GOVERNANCE GOVERNANCE EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT Increasing Access to Justice in Fragile Settings © 2023 International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org This work is a product of the staff of The World Bank with external contributions. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy, completeness, or currency of the data included in this work and does not assume responsibility for any errors, omissions, or discrepancies in the information, or liability with respect to the use of or failure to use the information, methods, processes, or conclusions set forth. 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Any queries on rights and licenses, including subsidiary rights, should be addressed to World Bank Publications, The World Bank Group, 1818 H Street NW, Washington, DC 20433, USA; fax: 202- 522-2625; e-mail: pubrights@worldbank.org. >>> Contents Acknowledgments 4 Abbreviations 5 Executive Summary 7 Introduction 9 1. Defining Access to Justice and Fragility 11 2. Barriers to Access to Justice in FCS 15 2.1. Barriers Related to the Legal Framework 16 2.2. Barriers Related to Efficiency 20 2.3. Barriers Related to Fairness 23 3. Increasing Access to Justice in FCS 28 3.1. Establish Transitional Justice Processes 29 3.2. Review and Update the Legal Framework 30 3.3. Engage with Non-State Actors 30 3.4. Broaden the reach of justice 31 3.5. Conduct Awareness Campaigns and 32 Sensitization to Gender Issues 3.6. Reduce Cost 34 3.7. Remove Physical and Geographical Barriers 35 3.8. Introduce ICT 36 4. Policy Implications 37 References 39 Additional Readings 46 >>> Acknowledgments This report was written by a team led by Erica Bosio, Senior Public Sector Specialist in the Governance Global Practice and Task Team Leader. Ana Palacio Jaramillo, Kartik Saboo, and Virginia Upegui provided research assistance. Reviewers of the study included Camilo Andres Avila Ceballos, Cari Votava, David Bernstein, Helene Marie Grandvoinnet, Manuel Ramos Maqueda, Nicholas Menzies, Sara Agostini, and Vikram Raghavan. Arturo Herrera Gutierrez (Global Director, Governance Global Practice) and Roberto Senderowitsch (Practice Manager) provided overall guidance on the study. Cyrel San Gabriel provided editorial services, while Sandrine Ribeiro Pinto and Liudmila Uvarova provided design and dissemination support. Reinhard R. Haslinger (Senior Operations Officer, EGVPA) and Katherine Elizabeth Wolff Siess (Program Assistant, EGVPA) provided additional support. This report was made possible by the State and Peacebuilding 2.0 Trust Fund (SPF) of the World Bank Group. SPF is a global multi-donor fund administered by the World Bank that works with partners to address the drivers and impacts of fragility, conflict, and violence and strengthen the resilience of countries and affected populations, communities, and institutions. The SPF is supported by Denmark, Germany, Netherlands, Norway, Sweden, and Switzerland as well as the International Bank for Reconstruction and Development. >>> Abbreviations ADR Alternative Dispute Resolution Bertelsmann Stiftung’s Transformation BTI Index CPI Corruption Perceptions Index CSO Civil Society Organization DPL Due Process of Law Foundation ECA Europe and Central Asia FCS Fragile and Conflict-Affected Situations FSI Fragile States Index HIC High-Income Countries ICT Information and Communications Technology JEP Jurisprudence of Equality Program JCLA Justice Center for Legal Aid LIC Low-Income Countries MIC Middle-Income Countries NGO Nongovernmental Grganization NYU New York University Organization for Economic Co-operation and OECD Development The Office of the High Commissioner for OHCHR Human Rights >>> Abbreviations PAVI Program Against Violence and Impunity PRI Penal Reform International SPF State and Peacebuilding Fund UN United Nations UMIC Upper Middle-Income Countries WBG World Bank Group WGI Worldwide Governance Indicators WJP RLI World Justice Project Rule of Law Index >>> Executive Summary By 2030, more than half of the world’s extreme poor will live in countries characterized by fragil- ity, conflict, and violence. In fragile and conflict-affected situations (FCS), justice systems face numerous challenges that hinder their effectiveness and prevent reconstruction and adequate service delivery, including lack of independence, heightened corruption, improper government influence, and systemic institutional and administrative problems. Strengthening the delivery of justice and improving people’s capacity to access justice ensures the rule of law is equally en- forced, thereby promoting social and economic development. Access to justice is a basic principle of the rule of law, yet one that is difficult to define. This report adopts a comprehensive definition that acknowledges the fact that justice can be deliv- ered by a variety of actors. These actors include non-judicial institutions such as customary law, community arbitration, and other alternative dispute resolution mechanisms that do not involve the judiciary. This broader definition of access to justice encompasses three dimensions: legal framework, efficiency, and fairness. A society with a high level of access to justice enables the majority of its citizens to know their rights, providing them with information on which steps to un- dertake, and which competent people to meet to resolve a dispute or defend themselves against it (legal framework); face a procedural cost that is not prohibitive in terms of both monetary and time cost, with implications on the capacity of the actors (efficiency); and not face discrimination or unfairness of any kind during the process (fairness). Poor access to justice is a defining characteristic of many conflict-affected and fragile environ- ments, as individuals face various obstacles when seeking remedy for their grievances. This report identifies the most common barriers to access to justice for each of the dimensions of access to justice through the analysis of publicly available data and country examples. Some barriers to access to justice are specific to FCS, while others are common in many countries but are exacerbated by the context of fragility. Vacuums in the legal framework, a lack of updated laws, and missing information on the func- tioning of the system translate into the denial of important rights. Even when a substantive right is recognized in the legal framework, its enforcement may be hindered by the lack of direct ac- cess to a complete, official, and searchable repository of national laws and regulations. Vacuums on the rules of engagement between state and non-state dispute resolution mechanisms can translate into a missed opportunity on leveraging the variety of justice providers that broaden access to justice in FCS. While non-state systems provide justice in many countries, they are the provider of choice for 80–90 percent of the population in FCS. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 7 Few people in FCS can access information, advice, or rep- clude countries affected by active violent conflict, as well resentation to help them better understand or resolve their as countries with no conflict but with high levels of insti- problems. This limitation can be due to financial constraints tutional fragility. The more fragile the country, the weaker or a general inaccessibility of the systems. In these instances, the quality of political leadership with which transformation people prefer to turn to family members or community elders processes are steered and the harder the reform process. to seek assistance for their legal problems. A lack of govern- ment capacity further constrains the efficiency of service deliv- 2. Interventions would start with a stocktaking exer- ery, limiting access. In countries affected by violent conflict the cise of existing justice actors. The mapping of current lack of capacity can manifest in a total lack of physical court service delivery realities is critical in order to respond ef- infrastructure, while in post-conflict cases it can stem from a fectively to the legal needs of a beneficiary group within lack of qualified personnel in the courts, lack of financial re- the context that is most relevant to them. In environments sources, lack of basic equipment, or lack of government will- where the rule of law culture is weak or emerging, devel- ingness. Access to justice is frequently more limited for spe- oping ideas about justice at the grassroots level can pro- cific groups of people such as women, minorities, low-income mote access to justice and assist in the rehabilitation of people, and people who live in rural areas. The perception of the formal justice system. It can also form an integral part fairness is impacted by the perception of corruption, which is of a broader strategy supporting group security, peace highly correlated with the level of fragility. building, and community development. A review of reforms implemented at the country level, including 3. Institutions should be developed harmoniously with through several World Bank Group financed projects, sheds existing dispute resolution mechanisms, including light on options to improve access to justice in FCS. These op- customary systems. While the state has an irreducible tions include (1) establishing transitional justice processes; (2) role in the delivery and accountability of justice and secu- reviewing and updating the legal framework; (3) engaging with rity, it can leverage existing mechanisms in the execution non-state actors; (4) broadening the reach of justice through of that role since they fill an important gap for many peo- paralegals, alternative dispute resolution (ADR) mechanisms, ple in FCS. In these contexts, the state is usually a minor- and small-claims courts/procedures; (5) conducting aware- ity provider of justice—and often an ineffective one—but ness campaigns and sensitizing on gender issues; (6) reduc- it plays an important role as regulator to establish param- ing cost; (7) removing physical and geographical barriers; and eters for justice service delivery and to ensure account- (8) introducing ICT tools. Multiple country examples are used ability of providers. to illustrate these solutions. While some of these solutions are specific to FCS, others can work in non-FCS settings as well, 4. Access to justice can be prioritized over other deter- though their prioritization may differ. A reform program often minants of judicial effectiveness, but focus on effi- involves multiple interventions which, in turn, can have effects ciency and outcomes should follow soon afterward. across several barriers. In the immediate post-conflict stage, priority is best given to transitional justice processes. After that, the focus can This analysis has several implications for reform design aimed shift to inclusion and expanding services to women, mi- at increasing access to justice in FCS: norities, and rural communities. Once conflict-related is- sues are resolved, access is increased, and efficiency is 1. Interventions should be designed with the level of fra- preserved, governments can focus on ensuring that deci- gility in mind, which also impacts prioritization and sions rendered by the courts conform with legal require- sequencing. FCS countries are heterogenous and in- ments and users’ expectations. