International Development Law Organization

The story of Rosie: The reality of access to justice

30 Aug 2017

“I come from Bangladesh, a country which also has enormous problems about the denial of justice, and about efforts and the measures that are being taken to strengthen people’s capacity to access justice. But, it was here in Africa, that I learned what it can mean, in real terms, for the people. And I will tell you now the story of Rosie.”

IDLO Director-General Irene Khan made opening remarks at the Continental Conference, “Collaboration between the Judiciary and Community Justice Institutions on Access to Justice” in Kigali, Rwanda. The conference, co-organized by IDLO, convened representatives from the judiciary, Ministries of Justice, community justice institutions and academics from eight African countries to discuss the relationship between the formal judiciary system and community justice institutions.

In making opening remarks, Ms. Khan recounted a visit in 2001 to look into a newly adopted Act on domestic violence. She visited a counselling center that helped women who wished to submit complaints to the police about domestic violence, and advise them on how to get protection orders from the magistrate.

“And, then the counsellor told me about Rosie, a poor woman who was a victim of domestic violence, beaten regularly by her husband. And one day he beat her so badly that she died. So, I asked the counsellor, why did Rosie not seek a protection order? What was wrong with the law? And the counsellor said to me, it is nothing wrong with the law, the law is perfect. The process is simple and effective. The institutions worked well. But Rosie was so poor that she could not buy the ticket for the bus to take her to the local magistrate’s court to obtain a protection order. Her husband deprived her of financial means. That is the reality of access to justice. Not just here in Africa, but in many parts of the world, including my own country. And it’s those kinds of challenges that I hope that we will think about – we will think about Rosie over the next days, as we seek to strengthen partnerships, collaborations and learn more from each other.”

The law is perfect. The process is simple and effective. The institutions worked well. But Rosie was so poor that she could not buy the ticket for the bus to take her to the local magistrate’s court to obtain a protection order... That is the reality of access to justice

A main aim of the conference was to explore ways the formal justice system could collaborate with informal systems. Throughout Africa and the world, examples show that justice is not exclusively delivered through institutions. When the State cannot meet the needs of its populations, informal structures, through community leaders and customary practices, play a key role in ensuring justice is within reach. This is especially true for vulnerable or marginalized populations who may be unable to find a pathway to justice through formal processes.

“Institutions are vital to the dispensation of justice – we know that. And, we know about the importance of the role the judiciary plays in that,” continued Ms. Khan. “But, we also know that institutions are not the only means by which people access justice, even in developed countries. Take Canada, for example, 75 per cent of the disputes are settled outside the courts by other means. For most people around the world formal justice systems are expensive, remote, complex, time consuming, and very lengthy.”

As a result, in many situations people resort to informal systems due to lower cost, closer proximity and swift results. Additionally, informal systems may enjoy higher levels of trust in the eyes of local populations. Overlooking the tangible benefits of collaborating with informal systems can perpetuate inequalities and block equal access to justice.

“At the root of poverty and inequality is a lack of access to justice. When the State does not have the capacity to protect people, when institutions are not strong enough to resolve conflicts, when poor people are locked out of markets because of discrimination or because of lack of knowledge of their rights, when opportunities are only open to the few placed in wealth and privilege, when corruption or bribery is the sole access to basic services, when women and girls have no recourse to justice, these are situations when access to justice and rule of law needs to be strengthened”, Ms. Khan continued. “Access to justice is a way of leveling the playing field between the poor and the marginalized, and the rich and the powerful.”

Access to justice is a way of leveling the playing field between the poor and the marginalized, and the rich and the powerful

IDLO’s work in Burundi and Somalia illustrates the impact of linking formal and informal systems. In Burundi, IDLO’s research shows that dialogue at the community level about land tenure registration and customary practices can protect and strengthen women’s land rights. In Somalia, IDLO supported the creation, and subsequent work, of the Traditional Dispute Resolution Unit within the Somali Federal Ministry of Justice to include policies linking to the customary Xeer system. In both cases, the connection between formal systems or processes and the communities are reinforced for better justice delivery.

“We believe in a dual strategy to achieve, or ensure access to justice. A top-down approach focused on institutions, as well as a bottom-up strategy aimed at communities, community justice institutions and justice seekers,” remarked Ms. Khan. “Creating a culture of justice requires well-functioning institutions as well as informed and empowered citizens.”

IDLO’s Africa Initiative, that arose as a result of the conference “Achieving the 2030 Agenda and Agenda 2063: The Rule of Law as a Driver of Africa’s Sustainable Development” held on June 1-2, 2016 in Dar es Salaam, also outlines the need for concerted action on improving access to justice in the continent and the need to engage with informal and customary systems of justice. IDLO’s participation in the Continental Conference continued these efforts, and looked to foster valuable partnerships, produce solutions and advance Goal 16 of the 2030 Agenda.

“And we are here today because we know that Africa’s challenges will not be resolved through business as normal processes. We are here today to build innovative partnerships, to understand, to learn about the richness of the justice sector.”

In its sessions, the Continental Conference highlighted the many opportunities and challenges in enhancing collaboration between formal judicial systems and community justice initiatives. Participants agreed that this linkage can help build a more prosperous, thriving Africa.

Ms. Khan concluded in her remarks, “The people of Africa want jobs, but they also want justice.”