legal empowerment

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21 articles in category legal empowerment / Subscribe

I just came across a really interesting new article, Domestic violence made public: a case study of the use of alternative dispute resolution among underprivileged women in Bangladesh, which reveals many of the same lessons and learnings I encountered while in Bangladesh. Some excerpts include (note; most of these are direct quotes):

  • “ADR as practiced in Sylhet, Bangladesh provides poor women a chance to be publicly heard in mediations of their domestic crises. However, ADR often fails to deliver lasting, just, and socially progressive solutions. The adoption of ADR practices should not be considered as an alternative to the development of the formal judicial system, because it lacks the power to enforce agreements and supports the hegemonic status quo, leaving the battered woman and her natal family with very limited options.”
  • The gendered income distribution among labourers was one of the contextual factors that reduced women’s options in cases of domestic violence. Because women earn less than men, it was very difficult for women to leave the home and take children or family members with them.
  • “Apart from the economic hardship, the social condemnation of a woman living without a male guardian makes such a choice undesirable for women. The women themselves consider a house without a man as vulnerable to break-in, sexual abuse, and loss of honour.” […] “Although divorce is an option according to Islamic laws, in practice it is also simultaneously considered unacceptable in Bangladeshi society for both Hindus and Muslims.”
  • The practice of early marriage and dowry, women’s limited property and inheritance rights, obstacles to women working outside the home due to norms of propriety, and social stigma related to marital separation or divorce all contribute to a structural situation in which uneducated, poor women’s options are limited when they encounter domestic violence.
  • The general criminal law has no specific laws on domestic violence against women although some specific acts address issues such as dowry violence, trafficking, and acid throwing. Dealing with ‘ordinary’ domestic violence against women requires going through criminal law or in case of divorce, through family law. One of the shortcomings is that criminal law does not protect a woman by guaranteeing a right to a ‘matrimonial home’, nor does it offer her shelter during the proceedings.
  • Although some legal avenues are available to battered women, economic and cultural constraints can impede women’s access to them. First, the economic resources needed for a legal process are way beyond most socio-economically underprivileged women. Second, women rarely have the social and cultural capital to engage in litigation. And third, the burden on the courts and routine corruption translate to a very slow process and an unpredictable outcome, even if the women should receive monetary and practical support from an organization. Moreover, women are reluctant to proceed through the criminal court because evidence is hard to gain as witnesses do not corroborate in domestic violence.
  • Some organizations do not have sufficiently trained staff to counsel victims of domestic violence and can only provide help by providing legal advice in the mediations. Some advocates have not been sensitivity-trained to reflect on gender asymmetries or to question their own values and conceptions of a woman’s position in the family. They were rarely conscious of the need to find out how the female victims themselves saw their situation and instead concentrated on finding a way to convince the woman to return to her family and on creating goodwill so that they would stop maltreating the young wife.
  • ADR’s impact depends on the structure of power relations within which it operates. Accommodating culture in the process has the effect of privileging existing social relations and thus privileging and strengthening existing forms of domination. The gendered power imbalance in Bangladesh leads to a situation in which divorced women face grave difficulties in arranging their safety and livelihood. Due to this imbalance, the advocates rarely consider divorce an option for a battered woman, leaving her to cope in a domestic situation that may be dangerous for her health and survival.
  • The author proposes the following solution: A better functioning ADR process would require that the local community be more actively engaged in the proceedings. For example, a women’s local collective could act as a pressure group towards the perpetrators of domestic violence to prevent the violation of agreements….The use of ADR should not be an alternative to creating a functioning and just legal system: negotiating without the back-up force of law will not work. The force of a just law has to be available as a last resort. Particularly in cases of domestic violence, there must be a viable option of starting a criminal process at any point of the mediation process.

Everything noted is very much spot-on, and points to my growing discomfort with the way domestic violence is dealt with often through mediations or dispute resolution. Without the real threat of the law, and the criminal justice system, things will not change nor will abuse decrease. I also concur with the suggestion of improving the involvement of the community and urging other local leaders to place pressure on the perpetrators — although this too very much depends on social norms and the willingness of community members to condemn violence.

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I wanted to share a fantastic TEDx talk I just encountered focused on why you should care about access to justice. I think he articulates, pretty well, why I think access to justice is simply so important and why governments should prioritize and fund legal services for the poor. I also loved his idea of a universal legal services/access to justice fund; though I don’t think we’re there politically, it sounds like a fantastic suggestion.