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 8 >>> Introduction By 2030, more than half of the world’s extreme poor will live in countries characterized by fragility, conflict, and violence. In these countries, justice systems face numerous challenges that hinder their effectiveness and prevent adequate service delivery. For this reason, justice and the rule of law are listed as one of the six high-priority issues in FCS on which the World Bank Group (WBG) has committed to placing special emphasis in its Strategy for Fragility, Conflict and Violence, 2020–2025. The strategy recognizes that building resilient institutions capable of addressing grievances and delivering services is critical to transforming the dynamics in FCS, and that both formal and informal justice systems play an important role in resolving grievances that might otherwise lead to conflict, crime, and violence. The failure of legal systems to protect individual rights, prosecute violators, and balance executive power is often either a direct cause of conflict, or a contributing factor to it. Successful transitions out of endemic fragility and cyclical violence require legitimate, inclusive, and effective institutions to provide justice—understood as accountability, grievance redress, and equity—along with citizen security and jobs. Justice institutions play a key role in crime deterrence by affording the population a more attractive alternative to violence in resolving per- sonal and political disputes. Beyond securing peace and preventing conflict, justice matters for development. Justice enhances sustainable and equitable growth, improves access to public services (particularly for low-income people), fosters a healthy business environment, curbs corruption, enhances public trust in the government, and restrains abuse of power (World Bank Group 2022a). A deep litera- ture review shows how justice affects financial development (La Porta and others 1997, 1998, 1999; Djankov and others 2003), labor markets (Botero and others 2004), competition (Djankov and others 2002, 2003), and economic growth (Beck and others 2000; Levine, Loayza, and Beck 2000; Mahoney 2001). More recent research emphasizes the role of quality and efficiency of judicial processes in fostering entrepreneurship, credit, and agricultural and industrial activities at the country level (Chemin 2009a, 2009b; Jappelli, Pagano, and Bianco 2005; Visaria 2009; Amirapu 2017). EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 9 This report explores the paths to increase access to jus- signed to be a repository of data and country examples tice in FCS. It provides an analytical overview of the most on common barriers and solutions for increasing access common barriers to access to justice and presents the value to justice in FCS. It can serve as a starting point for reform and prerequisites of eight options available to governments design and research toward good practices implemented to increase access to justice in these contexts. Fragile envi- across the world. The report relies on publicly available data ronments are considered among the most difficult for public and does not do any data collection. As such, it carries the lim- sector reforms, including judicial reform, partly because the itations of the underlying datasets, including a general lack of root cause for fragility or conflict is often multifaceted. FCS data on outcomes and the unavailability of gender-disaggre- are characterized by rapidly changing circumstances, differ- gated data. Section 1 discusses the determinants of access ing levels of security, fragile and volatile political situations, to justice and defines the concept of fragility used throughout low institutional capacity, and a weak enabling and investment the report. Section 2 uses publicly available data to extract climate for the private sector. The report takes these aspects common barriers to access to justice in FCS and organizes into consideration and proposes context-specific policy impli- them around the three dimensions of access to justice. Sec- cations. tion 3 outlines ways that these barriers can be addressed with corresponding in-country applications. Section 4 concludes by The report is intended for justice professionals and the summarizing the policy implications of this analysis for gov- general audience of development experts alike, and is de- ernments. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 10 1. >>> Defining Access to Justice and Fragility • • • There are three dimensions to access to justice: legal framework, efficiency, and fair- ness. Poor access to justice is a defining characteristic of fragile contexts. Increased access to justice can have economic benefits (including an increase in gross domestic product, GDP). Access to justice is a key element of judicial effectiveness, alongside efficiency and qual- ity (Posner 1998; Messick 1999). Independence is often posited as a fourth factor, though evidence from past judicial reform in this area is mixed (Bosio 2023; Voigt and others 2013). Empirical findings establish that comprehensive reforms—i.e., those targeting all characteristics of judicial effectiveness—affect firm productivity and economic growth. For example, increas- ing access to justice by 1 percent causes an increase in the five-year growth rate of GDP per capita by 0.86 percentage point (Deseau, Levai, and Schmiegelow 2019).1 In contrast, partial reforms—i.e., those that do not target all characteristics at once—have minimal effect (Chemin 2020). Such comprehensive reforms are more likely to succeed in countries experiencing ex- traordinary politics, such as those emerging from conflict and violence (Bosio 2023). Though access to justice is a basic principle of judicial effectiveness, it is one with an elusive and long-debated definition. In a general manner, it is employed to signify the pos- sibility for any individual to bring a claim before a court and have the court adjudicate it. In a more qualified meaning, access to justice is used to signify the right of any individual not only to enter a court of law, but to have their case heard and adjudicated in accordance with substantive standards of fairness and justice (Francioni 2007). At its heart, “access to justice” aims to create a fair and just environment for individuals to seek a remedy for the breach of their rights. 1. Deseau and others (2019) use the number of judges per capita as a proxy for access to justice and argue that the proxy measures the extent to which disputes between economic actors can be resolved at a relatively low cost, without dysfunc- tional delay and discrimination. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 11 This report adopts a more comprehensive definition of can be leveraged to broaden access to justice. access to justice that reflects how justice can be deliv- ered by a variety of actors (judicial and non-judicial, state The third dimension—fairness—includes ensuring that and non-state), which is especially relevant in FCS. Ac- systems for addressing social harm, as well as legal and cess to justice is not merely the effective use of state judicial social problems, are fair and nondiscriminatory (Cur- institutions. It is also sought and delivered through non-judi- ran, Vernon, and Barnett 2017). It includes guarantees for cial institutions such as customary law, community arbitration, neutral adjudication, with parties of weak standing possess- and other ADR mechanisms that do not involve the judiciary ing sufficient procedural powers to conduct litigation against (Glasser and Roberts 1993; LeRoy 2004; Ubink 2011). Effec- strong parties (Gulati 2022). It is closely related to integrity tive access also includes the availability of, and access to, and independence, as procedural justice also includes the counsel and representation (Beqiraj and McNamara 2014). justice-seekers’ confidence that their voices are heard by a neutral third party who seeks to understand the needs and This broader definition of access to justice encompasses concerns of all parties, and the fact that information is per- three dimensions: legal framework, efficiency, and fair- ceived as transparent and sufficient (Chaara, Falisse, and ness. A society with a high level of access to justice should Moriceau 2022; Tsuchiya and others 2005). In times of conflict enable the majority of its citizens to know their rights and pro- and crisis, qualitative and fair judicial outcomes are more dif- vide them with information on which steps to undertake, and ficult to obtain, as it is challenging to maintain the integrity and which competent people to meet in order to introduce a com- depth of legal protections when faced with conflict, emergen- plaint or defend themselves against it (legal framework). They cies, or serious political or economic adversity (Aoláin 2007). should also be facing a procedural cost that is not prohibitive Extending constitutional protections against discrimination to both in terms of monetary and time cost, with implications on non-state actors may help. the capacity of the actors (efficiency), and they should not face discrimination or unfairness of any kind during the process Poor access to justice is a defining characteristic of frag- (fairness). ile contexts. Common obstacles include lack of legal and governmental information, discrimination, high levels of cor- The first dimension—legal framework—refers to a well- ruption, unregulated legal pluralism, lack of trust, prohibitive defined and accessible regulatory system that guarantees costs, language barriers, physical isolation, cultural impedi- citizens the possibility to seek remedies for their griev- ments, or damaged infrastructure (Harper 2011; Beqiraj and ances. This includes the recognition of both substantive rights McNamara 2014; Sepulveda and Donald 2014). At the peak of and adequate courses of action (not limited to the courts) conflict, public resources are sometimes repurposed, leaving when these substantive rights are compromised. Ensuring the the judiciary in financial distress. Where individuals succeed availability and access for citizens to complete, transparent, in accessing justice, they frequently find that lawyers, courts, and comprehensive legal information is crucial to empowering and police services lack the capacity and incentives to resolve them to exercise their legal rights (Cappelletti 1981). Conflicts their case fairly and equitably. and crises put the rights and protections of ordinary law under stress. This is largely because the legal regulation of crisis For this report, FCS countries are those included in the invariably constrains the full protections of the law. The de- WBG’s annual list of countries deeply affected by fragility mands and compromises of situations of emergency, armed or conflict. The list distinguishes between countries with high conflict, and terrorism challenge the reach of substantive legal levels of institutional and social fragility—as identified based protections. on public indicators that measure the quality of policy and in- stitutions as well as specific manifestations of fragility—and The second dimension—efficiency—refers to the time countries affected by violent conflict, as identified based on a and cost needed to resolve a dispute. It concerns the abil- threshold number of conflict-related deaths per capita. As a re- ity to obtain recourse in a reasonable time, as well as the sult, the list is quite heterogeneous. The list is updated yearly. existence of mechanisms that guarantee that outcomes are accessible to all, irrespective of wealth and status. Elements During the last 15 years, 59 countries have been catego- such as legal aid, contingency fee agreements, court fees, the rized as FCS at least once by the WBG (Table 1). In 2023, existence of small claim courts, and the ability to recover legal 37 countries were considered FCS. The analysis presented in costs all play key roles in making the legal process available to Section 2 utilizes all countries in the 2023 FCS list for which everyone, including vulnerable populations (Gulati 2022). The data were available in the relevant datasets, as well as histori- harmonious coexistence of formal and nonformal institutions cal data from countries that have been consistently included in also ensures that resources perceived as faster and cheaper the list over the last 15 years. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 12 > > > T A B L E 1 - Countries in the FCS List Over the Past 15 Years (2009–2023) Country 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Afghanistan ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Angola ✔ ✔ ✔ ✔ ✔ Armenia ✔ Azerbaijan ✔ Bosnia and Herzegovina ✔ ✔ ✔ ✔ ✔ ✔ Burkina Faso ✔ ✔ ✔ ✔ Burundi ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Cambodia ✔ Cameroon ✔ ✔ ✔ ✔ ✔ ✔ Central African Republic ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Chad ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Comoros ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Congo, Dem. Rep. ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Congo, Rep. ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Côte d’Ivoire ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Djibouti ✔ ✔ ✔ ✔ Eritrea ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Ethiopia ✔ ✔ Gambia, The ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Georgia ✔ ✔ ✔ Guinea ✔ ✔ ✔ ✔ ✔ Guinea-Bissau ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Haiti ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Iraq ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Kiribati ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Kosovo ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Lao PDR ✔ ✔ Lebanon ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Liberia ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Libya ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Madagascar ✔ ✔ ✔ Mali ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Marshall Islands ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Micronesia ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Mozambique ✔ ✔ ✔ ✔ ✔ Myanmar ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Nepal ✔ ✔ ✔ ✔ ✔ Niger ✔ ✔ ✔ ✔ Nigeria ✔ ✔ ✔ ✔ EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 13 Country 09 10 11 12 13 14 15 16 17 18 19 20 21 22 23 Papua New Guinea ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ São Tomé and Príncipe ✔ ✔ Sierra Leone ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Solomon Islands ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Somalia ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ South Sudan ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Sudan ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Syrian Arab Republic ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Tajikistan ✔ ✔ ✔ Timor-Leste ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Togo ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Tonga ✔ ✔ Tuvalu ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Ukraine ✔ Uzbekistan ✔ Venezuela ✔ ✔ ✔ ✔ West Bank and Gaza ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Yemen, Republic of ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Zimbabwe ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ ✔ Source: World Bank Classification of Fragile and Conflict-Affected Situations. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 14 2. >>> Barriers to Access to Justice in FCS • • • Some barriers to access to justice are specific to FCS, while others are common to many countries but are exacerbated by the context of fragility. The level of fragility is highly correlated with the perception of corruption. The more fragile the country, the weaker the quality of political leadership with which transformation processes are steered and the harder the reform process. Countries on the FCS list perform poorly on international indices benchmarking justice and the rule of law. Using data from publicly available datasets, this section identifies barriers to access to justice in FCS and maps them to the three dimensions of access to justice outlined in Section 1—legal framework, efficiency, and fairness. Though an effort is made to organize barriers around these three dimensions, in practice these issues are frequently interconnected (a factor hindering efficiency, for example, could also hinder fairness). Countries with high levels of fragility display lower quality of institutions and political leadership. Countries with higher levels of fragility as measured by the Fragile States Index (FSI) perform poorly on the Rule of Law dimension of the World Governance Indicators (WGI ROL), as well as on the Bertelsmann Stiftung’s Transformation Index (BTI) Governance Index. WGI ROL captures perceptions on the quality of contract enforcement, property rights, the police, and the courts, as well as the likelihood of crime and violence. The percentile rank indicates the country’s rank among all countries, with 0 the lowest rank and 100 the highest (Figure 1). BTI assesses the quality of political leadership with which transformation processes are steered and ranks countries from high (1) to low (137) governance levels. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 15 > > > F I G U R E 1 - Countries with Higher Fragility also have Lower Quality Institutions Figure 1 Norway 100 United States 90 Brunei Darussalam Samoa Slovenia Malta 80 Hungary 70 Costa Rica Micronesia Namibia Italy Jordan 60 Sri Lanka WGI (2021) 50 Egypt Solomon Islands 40 Argentina Moldova Burkina Faso 30 Gabon Belize Ethiopia Iran Ukraine 20 Nigeria 10 Turkmenistan North Korea Sudan Afghanistan 0 Venezuela 0 20 40 60 80 100 120 140 160 180 FSI (2023) Source: WGI (2021); FSI (2023). Note: The Fragile States Index (FSI) ranks countries from high levels (1) to low levels of fragility (179). For the purposes of this graph, the FSI ranks are inverted, and a higher number indicates higher levels of fragility. Countries in orange are FCS countries according to WBG’s classification for 2023. The score of FCS countries on the World Justice Project lowest score on access and affordability of civil justice (0.3/1). Rule of Law Index (WJP RLI) is below global average The Democratic Republic of Congo receives the lowest score across all categories (Figure 3). The WJP RLI measures (0.16/1) on whether basic laws and information on legal rights the overall level of rule of law in each country through eight are publicly available, while Ukraine receives the highest factors: constraints on government power, absence of (0.61/1). Discrimination in civil justice is prominent, especially corruption, open government, fundamental rights, order and in Afghanistan and Myanmar (0.12/1 and 0.19/1, respectively). security, regulatory enforcement, civil justice, and criminal Among these countries, the judiciary of Venezuela has the justice. Scores range from 0 to 1, with 1 indicating a better least independence and ability to exercise effective checks performance. WJP RLI has data for 18 of the 37 countries and oversight on the government (a score of 0.12/1). currently in the FCS list. Among these, Sudan receives the 2.1 Barriers Related to the Legal Framework Vacuums in the legal framework, a lack of updated laws, Accessibility of civil justice is generally low in FCS. The 18 and missing information on the functioning of the system countries that have WJP RLI data out of the total 37 currently translate into the denial of important rights. The presence on the FCS list show some variation in the level of access of discriminatory laws giving preference to certain persons and affordability of civil justice (Figure 2). The countries or groups in society (especially prominent in FCS in family, with the lowest scores are Sudan (0.3/1), Burkina Faso marital property, and inheritance laws) and discriminatory (0.35/1), and Myanmar (0.35/1), all significantly below the social norms putting pressure on vulnerable groups (e.g., on global average of 0.56/1. Ukraine and Kosovo, in contrast, women to not bring claims against husbands or employers) perform above the global average and well above the further hinder access to justice. regional average for Europe and Central Asia (0.58/1). EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 16 > > > F I G U R E 2 - Access and Affordability of Civil Justice Varies Across FCS Figure 3 1 0.9 0.8 0.7 0.6 WJP RLI 2022 Score 0.5 0.4 0.3 0.2 0.1 0 UKR KOS NGA LBN CMR NER MOZ VEN COG AFG ETH MLI ZWE HTI DRC BFA MMR SDN Access and affordability of Civil Justice Sub-Saharan Africa Global Average ECA EU+EFTA+North America Source: WJP RLI 2022, Indicator 7.1. Note: WJP RLI scores range from 0 to 1, with 1 indicating the best score. AFG = Afghanistan, BFA = Burkina Faso, CMR = Cameroon, COG = Republic of Congo, DRC = Democratic Republic of Congo, ECA = Europe and Central Asia, EFTA = European Free Trade Association, EU = European Union, ETH=Ethiopia, HTI = Haiti, KOS = Kosovo, LBN = Lebanon, MLI = Mali, MMR = Myanmar, MOZ = Mozambique, NER = Niger, NGA = Nigeria, SDN = Sudan, UKR = Ukraine, VEN = Venezuela, ZWE = Zimbabwe. > > > B OX 1 - Country Examples of Barriers to Access to Justice Related to Vacuums in the Legal Framework In Eswatini, laws explicitly grant women a minority legal status, despite a constitutional provision that all laws be subject to the principle of nondiscrimination based on gender (Hallward-Driemeier and Hasan 2013). In South Sudan, the drafting process of the permanent constitution has been ongoing for 10 years, leaving citizens without clarity on their fundamental rights and the mechanisms to protect them. Lao PDR does not officially recognize indigenous people, so there is no specific legal basis for their protection. Kri women, for example, have a lower social status and limited freedom of expression and participation in public life. Deep- rooted stereotyped perceptions of inferiority, even among the women themselves, deprive them of opportunities to ac- cess justice mechanisms (EU, UN Women, 2013). In Yemen, a woman is not recognized as a full person before the court. Generally, a single woman’s testimony is not taken seriously unless backed by a man’s testimony, and women cannot testify at all in cases of adultery, libel, theft, or sodomy. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 17 Even when a substantive right is recognized in the legal the recourses and rights they have, such as the possibility to framework, its enforcement may be hindered by the lack appeal or seek for expert advice (Ramos-Maqueda and Chen of direct access to a complete, official, and searchable 2021). In many FCS, even lawyers and judges do not have repository of national laws and regulations. This creates access to a reliably complete and searchable collection of issues of consistency and predictability of decisions, limiting laws and regulations, leading to potentially low-quality legal access. A lack of understanding of the legal procedures affects advice and decisions (Figure 3). the outcome of the process, as citizens might not be aware of > > > F I G U R E 3 - A Lack of Publicly Available Information is Common in FCS Figure 4 1 0.9 0.8 0.7 0.6 WJP RLI 2022 Score 0.5 0.4 0.3 0.2 0.1 0 UKR KOS BFA LBN HTI MLI SDN AFG ETH NER CMR MOZ NGA VEN MMR ZWE COG DRC Publicized laws and gov't data Sub-Saharan Africa Global Average ECA EU+EFTA+North America Source: WJP RLI 2022, Indicator 3.1 Note: WJP RLI scores range from 0 to 1, with 1 indicating the best score. AFG = Afghanistan, BFA = Burkina Faso, CMR = Cameroon, COG = Congo, DRC = Democratic Republic of Congo, ECA = Europe and Central Asia, EFTA = European Free Trade Association, EU = European Union, ETH = Ethiopia, HTI = Haiti, KOS = Kosovo, LBN = Lebanon, MLI = Mali, MMR = Myanmar, MOZ = Mozambique, NER = Niger, NGA = Nigeria, SDN = Sudan, UKR = Ukraine, VEN = Venezuela, ZWE = Zimbabwe. Vacuums in the legal framework often extend to the or because they have no alternatives, the world’s low-income rules of engagement between formal and informal people overwhelmingly favor customary justice systems (Goff dispute resolution mechanisms, leading to a lack of 2016). regulation on adequate courses of actions alternative to the courts for the pursuit of substantive rights. Most While reliance on customary actors is common around FCS are characterized by legal pluralism, where the formal the world, it is especially prominent in FCS. In the African justice system coexists with informal ones, which can be local, continent, for example, 71 percent of people in FCS rely on traditional, customary, or religious courts (Ahmad and Von traditional leaders, compared with 59 percent in non-FCS Wangenheim 2021). In these settings, overlapping normative (Figure 4). The number is above 80 percent in Burundi, legal systems exist in tandem with the state legal system, and Ethiopia, the Gambia, Mali, Nigeria, and Sierra Leone. During justice and security are delivered by a large number of state conflict and reconstruction, the lack of institutions or their and non-state actors (Choudhury 2010). Whether by choice inefficiency lead more users toward these systems. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 18 > > > F I G U R E 4 - Reliance on Customary Actors is more Prominent in FCS 100% 90% 80% 70% Angola Burkina Faso Burundi 60% Cameroon Alegria Côte d’Ivoire Benin 50% Ethiopia Botswana The Gambia Cabo Verde Guinea Egypt 0% Liberia Eswatini Madagascar Gabon Mali Ghana 30% Mozambique Kenya Lesotho Niger Malawi Nigeria 20% Sao Tome and Principe Mauritius Morocco Sierra Leone Namibia 10% Sudan Senegal Togo South Africa Zimbabwe Tanzania, Tunisia, Uganda, Zambia 0% Source: Afrobarometer (2021). Note: All countries that appeared at least once in the FCS list over the last 15 years are included in the Average FCS. This graph considers instances in which traditional leaders have “some” or “a lot” of influence on solving disputes. Customary justice systems are especially prominent in for example, the existence of customary justice systems is rural areas, mostly for issues of family law, property, and barely recognized in the law, despite it being the forum of petty crimes. Customary systems, which constantly evolve choice for nearly 70 percent of the population. The customary as values change over time, are part of the social, cultural, system has de facto jurisdiction over family law, property and political fabric of community life. As they are often the disputes, and petty crimes, and plays a role in alleviating the primary means of enforcing community rules and resolving backlog of the formal courts (Bosio, forthcoming). However, land-related conflicts, their role is especially prevalent in post- this role could be leveraged more if formalized, for example, conflict settings where land disputes are frequent and formal by establishing circumstances in which cases can be deferred institutions are often weak. They are frequently depicted as to the customary system. Other countries, such as Togo, have more accessible, more predictable, fairer, and more concerned opted for more integration and have reaped the benefits. with social reparations. They can provide timely and effective resolution of disputes, facilitate expeditious reconciliation Customary systems pose challenges as well. These between parties, and offer a framework for community-level systems can be discriminatory and exclusionary, and law and order (Chauveau, Le Pape, and Olivier de Sardan contribute to human rights violations (Harper 2011). They can 2001; Harper 2011). Decisions are easily enforced through also lead to a disregard of formal laws, which can sometimes social pressures and regional influences. conflict with customary ones (Ali, Deininger, and Goldstein 2014). Customary rules often reflect the realities of patriarchal Especially in some contexts, customary justice systems societies and are used to disempower women. Better contribute to broadening access to justice, but the harmonization of the customary system with the formal one unregulated interactions with the formal court system could help address these challenges, for example, through the may hinder their effectiveness. In some countries, Liberia application of constitutional equality guarantees to customary EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 19 systems. In 1995, for example, Uganda adopted a Constitution countries like Botswana and Lesotho, whose constitutions that includes a Bill of Rights that prohibits discriminatory formally exclude customary law from the prohibition against and degrading laws and customs (in stark contrast with discrimination). > > > B OX 2 - Country Examples of Barriers to Access to Justice Related to Vacuums in the Rules of Engagement between Formal and Customary System In non-Taliban controlled areas of Afghanistan, about 80 to 90 percent of all disputes are mediated in the customary system (Wojkowska 2006). In Sierra Leone, about 85 percent of the population does not have access to formal justice and relies on traditional measures (Sriram 2007). In Tanzania, many women are reluctant to take family disputes involving maintenance, custody, or divorce to the Bawak- ta committees, the central arbiters of religious law by the state, as they are viewed to favor men (Hallward-Driemeier and Hasan 2013). Togo decided to recognize customary laws to some extent (something that is not common in Africa). Ordinance No. 78-35 of 1978 sets out areas in which customary law is applicable, such as the capacity to contract, marry, divorce, and inherit (Hallward-Driemeier and Hasan 2013). 2.2 Barriers Related to Efficiency Few people in FCS can access information, advice, or had legal disputes varies greatly, ranging from 21 percent in representation to help them better understand or resolve Myanmar to 79 percent in Mali. Of these, the majority knows their problems. The efficiency dimension of access to justice where to receive advice, information, and representation in concerns the ability to obtain recourse in a reasonable time, Afghanistan (69 percent) and Nigeria (65 percent), but not as well as the existence of mechanisms that guarantee that in Zimbabwe (44 percent) and Burkina Faso (41 percent) outcomes are accessible to all (such as availability of legal aid, (Figure 5). In these instances, people prefer to turn to family contingency fee agreements, or small claim courts). Data from members or community elders to seek assistance for WJP shows that the percentage of people in FCS that have their legal problems (Figure 6). EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 20 > > > F I G U R E 5 - Few People in FCS can Access Information, Advice, or Representation Figure 6 100 90 80 70 60 Percentage (%) 50 40 30 20 10 0 MLI ETH BFA AFG DRC NGA MOZ CMR LBN UKR NER VEN ZWE MMR Legal Problems Legal Capability Sources of Help Source: WJP Global Insights on Access to Justice, 2019. Note: The indicator on Legal Problems shows the percentage of those surveyed who experienced any legal problem in the last two years; the one on Legal Capability shows of those who experienced a legal problem in the last two years, the percentage who knew where to get advice and information; and Sources of Help shows of those who experienced a legal problem in the last two years, the percentage who reported obtaining information, advice, or representation to help them better understand or resolve their problems. Includes countries from the 2023 FCS list for which data are available in the WJP Global Insights on Access to Justice. AFG = Afghanistan, BFA = Burkina Faso, CMR = Cameroon, DRC = Democratic Republic of Congo, ETH = Ethiopia, HTI = Haiti, LBN = Lebanon, MLI = Mali, MMR = Myanmar, MOZ = Mozambique, NER = Niger, UKR = Ukraine, VEN = Venezuela, ZWE = Zimbabwe. > > > F I G U R E 6 - A High Percentage of People in FCS Refer to Friends or Family for Legal Advice Figure 7 100 90 80 70 60 Percentage (%) 50 40 30 20 10 0 ETH UKR DRC MMR NER MOZ CMR BFA LIC MLI AFG LBN ZWE NGA VEN Friend or Family Lawyer or Professional Advice Service Government Legal Aid Office Religious or Community Leader Source: WJP Global Insights on Access to Justice, 2019. Note: Includes countries from the 2023 FCS list for which data are available in the WJP Global Insights on Access to Justice. AFG = Afghanistan, BFA = Burkina Faso, CMR = Cameroon, DRC = Democratic Republic of Congo, ETH = Ethiopia, LBN = Lebanon, LIC = low-income countries, MLI = Mali, MMR = Myanmar, MOZ = Mozambique, NER = Niger, NGA = Nigeria, UKR = Ukraine, VEN = Venezuela, ZWE = Zimbabwe. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 21 Financial constraints are frequently at the root of people’s or conflict—and a narrow market for legal services that is inability to seek professional advice and pursue their limited to accredited lawyers and does not make use of other claims. Globally, between 42 percent and 90 percent of professionals, such as paralegals. Financial barriers, however, individuals who decide not to seek legal assistance cite cost are not limited to lawyer fees. They extend to transport costs (perceived or actual) as the reason for not doing so (OECD (e.g., from rural areas without court access), administrative 2018). In FCS, this is exacerbated by limited or nonexistent fees (e.g., court fees or charges for investigative work), legal aid—sometimes due to a repurposing of resources away facilitation payments that may be needed to have claim from these services during periods of economic deterioration progress through the court system, and opportunity cost. > > > B OX 3 - Country Examples of Financial Barriers to Access to Justice In Afghanistan and the Democratic Republic of Congo, government-funded legal aid services are not available (UNO- DC 2016). In Burkina Faso, Cambodia, Central African Republic, Comoros, the Democratic Republic of Congo, Papua New Guinea, Timor-Leste and Zimbabwe, the cost associated with contract enforcement is more than 80 percent of the claim value (WBG 2020). In Liberia, only some of the administrative fees are regulated (for example, bailiff-related transport costs are not), mak- ing the final cost unpredictable and opening the door for users’ subsidization of formal costs. In Myanmar, recent amendments to the legal aid law make the service unavailable during pretrial detention, leaving the most vulnerable unrepresented in some of the most challenging portions of criminal charges. Several problems specific to FCS can complicate efficient the conflict phase), lack of financial resources (as these are service delivery, including a lack of government capacity, diverted toward other reconstruction efforts), and lack of basic lack of government willingness, or the breakdown of equipment. In countries affected by violent conflict, the lack of social order through conflict. During the reconstruction capacity can further manifest in a total lack of physical court phase, lack of capacity can manifest because of lack of infrastructure as well as destroyed or missing files. qualified personnel in the courts (as many people left during EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 22 > > > B OX 4 - Country Examples of Barriers to Access to Justice Related to Capacity In Afghanistan, many courts are inoperable, and those that do function are understaffed. Insecurity, lack of proper train- ing, and low salaries have driven many judges and prosecutors from their jobs. Those who remain are highly susceptible to corruption. The public, consequently, has no confidence in the courts (ICG 2010). In Liberia, hundreds of qualified judicial personnel fled the country during the conflict. Much of the country’s judicial infra- structure was either destroyed or looted (UNDP 2022). Reconstruction and rehabilitation of court infrastructure became a priority after the conflict to ensure access to justice. The insecurity and unrest that took place in Côte d’Ivoire between 2000 and 2009) led to widespread looting and de- struction of infrastructure in the judicial branch and throughout the government (USAID 2013c). Iraq, Libya, Syrian Arab Republic, and Yemen suffered from violent conflict that devastated infrastructure and national economies, with spillovers to neighboring countries such as Jordan and Lebanon. After conflict, civil, commercial, and administrative justice services were rarely available. If available, services were inefficient, of poor quality, or difficult to access, and there were obstacles to enforcement. 