per cent of the studies reported at least one positive change. Even programs that failed to make the changes they were designed for had other, unexpected positive effects on communities, individuals and the law.

Some of the positive changes Namati noted were: increases in personal agency of participants, improvement in health and education outcomes, increases in income, changes in the way government institutions operate, and improvement in functioning of traditional authorities (such as the shalish in Bangladesh).

Definitely worth a read!

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