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A great new World Bank Justice & Development Working Paper has been published by Jennifer Franco, Hector Soliman, and Maria Roda Cisnero, focusing on community based paralegalism in the Philippines. The abstract is as follows:

Community-based paralegalism has been active in the Philippines for the past 30 years, and yet its contribution to access to justice and the advancement of the rights and entitlements of the poor has been largely undocumented. This paper attempts to provide a framework study on the history, nature, and scope of paralegal work in the Philippines, based on the experience of 12 organizations that are active in the training and development of community-oriented paralegals. The study first provides a working definition of a community-based paralegal, and then examines the work of paralegals, their systems of accountability or lack thereof, and issues regarding recognition by the state and civil society actors. It also explores facilitating and hindering factors that aid or impinge upon the paralegals’ effectiveness. A major contributor to the work of paralegals was the democratization process after the overthrow of the dictatorship of Ferdinand Marcos and the continuing evolution of legal rights spurred by the relatively progressive constitution ratified in 1987. Three dimensions of paralegal’s work are identified and explored, namely, building rights awareness, settling private disputes, and increasing state and corporate accountability. The study ends with conclusions and recommendations with regard to sustainability, monitoring and evaluation, funding, and the prospects for paralegal work over the long term.

There is some excellent analysis here of the long-term paralegal movement in the Philippines, as well as recognition of paralegals by the state and some thorny issues that arise when working in the context of violence against women — my specific interest.

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I am truly excited to announce my very first published paper! I’ve been working on this paper since 2012, when I spent two months in Bangladesh researching BRAC’s expansive and community-based legal aid and legal empowerment program, and particularly its impact on women’s rights.

I’m very happy to say that my piece has been published by the World Bank Justice and Development Working Paper Series. I could not be more thankful to BRAC for allowing me to conduct this research and to study their access to justice and dispute resolution model, and also to the World Bank for choosing to focus on important issues of legal empowerment of the poor — an issue all too often neglected among other development and human rights priorities. Here’s the abstract:

This piece examines the current status of justice and dispute-resolution mechanisms in Bangladesh, ranging from the formal justice system to the traditional shalish (a form of dispute resolution), and focuses on the costs and benefits of utilizing nongovernmental organization (NGO)-led legal services programs as an alternative form of justice delivery and dispute resolution for the poor, with a focus on women and girls. In particular, this paper takes a closer look at the Human Rights and Legal Aid Services (HRLS) program of BRAC, a leading NGO that works to empower the poorest and most vulnerable in Bangladesh and eleven other countries across the world. HRLS provides a combination of BRAC-led shalish, human rights community based education, community mobilization through a corps of community-based outreach workers (known as shebikas), and recourse to the courts via a network of panel lawyers if needed. This paper will examine the successes of this model in rural Bangladesh as well as the challenges it faces in making an impact on solving the justice problems of the poor and contributing to gender equity. Ultimately, it aims to present a case study that illustrates the strengths and challenges of a legal empowerment model that is quickly gaining traction around the world.

 You can read the complete piece here.

Also, please take a look at some of the other working papers in this series – they are all truly incredible and shed light on a range of fascinating and important issues within access to justice, rule of law, and legal empowerment.

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This past January, I had the fortune of researching Muslim women’s legal rights under family law and inheritance law, as well as civil laws relating to domestic violence, child marriage, and dowry in India.

It was a fantastic learning experience, and what I learned about India truly impressed me. India has some incredible laws on paper to protect women’s rights, including strong rights and entitlements relating to domestic violence and dowry. Yet, the challenge that I always observe comes down, once again, to the implementation gap.

When it comes to implementation, I often turn to legal aid — can people access the courts? If not, implementation of many laws, but particularly those relating to family law, domestic violence, and inheritance rights, is moot. Without going to court, one cannot easily and enforceably avail oneself of the right to inherit a certain share of property, or to obtain maintenance payments, or child support, or a divorce. Key barriers to accessing justice include: cost of filing fees, distance to a courthouse, corruption and slow nature of the courts, social stigma of filing such a case over a ‘family matter,’ and costs of obtaining a lawyer.

One way that some of these barriers can be reduced is through provision of lawyers, legal aid, and paralegals. And here is where India’s laws truly excel.

Under Section 12 of the Legal Services Authorities Act, 1987, a number of individuals have access to free legal services, including:

  • Members of scheduled castes or tribes
  • Women and children
  • Certain persons with disabilities
  • Victims of human trafficking, mass disasters, ethnic or caste violence,  and natural and industrial disasters
  • Individuals in custody at a protective home, juvenile home, or psychiatric hospital
  • Individuals with an annual income of under 50,000 rupees

Even more impressive, the state of Haryana actually has a scheme for Paralegal volunteers. Under the National Legal Services Authority (Legal Aid Clinic) Regulations, 2011, Legal Aid Clinics are required to be set up in all villages or clusters of villages, with at least two paralegal volunteers in each office. The paralegals are tasked with providing initial advice to legal aid seekers, helping people in drafting petitions and forms for government benefits, contacting lawyers, accompanying people seeking legal aid to government offices, and providing legal awareness. 