2.3. Barriers Related to Fairness Minorities and marginalized groups face even more legal constraints related to marriage, and gender differences limited access to justice than the general population in property and inheritance (WBG 2022b). The role of women in FCS, partly because they are also less likely to find in society and customs favoring men also drive discriminatory recourse from non-state actors. The third dimension of practices, alongside a lack of financial independence and access to justice—fairness—includes ensuring that systems constraints because of household responsibilities. Women for addressing social harm and legal and social problems might face social pressure not to bring disputes into the judicial are just and inclusive. This aspect of access to justice can system, as immediate family members, in-laws, and the wider be impacted by procedural obstacles for vulnerable groups, local community often discourage them. Women may come resulting in unfair processes and outcomes or biases among under heavy social pressure not to disturb the status quo. If justice professionals and lawyers, which undermine the they do, they and their children may be ostracized, harassed, credibility of the justice system. stigmatized, subjected to violence, or excluded by their communities (Bosio, forthcoming). The low representation Access to justice for women, for example, is lower in FCS of women on the bench can also undermine the confidence than in other lower-income countries, on average (Figure women have in the justice system (Badesch 2018). 7). Discrimination can be direct (i.e., explicit differences are made based on gender) or indirect (i.e., laws are gender-neutral), but their practical application is not. Some of the possible causes are constraints on freedom of movement, EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 23 > > > F I G U R E 7 - Access to Justice for Women is Lower in FCS than in Lower-Income Countries on Average Figure 8 1 0.9 0.8 0.7 Democracy Index 2022 0.6 0.5 0.4 0.3 0.2 0.1 0 D M H B Q M N R R G D G LI N I A E I A C G B R S N R R OZ I F HT BD ER CA ZW TL UK DR SL M CM SY NE GN NG BF SS TC PN ET AF VE CO LB IR SD M SO YE M M Access to justice for women HIC LIC UMC Source: Global State of Democracy Index, 2022. Note: The score ranges from 0 to 1, where 1 represents the strongest democracy. Includes countries from the 2023 FCS list for which data are available in the Global State of Democracy Index. AFG = Afghanistan, BDI = Burundi, BFA = Burkina Faso, CAF = Central African Republic, CMR = Cameroon, COG = Congo, DRC = Democratic Republic of Congo, ERI = Eritrea, ETH = Ethiopia, GNB = Guinea-Bissau, HIC = high-income countries, HTI = Haiti, IRQ = Iraq, LBN = Lebanon, LIC = low-income countries, MIC = middle-income countries, MLI = Mali, MMR = Myanmar, MOZ = Mozambique, NER = Niger, NGA = Nigeria, PNG = Papua New Guinea, SDN = Sudan, SLB = Solomon Islands, SOM = Somalia, SSD = South Sudan, SYR = Syrian Arab Republic, TCD = Chad, TLS = Timor-Leste, UKR = Ukraine, UMC = upper middle-income countries, VEN = Venezuela, YEM = Yemen, ZWE = Zimbabwe. Similarly, low literacy rates, education levels, and statutes and court procedures is rarely the native tongue of language barriers—all prominent in FCS —hinder access most citizens in FCS, where local dialects are prominent and to justice, especially when coupled with limited legal aid interpretation services are non-existent. and legal services. Low literacy levels make individuals dependent on the assistance of relatives, friends, or paid Finally, people who live in rural areas face geographical services to read and understand laws and court documents, barriers to access to justice related to difficulties in and force people to disclose personal and possibly intimate getting to the courts. These can be the result of government information (especially problematic for women who seek prioritization of resources for areas with high population assistance against domestic violence or who intend to exercise density, lack of roads and infrastructure to reach the courts, their right to divorce in conservative societies). Low education lack of public transport, gender-specific restrictions on levels compromise an individual’s ability to understand their movement, and security challenges in case of widespread rights and insist on their enforcement. The language of the violence or pockets of violence in the country. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 24 > > > B OX 5 - Country Examples of Group-Specific Barriers to Access to Justice In Afghanistan and Burkina Faso, distance from the courts was one of the main problems influencing people’s decision on whether to go to civil courts to resolve a dispute (UNODC 2016). In Burundi, the current legal system is largely derived from Belgian law applied to non-Burundians during colonial times. Its appropriation by the administration has proven difficult, if only because it is mostly in French—a language fully under- stood by merely 12.5 percent of the population (Chaara, Falisse, and Moriceau 2022). In Cambodia, about 84 percent of the population lives in rural areas, far from the courts. People must travel long distances at great cost to engage with the justice system, exposed to unfamiliar environments and unsafe conditions (Sepulveda and Donald 2014). In Timor-Leste, laws and regulations are written and published in Portuguese, a language that most Timorese do not understand. Only a limited number of laws are translated into Tetum, the predominant language (UNDP 2007). In Sierra Leone, Tanzania, and Zambia, illiteracy is cited as a significant reason for certain groups’ lack of access to justice (Bowd 2009). Many illiterate people are intimidated by the formal legal system and engage only with the informal system, with which they are familiar. This is especially true for women, given the high level of female adult illiteracy (61 percent in Sierra Leone, 63 percent in Tanzania, and 63 percent in Zambia). In Ukraine, inhabitants of rural areas must travel on average 100–200 kilometers to reach the nearest prosecutor’s of- fices (Lapkin 2019). In Yemen, women cannot leave their house without the husband’s permission, limiting their ability to file cases in court (Press Equality Now 2021). Corruption impacts the population’s perception of the using justice institutions to resolve disputes (Beqiraj and courts’ fairness and is widespread in FCS, in part because McNamara, 2014). Corruption and impunity may also erode it thrives where institutions are inexistent or weak. The the population’s confidence in the state’s willingness to ensure judiciary can be both a source of corruption and fail to enforce the speedy and fair administration of justice and to provide measures against corrupt behavior. Many of the countries basic legal guarantees in line with human rights norms and that are included in the 2023 FCS list display high levels of standards (Harper 2011). In FCS, the culture of corruption corruption (Figure 8). This impacts access to justice in many is closely related to the capacity problems faced by state ways. It hampers the fair resolution of disputes for those that providers and their inability to pay the sector’s personnel a cannot afford the economic costs of bribes, and because of living wage. the fear of unfairness, it also discourages individuals from EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 25 > > > F I G U R E 8 - With Few Exceptions, FCS are also perceived to be the Most Corrupt Figure 9 180 Syria Nicaragua Comoros Iraq 160 Afghanistan Liberia Paraguay 140 Papua New Guinea Bolivia 120 Mongolia Ukraine Indonesia Turkey 100 Argentina Ethiopia CPI (2022) Vietnam Timor-Leste Burkina Faso 80 Malaysia Armenia Solomon Islands Mauritius 60 Rwanda Georgia 40 Bhutan France 20 Finland Denmark 0 0 20 40 60 80 100 120 140 160 180 FSI (2023) Source: CPI (2022); FSI (2023). Note: The Corruption Perceptions Index (CPI) ranks 180 countries and territories by their perceived levels of public sector corruption, scoring on a scale of 0 (highly corrupt) to 100 (very clean). The Fragile States Index (FSI) ranks countries from high levels (1) to low levels of fragility (179). For the purposes of this graph, the FSI ranks are inverted, and a higher number indicates higher levels of fragility. Countries in orange are FCS countries according to WBG’s classification for 2023. Beyond corruption, improper government influence in civil Wave VII 2021). Similarly, in Mali and Nigeria, 62 percent and criminal justice is high in FCS. Improper government of the population does not trust courts of law at all or trusts influence refers to the likeliness of the government to influence them just a little. That percentage grows to 65 percent in the justice institutions and ignore their decisions, leading to Comoros (Afrobarometer 2021). Though this lack of trust is less independence and affecting the overall effectiveness of often well-grounded in evidence of weakness, ineffectiveness, the justice system by hindering accountability and trust in the and corruption of state institutions, it also exacerbates these system (Figure 9). problems by encouraging citizens to disengage with the state. It also drives them to seek protection, conflict resolution, Trust in courts and the legal system is especially low in and public services from non-state actors, which further some FCS countries. In Lebanon, for example, 59 percent undermines trust in the state. The systemic lack of access to of the population does not trust these institutions at all, while legal knowledge (Section 2.1) and legal counsel (Section 2.2) another 24 percent does not trust them a lot (Arab Barometer are leading causes of the lack of trust. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 26 > > > F I G U R E 9 - Improper Government Influence in Civil and Criminal Justice is Common in FCS 1 0.9 0.8 0.7 0.6 WJP Score 0.5 0.4 0.3 0.2 0.1 0 VEN MMR HTI CMR DRC ZWE NER AFG ETH LBN MOZ SDN UKR COG LIC MLI MIC NGA BFA KOS HIC Average Average Average Civil Justice is free of improper government influence Criminal Justice is free of improper government influence Source: WJP RLI 2022, Indicators 7.4 and 8.6. Note: WJP, RLI scores range from 0 to 1, with 1 indicating the best score. Includes countries from the 2023 FCS list for which data are available in the WJI RLI. AFG = Afghanistan, BFA = Burkina Faso, CMR = Cameroon, COG = Congo, DRC = Democratic Republic of Congo, ETH = Ethiopia, HIC = high-income countries, HTI = Haiti, KOS = Kosovo, LBN = Lebanon, LIC = low-income countries, MIC = middle-income countries, MLI = Mali, MMR = Myanmar, MOZ = Mozambique, NER = Niger, NGA = Nigeria, SDN = Sudan, UKR = Ukraine, VEN = Venezuela, ZWE = Zimbabwe. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 27 3. >>> Increasing Access to Justice in FCS • • • Barriers to access can originate from inside or outside formal justice institutions, requir- ing interdisciplinary and multi-stakeholder initiatives. Reforms will only work if drafted and delivered through inclusive and transparent political processes. Reforms should be designed with the level of fragility in mind. Several approaches have been used to improve access to justice in challenging environments, including through WBG-financed projects. Since the early 1990s, the WBG has supported many justice reform projects, including in FCS, under the premise that an independent and effective judiciary is a precondition for economic development. The first judicial reform project financed by the WBG was a technical assistance loan to Venezuela in 1992 (Santos 2006). Gradually, the scope of these projects expanded to include aspects related to judicial independence, judicial training, court administration and case management, control of corruption, appointment of judges, criminal justice, and government accountability. Barriers to access can originate from inside or outside formal justice institutions, requiring interdisciplinary and multi-stakeholder initiatives that involve the government, development partners, civil society organizations (CSOs), nongovernmental organizations (NGOs), and universities. Some of these solutions are specific to FCS, while others can work in non-FCS settings as well. A reform program often involves multiple interventions which in turn can have effects across several barriers. This section uses country examples to highlight different ways to increase access to justice. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 28 3.1. Establish Transitional Justice Processes Transitional justice processes are essential in the initial Angola: Following the peace agreement between the phases of reconstruction to reduce the possibility that government forces and União Nacional para a Independência conflict will recur. The Office of the High Commissioner Total de Angola, birth registration was part of the Child for Human Rights (OHCHR) recognizes that when a period Protection Strategy, which was used to help identify and trace characterized by widespread or systematic human rights family members of former child soldiers (UNICEF 2007). violations ends, those who suffered will seek to fulfil their rights to the truth, justice, and reparation, as well as demand El Salvador: In 1992, the government signed a peace institutional reforms to prevent the recurrence of violations agreement with left-wing guerrillas ending the 12-year civil (OHCHR 2015). Transitional justice includes both judicial and war, during which at least 75,000 people perished. A Truth non-judicial mechanisms, with differing levels of international Commission was established to investigate serious acts involvement (or none at all) and individual prosecutions, of violence that occurred during the conflict. According to reparations, truth-seeking, institutional reform, vetting and the Due Process of Law Foundation (DPL) the commission dismissals, or a combination thereof. documented over 22,000 complaints of human rights violations committed during the armed conflict, including extrajudicial Effective transitional justice processes are essential for killings, enforced disappearances, and torture. Among the institutional reform and to enhance trust. Transitional recommendations made by the commission in its final report justice is both a backward-looking concept that aims to were for both monetary and symbolic reparations to be made promote accountability and rule of law regarding periods of by the Salvadoran state to victims (DPL 2022). conflict (for example, pursuing prosecutions or amnesties to address past human rights violations or undertaking reparatory Kosovo: During the conflict in early 1999, authorities and truth-seeking processes) and a forward-looking one deliberately destroyed the personal identity documents of focused on institution-building/reconstruction endeavors to those fleeing (OHCHR 2015). The European Union Rule of address practical issues (such as lack of documentation or Law Mission in Kosovo copied and certified a total of 12,391 land disputes). For societies emerging from conflict, a robust civil and religious registry books of birth, marriage, and death in transitional justice process has the potential to considerably Serbia and handed them over to the Kosovo Civil Registration enhance the credibility of the justice system by laying the post- Agency (OHCHR 2015). conflict legal and institutional foundation. These programs, however, need to be balanced with the inevitable demands The intentional destruction of personal identity documents of tight fiscal constraint and limited state capacity (Guarin and is common during conflict, requiring transitional justice Londoño 2023). mechanisms to address it. In Timor-Leste, during the violence following the United Nations sponsored referendum Beyond reparation, typical issues that arise in the first on independence in 1999, most of the official records and phases of reconstruction include land issues, lack of databases were burned. Similarly, in Bosnia and Herzegovina, identity documents, and lack of other official documents birth records stored in civil registries were destroyed so that such as marriage certificates, birth certificates, and people could not identify themselves and claim their rights and deeds. Until citizenship is restored through basic documents, properties. In Cambodia, all documents relevant to civil status individuals’ access to basic social services such as education were destroyed by the Khmer Rouge in the 1970s. and health care is at risk (UNICEF 2007). These documents are also essential for other activities like employment, marriage, Rwanda: In 2001, 10,000 community courts (Gacaca Courts) obtaining a passport, voting, opening a bank account, and with over 100,000 lay judges were established to try nearly defending oneself in court. Individuals, however, are also 2 million cases from the 1994 genocide (Ingelaere 2019). looking for reparation of the causes and consequences of These courts aimed at facilitating the recognition of and human rights violations and inequality in countries emerging reparation for victims are intended to (1) establish the truth from conflict and violence. about what happened, (2) accelerate the legal proceedings for those accused of genocide crimes, (3) eradicate a culture of EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 29 impunity, (4) reconcile Rwandans and reinforce their unity, and country where the government is no longer in control. The (5) use the capacities of Rwandan society to administer justice goal is to facilitate access to documents during the conflict based on Rwandan custom (Bornkamm 2012). as well as to enable merging with the official registry once the conflict ends. To date, these centers have issued more than Syrian Arab Republic: The International Legal Assistance 100,000 documents, recording births, marriages, and divorces Consortium (ILAC) has supported local Syrian organizations (ILAC 2017). in reopening personal documentation centers in parts of the 3.2. Review and Update the Legal Framework A comprehensive review of a country’s legal framework to criminal procedure code and criminal code that date to the identify areas for legal reform is the first step in removing 19th century (USAID 2012a). Revamping the codes involved de jure barriers to access to justice. These barriers can streamlining arraignment procedures, introducing plea derive from legal vacuums that translate into the denial of bargaining, and encouraging alternative sentencing options. rights, or from outdated and poorly written laws that limit access to justice for certain segments of the population. Legal Iraq: The Access to Justice Program pursued a comprehensive changes can provide individuals with fundamental rights such strategy to improve access to legal assistance and government as equality, due process, the right to counsel, and the right to services, working not only on revisions to the substantive laws a criminal trial (Vapnek, Boaz, and Turku 2016). on services and rights but also on the laws governing legal practice (USAID 2013a). The former included supporting Haiti: Low-income communities suffer disproportionately from the enactment of laws on the rights of disabled people and legal gaps in the country’s outdated criminal and criminal pursuing amendments to laws on the rights of women and procedure codes. To reduce legal barriers to access to justice people without identity cards, with the goal of removing for low-income defendants, the ProJustice project revised the provisions limiting access to justice. 3.3. Engage with Non-State Actors Increasing government interest in informal justice customary marriages, divorce, and inheritance. There are also systems is key to understanding how best to engage with Alkali Courts for Muslims, which apply Sharia law (Fombad them for the strengthening of human rights, the rule of 2023). law, and access to justice. Informal justice systems often work complementarily to the formal courts, but they may Madagascar: In the late 1990s, the Malagasy government be more accessible, and they have the potential to provide enacted legislation that integrated pre-colonial customary legal quick, relatively inexpensive, and culturally relevant remedies. practices with governmental laws. The state also recognizes These systems cannot be neglected if their impact reaches customary tribunals, whose decisions can be appealed in most of the population. Especially where the objective is to the formal court system. These tribunals can adjudicate local assist groups that are most vulnerable to exploitation and village disputes relating to land use, marriage, and family least likely to be able to secure just outcomes—low-income (NYU 2013). and marginalized people—interventions must occur at the level where justice is being dispensed (IDLO 2011). Sierra Leone: Traditional justice has been used to supplement and legitimize more formal transitional justice processes Cameroon: Customary tribunals are part of the formal (Allen and Macdonald 2013). The 2000 Sierra Leone Truth hierarchy of courts as they are considered courts with original and Reconciliation Act authorized the Truth and Reconciliation jurisdiction, together with the Court of First Instance, High Commission to seek the assistance of traditional and religious Court, military courts, and administrative courts. Customary leaders to facilitate its public sessions and resolve local courts are considered trial courts specialized in matters that conflicts arising from past violations or abuses. are reserved for customary law, such as selected civil matters, EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 30 Timor-Leste: The government incorporated a more extensive reconciliation hearings involved a local dispute resolution range of customary law into their Reception and Reconciliation practice (Drexler 2009; Stanley 2009). Commission community hearings. Three-quarters of the 3.4. Broaden the Reach of Justice If the market for legal services is limited to accredited to assist low-income Sierra Leoneans seek solutions to lawyers, costs can be prohibitive, and the scarcity of justice problems. Two lawyers who trained, supervised, lawyers can impede wider community access. This can and supported the paralegals in their work directed the be addressed by allowing the provision of legal services to program. Overall, the results were positive, as it (1) increased paralegals, who can also straddle overlapping legal systems accessibility, both due to its proximity to disputants and the because they are often closer to communities (Hallward- guarantee of free justice services; and (2) had important Driemeier and Hasan 2013). Paralegals bridge the gap empowerment effects, particularly through its education and between the community and the justice system. Building advocacy efforts and willingness to resolve family disputes, rapport and trust comes easily to most community paralegals where women were often disadvantaged (WBG 2009). because they normally come from the communities they serve. Timap broadened access to justice by serving as a court of They inform individuals in their communities of their rights and first instance, bypassing traditional leaders, police, or courts advocate for their needs. Paralegals mitigate obstacles that entirely. Native Administration courts saw a decrease in cases often impede accessing justice mechanisms by explaining in areas covered by Timap (WBG 2009). basic legal procedures and court processes, helping to file emergency court order applications, accompanying vulnerable The establishment of small claims courts/procedures members to court, and filing police reports. and ADR mechanisms can expand the venues for dispute resolution. Small claims courts and procedures Rwanda: Penal Reform International (PRI) launched a pilot have jurisdiction to resolve small-value cases, and they project to develop paralegal services for detainees to reduce provide a segment of court users with a cost-effective and pretrial detention, improve access to justice, and support efficient venue to solve disputes. When developed based on the right to a fair trial. Paralegals were involved in informing user needs, caseload, court capacity, and resources, small detainees of their rights, so that they were better equipped to claims courts and simplified procedures can enhance court- monitor their own cases and represent themselves in court. user experience, provide greater access to services, reduce They acted as liaisons with the prison administration, police, caseload, enhance efficiency, free up court resources, and the prosecution service, and the judiciary. PRI complemented increase public trust in the judicial system (WBG 2016c). this work by building the capacity of prison staff and running They are characterized by limited jurisdiction, simplified rules, workshops on human rights (Bequiraj and McNamara and rapid solutions. They are also cost-effective, as filing and 2014). Paralegals conducted awareness sessions for over processing fees in these alternative venues are generally 3,000 detainees and PRI distributed 7,300 booklets on the lower than in regular courts (WBG 2016c). Currently, as many rights of detainees. Paralegals’ assistance supported (1) as 132 economies have either a stand-alone small claims court the permanent release of 625 detainees; (2) the provisional or a simplified procedure for small claims (WBG 2021). Justice release of 168 detainees; (3) 369 guilty pleas; (4) 1,055 court is also sought and delivered through non-judicial institutions summonses; (5) the issuance of 1,100 judgments so that the such as ADR mechanisms. Mechanisms such as mediation prisoners could understand the decision position; and (6) 455 can be an alternative to the formal adversarial system in appeals (PRI 2012). such areas as family law and property disputes. They may also be more familiar to communities already accustomed to Sierra Leone: In 2006, the WBG supported a community- traditional justice forums, such as village courts or councils based paralegal program called Timap for Justice. Timap of chiefs. These mechanisms can be backed by the formal is a not-for-profit organization offering free justice services system and employ statutory, customary, or religious law, or across the country (WBG 2009). Timap paralegals employed they can be entirely separate from the formal system (Glasser a flexible set of tools—advocacy, education, mediation— and Roberts 1993; LeRoy 2004; Ubink 2011). EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 31 Morocco: Small claims are examined by judges from special Aid Council of Nigeria (LACON) to expand and decentralize divisions of the first-instance courts. These judges travel and legal aid services in Kaduna State, develop staff capacity conduct court sessions at small localities so that citizens there through training programs in alternative dispute resolution can obtain justice accessibly. Oral filing is allowed and is and mediation, and introduce paralegal training. LACON was recorded by court clerks on a template issued by the Minister established in 1976 to provide initially free legal services in of Justice. Given Morocco’s low literacy rate and the fact criminal matters to indigent Nigerians. In 2011, a new Legal that approximately 40 percent of the population is not fluent Aid Act expanded LACON’s scope to include civil matters. In in Arabic (the official court language), an opportunity for oral 2011, LACON had a single office in each state, which was filing is helpful (WBG 2021). insufficient to serve in both criminal and civil matters. Over the course of two years, 20 legal aid clinics were opened, Tunisia: Minor claims are examined by one of the 89 district providing legal assistance to over 830 low-income people. In courts responsible for adjudicating minor disputes. They 2011—before the project started—LACON had received 36 are frequently staffed by a single judge, with considerable cases statewide. By the time the project closed in November efficiency gains. 2015, LACON received over 2,300 cases. Also, 800,000 people were reached through awareness raising and 6,200 Ghana: A Media Week program in April 2003 encouraged people were trained on legal rights and ADR mechanisms the use of alternative methods of dispute resolution. That (WBG 2016b). same year, the chief justice incorporated ADR into the court system by mandating judges and magistrates to invite parties Solomon Islands: In 2015, the Community Governance to first attempt to settle their case before a mediator. In 2007– and Grievance Management project (P147005) supported 2008, approximately 150 mediators were recruited, trained, the selection of community officers (Cos) to serve as part and assigned to courts throughout the country, leading to of provincial administrations. Cos quickly became one of approximately 2,600 referrals. Nearly half were successfully the primary channels that community members turn to with resolved (Dieng 2011). For ADR Week 2023, the courts disputes, whether directly via mediation processes or by engaged in a “mass mediation exercise” to resolve cases. A helping other community leaders resolve disputes. Fifty-nine total of 132 courts across the country participated—33 circuit percent of people reported experiencing improved accessibility courts and 99 district courts. A total of 1,171 cases out of 3,011 and 77 percent reported experiencing improved effectiveness cases were successfully mediated (ADR Daily 2023). of community grievance management mechanisms (WBG 2019b). Nigeria: From 2012 to 2015, a WBG-financed project (P115863) on Access to Justice for the Poor helped the Legal 3.5. Conduct Awareness Campaigns and Sensitization to Gender Issues It is crucial to build citizens’ awareness—especially Botswana: To build legal awareness, the government decided among women and vulnerable groups— of legal rights and to simplify and translate laws affecting women (mainly on develop their capacity to exercise these rights. Improving marriage, divorce, and inheritance) into local languages, substantive protections and access to the legal system will have and to circulate a handbook. Standard court forms in English negligible impact if citizens are unaware of the laws protecting were also translated into Setswana. The free handbook was them. Disseminating information on existing protections and distributed to social workers, educators, and organizations provisions, particularly in rural areas and among those who for women (Hallward-Driemeier and Hasan 2013). While the are less educated, is crucial. This can be achieved through handbook was helpful to women who could read, it did not legal awareness campaigns, the release and diffusion of legal benefit those who could not, nor did it reach enough of the information in a friendly format, free access to updated laws female population. It was distributed only to a limited number and regulations, and “open court” initiatives. Laws should be of institutions that few women had contact with (Hallward- translated into local languages and dialects and explained in Driemeier and Hasan 2013; Molokomme 1990). simplified terms. Legal empowerment intends to give people the power to know and use the law. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 32 Côte d’Ivoire: The ProJustice project created a broad Transitions following conflict present an important information campaign to help the public understand how the opportunity to address injustices faced by women during judicial system works and what people can expect from it. It times of war. They are also an opportunity to transform also created methodological and pedagogical tools to generate underlying inequalities and gender-based discrimination changes in the behavior of judges, prosecutors, and clerks through the new constitutions, legislative reforms, and working in pilot courts and their supervisors (USAID 2017). institutions already in place. The key to success is the application of gender expertise and guidance to the formulation Guinea-Bissau: In 2019, the WBG supported the preparation of truth commissions, reparation programs, and other of the Legal Training Manual for Professionals on the Law transitional justice mechanisms. Ensuring the participation Against Female Genital Mutilation (FGM) (P163901). FGM is of women in the shaping of transitional justice measures a traditional practice that affects about 50 percent of women guarantees that truth commissions and reparation programs in the country. The manual was accompanied by legal literacy meet women’s needs (UN Women 2011). campaigns, training sessions, and a dedicated hotline. Legal literacy campaigns were carried out in seven communities Guatemala: The Program Against Violence and Impunity for duty-bearers and rights-holders to promote knowledge of (PAVI) worked to implement procedural and policy changes the law against FGM. These campaigns combined traditional that came into effect with enactment of the new Law Against media (radio, pamphlets, popular songs, information manuals, Sexual Violence, Exploitation, and Human Trafficking posters, and T-shirts) with community outreach campaigns. (USAID 2012b). The improved provisions modified the Legal literacy is necessary, since even women do not always procedure for receiving sexual violence complaints; they also view FGM as a criminal offense but as a “necessary” traditional institutionalized coordination among relevant government practice. Legal and health professionals’ knowledge of the law units to speed the issuance of protection orders and arrest is key to decreasing FGM in Guinea-Bissau and increasing warrants. The PAVI project also promoted the use of gender- compliance with the law and effective prosecution (Guerreiro sensitive psychologists to interview victims of sexual crimes and Pires 2019). The Legal Training Manual for Professionals and permitted friends and family members to be present on the Law Against Female Genital Manipulation has been during the delivery of a victim’s official statement. expanded to other countries, including Nigeria and Senegal. Similarly, the Legal Literacy Community Training Manual was Guinea Bissau: The WBG-financed projects (P163901) produced and distributed in Guinea. described above in Section 3.5 also included training sessions for judges, lawyers, prosecutors, clerks, civil registry officials, Indonesia: In 2009 a local NGO used female paralegals police officers, social workers, health professionals, civil society to expand understanding about rights and entitlements in leaders, municipality workers, international organizations’ female-headed households. Alongside international partners, representatives, and WBG coordinators on the content and the NGO supported government reforms of state and religious application of the 2011 Law against FGM, including a training justice institutions by raising awareness and assisting with on the special handling needed to respond adequately to women’s cases, contributing to a fourfold increase in the these sensitive cases (Guerreiro and Pires 2019). number of women that were able to access circuit courts the following year (OECD 2018). Pakistan: The Asian Development Bank (ADB) supported the establishment of the first specialized Model Gender- In many countries, the judiciary is male-dominated and Based Violence (GBC) Court in Lahore, Pakistan in October patriarchal, which is why gender sensitivity initiatives 2017. These courts were presided over by specialized are important to prevent discrimination of women in the judges who were gender-sensitive and have comprehensive delivery of justice. The Jurisprudence of Equality Program understanding of women’s rights. The GBV Courts also had (JEP) of the International Association of Women Judges trains specialized prosecutors. The Model GBV Court in Lahore judges and legal practitioners in applying international and significantly increased conviction rates for GBV cases from regional human rights tenets to cases in domestic courts that 4.37 percent to 16.5 percent in a little over a year of operation. involve discrimination or gender violence. Judges credit the program with alerting them to their own and others’ hidden Sierra Leone: Women survivors of gender-based violence biases, and for helping them find more effective and sensitive are benefiting from a government reparations program. ways to question witnesses. JEP has become an official part Supported by United Nations partners, this program provides of the Judicial Training Institute of Tanzania and has been skills training and microgrants to women to set up businesses incorporated into other training courses in Kenya and Uganda. (UN Women 2011). EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 33 Swaziland: A woman judge was appointed to the High Court Doo Aphane in 2010, which overturned decades of barriers to in hopes that having more women on the bench would make land registration by women married in community of property justice more accessible. Though women judges are not (where assets and debts from before the marriage are shared necessarily more sensitive to gender-based discrimination, in a joint estate between both spouses), was decided by the it may be significant that the landmark case of Mary-Joyce only appointed female High Court judge. 