India’s legal aid laws are certainly impressive – I have come across few other countries which actually make civil legal services a right for such large segments of the population, including women, girls, low income individuals and those with disabilities. Further, few countries seem to officially recognize and give power to paralegals, who I believe can strengthen legal awareness in communities and expand communities understanding of their rights and access to legal aid as needed. Paralegals can be much more accessible within a rural community and can be equipped to use more flexible strategies than lawyers, including awareness raising, education, and community organizing – among other tools.

Still, there are questions with these regulations. Paralegals are still volunteer with a minimal stipend — it’s worth questioning why these aren’t salaried posts. Although there’s a certain fear that comes with providing a government job, it also seems that people placed in a community for a longer time can make a broader impact. Overall, though, this legislation and regulations seem to be a truly positive step for India, though there is — once again — much more to do on the implementation front, as many of these offices seem to be non-operational at the moment.

Regardless, I’m excited to hear more about 1) how other countries can adopt similar models and legislation, and 2) how India can better implement these legal aid and paralegal provisions to strengthen access to justice.

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Sierra Leone is quite firmly post-conflict, with the war soon receding into the space of distant memory. And yet, the wounds of the war still appear raw at times, at least directly beneath the surface, where anger and frustration seem simmering in a pot threatening to boil over once again.

The ghosts of wartime past still linger in conversations. One man tells me about fleeing the war and being forced to be a refugee in neighboring Guinea, Ivory Coast, and Liberia. Another young woman tells me that her father was killed in the war, leaving her family – a mother and nine children – even poorer and more alone. You can see the shadow of the war when passing bombed out buildings– relics of the past, slowly becoming overgrown with nature once again, and yet left to stand.

But perhaps more subtly, the specter of the war remains in daily human interactions. Working for a conflict resolution office, I spend the day resolving disputes. Perhaps most clearly, Sierra Leoneans are anything but passive. They are angry, argumentative, easily prone to shouting and bursts of indignation. They have quick tempers that flare up at the slightest touch.

Sierra Leoneans do not speak quietly. They project loudly, speaking with their hands, which move and gesticulate animatedly with every sentence. They yell, point, and pace, and even a trivial argument can sound deathly serious. Two women argue about which one of their children is taller – but you would think, from their tone of voice – that it is a life-and-death matter.

In our office all day, arguments erupt between husbands and wives, family members, and friends. Outside of work, children are ‘flogged’ violently for the smallest transgression, and upon my attempt to intervene, I am told it is for their own good – and that “These are African children, not American ones; they don’t listen! Besides, in school, they are flogged five times. I only flogged this one four times!” Often, I see husbands and wives hitting each other outside (in full view of the police station, of course – no action is likely to be taken by the officers, who continue to lounge on their front porch, eating boiled peanuts to their hearts’ content).

In America, our violence might be sinister – hidden behind closed doors, with only neighbors hearing shouts and shattered glass through thin walls. In Sierra Leone, the violence is often public, and unabashedly so. There is no shame in hitting your children – it’s ‘normal.’ A crowd of neighbors and interested parties gathers when spouses/partners have an argument, physical or verbal, and word spreads; soon the entire village is privy to differing versions of their fight, and blow-by-blow re-enactments. Gossip is rife; nothing is truly private or safe from prying eyes.

While domestic violence is prevalent, and women bear the brunt of the beatings, living in Sierra Leone has further shattered any lingering preconceptions I might have of women as passive victims, silently and tearfully bearing weighty burdens. Instead, they are just as loud as their husbands and brothers (sometimes more so). Fiercely spirited, women and girls are not afraid to march into our office and complain about domestic violence, spousal neglect, or debts they are owed. They assert their opinions and anger with utter confidence – with far more self-assurance than I personally have. While their husbands might have multiple wives and girlfriends – they too, often have affairs and extramarital relationships (often those too, however, are tainted by abuse, inequality, and lack of true choice). And when I witness their husbands hitting them in public, women just as often strike back, risking further abuse. This is not to say that gender inequity doesn’t exist; it is frighteningly pervasive, even enshrined in the legal right of men to have multiple and even unlimited wives under customary law and the right of men to divorce when their wives do not provide them with sexual pleasure. But it is only to further negate stereotypical portrayals of women, particularly those subject to sexual and domestic abuse.

And so, in Sierra Leone, my life seems to be shrouded by conflict, and by the end of the day I find myself exhausted and often overwhelmed by the tasks of resolving one dispute after the other. Work and ‘play’ seems to blur together. Living in the community, any conflict I witness merges into my ‘work,’ – a potential space for peaceful mediation and the intervention of the law.

And so it is that years after the end of the war, this work – of conflict resolution and access to justice – has never been more vital to the lives of the poor.

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The concept of legal empowerment seems to be gaining more traction, and I couldn’t be more excited. IDLO has released an excellent new report called “Accessing Justice: Models, Strategies and Best Practices on Women’s Empowerment.” The study is an excellent overview of legal empowerment and its complexities: legal education, legal services, dispute resolution, and its interactions with informal justice system as well as its ultimate impact on women’s empowerment. Here are some of the very interesting findings of the report:

On Violence Against Women in Afghanistan:

Comprehensive statistics on VAW in Afghanistan are not available. “Nonetheless, available data at this stage suggests that the interventions mentioned above have made considerable advances in improving women and justice providers’ knowledge of the EVAW Law and providing women with a user-friendly service to seek justice for violent acts. During its first year of operation, the VAW Unit in Kabul received 300 cases originating from 15 different provinces in Afghanistan. Throughout the year 2010, the number of cases submitted to the Kabul VAW Unit doubled from the first month to the last month. At the end of March 2012, the total number of registered cases in the Kabul VAW Unit was 869.”

On Unwed Women in Morocco:

“Similarly NGOs describe the impact that participating in the legal and human rights education has had on other program participants as a result of unwed mothers’ presence in the groups, as well as the specific program sessions on unwed mothers’ rights. They mention how attitudes of rejection towards unwed mothers were replaced with sympathy and support. On a larger scale, as a result of the program there was a shift from the consensus of silence around the issue of unwed mothers to a shared vision of participants that unwed motherhood is a social reality that must be addressed. One participating NGO noted that the other women started behaving normally towards the unwed mothers and stopped marginalizing them.”

On women’s land rights in Tanzania and Mozambique:

“…[A]lthough paralegal services attempted mediation as the first method for resolving conflicts brought to them by widows and divorced women, they were generally unsuccessful. Resistance to paralegal mediation by husbands or the husbands’ families is likely to be a reflection of the prevalence of contemporary practices of customary norms, as reinforced by local community leaders. Accordingly, at this preliminary stage a sustained focus on strengthening NGO expertise in dissemination, education, legal drafting and practice is likely to be more impactful than diverting resources into mediation. Moreover, cases of dispossessed widows and divorcees tend to legally favor the woman; using mediation, which is often reserved for legally complicated situations or situations in which all parties are legally at fault, is unlikely to be as effective in promoting women’s land rights as unequivocal public court judgments explicitly referring to and reliant on statutory law.”

Read the report in its entirety below. It’s full of incredibly useful and interesting data on legal empowerment and its impact on women!

Accessing Justice: Models, Strategies and Best Practices on Women’s Empowerment

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Namati – a great new network on legal empowerment – has launched a wonderful new multimedia series called African Voices of Legal Empowerment.  The series includes a number of fascinating personal interviews with legal empowerment practitioners from all over the African continent discussing what they do. These lawyers and paralegals describe their work, tell stories of cases they’ve worked on, and describe how the work has changed them.

The interviews are inspiring, and tell a rare story of legal aid and empowerment – and how it can improve lives in concrete ways. This is a story that needs to be told, and I could not be more thrilled that Namati is finally bringing it to the world.

Daniel Sesay, a previous Paralegal with Timap for Justice, shares his story: 

Daniel Sesay is currently a Program Officer with Namati, Sierra Leone. Daniel joined Timap for Justice as a paralegal following his work with the Truth and Reconciliation Commission following the end of the country’s decade-long civil war. Now, with ongoing scale-up of paralegal operations in Sierra Leone and a recent Legal Aid Bill that formally recognizes paralegal practitioners, Daniel is playing a leading role in training paralegals and providing mentorship and technical advice to a range of legal empowerment organizations in the country

Namuchana Mushabati speaks about access to justice in Zambia:

Namuchana Mushabati is a trained lawyer working as a Programs Officer for the Legal, Sexual and Reproductive Rights Project with Women and Law in Southern Africa (WLSA). Through the Access to Justice program, the Zambia chapter of WLSA provides legal aid services to women and children in the capital city of Lusaka, as well as various rural districts throughout the country.

Check out the remaining video stories on legal empowerment in Africa here! It’s pretty great to directly hear the voices of men and women working on the ground to support and expand access to justice, and kudos to Namati for taking the initiative!

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