3.6. Reduce Cost Regulating court fees, attorney fees, and legal aid can increase in the use of courts, especially by women. Court contribute to making the courts more accessible by fees were significantly reduced for first-instance cases and removing financial barriers. Legal representation and legal even more for appeals, and the cassation fee was removed aid are at the heart of access to justice (Beqiraj and McNamara (Hammergren and Mitiku 2010). 2014). Legal representation ensures access to people who are not well-versed in court procedures, and legal aid ensures Jordan: A project completed in 2016 in Jordan (P126689) that individuals who cannot afford legal representation have delivered legal aid services to displaced Iraqis, Palestinians, access to it either free or at a reduced cost. and low-income Jordanians. Since 2012, the Justice Center for Legal Aid (JCLA), a Jordan-based NGO, has provided Burundi: The Intermunicipal Legal Aid Service (SAJI by representation to 632 Syrians, 506 Palestinians, and 48 Iraqis, its acronym in French) was part of the Gutwara Neza good as well as consultations to 1,452 Syrians, 1,123 Palestinians, governance program, jointly implemented by the EU and and 154 Iraqis. The project also established a network of 38 the government to provide legal aid to rural communities pro bono lawyers (WBG 2012a). Similarly, in 2019, the WBG and vulnerable groups. SAJI’s services were provided by a supported legal aid services such as legal counseling and legal adviser who was required to live in the municipality of representation for refugees and other vulnerable populations, assignment and hold a university degree in law (but did not particularly women. Later, another WB-financed project need to be a lawyer). The official role of the legal adviser was (P157861) enhanced JCLA’s legal advocacy. Over the course threefold: (1) organize an awareness session about legal of the grant, JCLA provided 7,615 legal services (4,539 procedures, (2) provide legal advice services, and (3) support consultations and 3,076 representations), of which about 72 and advocate for the interests of indigent people. SAJI’s percent were women. The grant also provided about 1,100 services were set up across 21 municipalities in 2010–2011 awareness sessions reaching 32,000 beneficiaries. The grant and ended at the end of 2014. In that period, beneficiaries contributed to creation of a system for legal aid in Jordan with appeared to be 14.54 to 19.71 percent more likely than non- policies and procedures now in place and with 16 legal clinics beneficiaries to use municipal courts (Chaara, Falisse, and and over 100 qualified service providers. The impact of these Moriceau 2022). services was significant—90 percent of those with closed cases who were surveyed reported exercising their rights Ethiopia: A series of reforms that improved the efficiency following a consultation service provided by JCLA, and 80 of the court system, reduced filing costs, and removed the percent reported they had solved their legal issues as result of requirement to be represented by a lawyer caused a striking the representation service (WBG 2019a; WBG 2019c). EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 34 3.7. Remove Physical and Geographical Barriers Reducing physical barriers to justice consists of ensuring of 2009, Justice on Wheels had facilitated the release of 2,513 that courthouses and other public administrative inmates, settled 5,361 cases through mediation, and provided buildings are accessible to the population. This involves free legal aid to 1,103 detainees (Sepulveda 2014). making physical changes to buildings, providing Braille and sign language interpretation, building courthouses closer Sierra Leone: Mobile courts have been recognized as an to disenfranchised communities, and establishing reliable efficient stopgap mechanism to assist the government in and affordable transportation if litigants must travel to reestablishing a formal justice system after the civil war, and proceedings. Courts in many countries are in major cities, but temporarily responding to the chronic shortage of magistrates. their jurisdictions may cover vast territories where roads are The presence of mobile courts has strengthened the role of impassable or nonexistent (Vapnek, Boaz, and Turku 2016). the formal justice system in provinces where traditional justice mechanisms are prevalent. Between August 2010 and June Mobile courts contribute to reducing geographical barriers 2012, the Sierra Leone mobile courts achieved a clearance by bringing justice services closer to the population, rate above 50 percent, held 47 magistrate court sessions and shortening the distances between justice services and five high court sessions (over a period of 107 and 50 days, the most vulnerable people. Mobile courts and mobile legal respectively), and served 10 locations (UNDP 2014). advisory teams can be a highly effective instrument, informing citizens about their rights and the possibilities of resolving Somalia: Mobile courts are organized on an ad hoc basis in disputes, and also strengthening links between state, hybrid, response to specific needs. Priority is given to criminal cases, and non-state justice institutions (UN 2021). Mobile courts which account for roughly 80 percent of the caseload, but are not new—they have been operating in the Democratic civil cases such as land disputes are also adjudicated. The Republic of Congo since 2004, in Somalia since 2008, in presence of mobile courts has promoted development of a the Central African Republic since 2009, in Sierra Leone formal justice system in a country where the traditional justice since 2010, and in Uganda since 2013. Beyond the African system (Xeer) is strongly prevalent, particularly in rural areas. continent, examples are reported from Brazil, Colombia, and From 2008 through 2012, the mobile courts (1) enrolled 1,579 Timor-Leste. cases; (2) increased the total number of cases heard by 57 percent; (3) heard 6.5 percent of the total caseload of the Democratic Republic of Congo: The ProJustice project formal justice system in 2010; and (4) organized 778 sessions helped transport judges, staff, and witnesses to remote areas, in all (UNDP 2014). where some hearings were held outdoors. In eastern regions, mobile courts have been used to conduct extraordinary Tanzania: A Justice-on-Wheels program was implemented in hearings in the areas where crimes have been perpetrated, Tanzania in 2016 (P172922). The project included design and including war crimes. In these cases, the entire court, with its construction of mobile court services in selected locations to prosecutors, clerks, lawyers, and defendants, moved closer to help close the huge rural–urban gap in justice service provision the victims (Trial International 2019). and reduce travel and transaction costs for users. Citizens including vulnerable groups (such as at-risk women), rural Jordan: The West Amman Courthouse was renovated to lower-income residents, informal traders, small businesses, address physical barriers, constructing a separate entrance large commercial enterprises, and banks, all benefited from with access to those with disabilities, as well as a comfortable the project. Beneficiaries of the two pilot mobile courts reached and secure waiting area for victims and witnesses (USAID 10,872 in 2020 (WBG 2016a). 2013b). Uganda: Mobile courts serve to provide justice to refugees in Philippines: The Supreme Court of the Philippines launched Nakivale, the country’s largest and oldest refugee settlement the Justice on Wheels project in 2004 as part of its Judicial (UNHCR 2013). The mobile magistrate’s court, whose first Reform Support Project (P066076), designed to support session began in April 2013, heard cases of robbery, land development of a more effective and accessible judicial disputes, child rape, sexual and gender-based violence, system in the Philippines. Supported by the WBG, the mobile attempted murder, and murder. The project benefited 68,000 court was established to bring justice closer to low-income refugees and 35,000 Ugandan nationals living in and around people by providing fast, free resolution of conflicts on site the settlement (Monitor 2021). through conciliation, mediation, or adjudication. As of the end EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 35 3.8. Introduce ICT ICT helps courts work more efficiently and enables access activities included facilitating e-litigation, implementing website for people in remote areas, though the lack of electricity services, installing touch screen systems, implementing an and internet connectivity can make this task difficult in electronic filing system, and establishing child/victim friendly FCS. The development and implementation of IT solutions benches. As a result of the above interventions, there were has become one of the important tools utilized by the courts in remarkable gains in access to justice via video conferencing providing more effective services and improving performance (VC) assisted court proceedings, clearance rates have (WBG 2016). Over the last two decades, many countries increased, and backlogs were significantly reduced (WBG have sought to embed and extend digital justice processes 2012b). At the end of the project, for example, over 36,012 within the framework of their court systems, resulting in a court cases had been heard using the VC facility. substantive variety in digital court architectures (Donoghue 2017). IT solutions reduce litigant costs and increase access Tanzania: In 2016, a WBG-financed project (P172922) to court services because many functions can be done online. introduced electronic case management, the use of video This may be challenging in FCS, where obstacles like lack conferences for hearings involving prisoners and foreign of consistent electricity service, lack of internal capacity to witnesses, systematic training, and a judicial performance manage systems, lack of information, lack of resources, and system that sets targets for case disposition for each judge lack of computer literacy can hamper implementation of such (WBG 2016a). Users were able to access quality integrated technologies. services via 19 newly constructed information technology (IT) enabled subordinate courts, three high courts, and six new Ethiopia: A WBG-financed project (P074020) completed integrated justice centers. Currently, 85 percent of Court of in 2012 included installation of court case management, Appeal and High Court cases have been published online. transcribing systems, and color-coded filing systems. Additional EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 36 4. >>> Policy Implications Successful transition out of conflict or violence requires legitimate and effective institutions to provide justice. Rebuilding justice systems in FCS is key for sustainable social and economic development during the reconstruction phase that follows a conflict. Countries that are at different stages on their path out of conflict and violence face multiple challenges when trying to strengthen the rule of law. It can be a long and costly process, as it is likely to entail a change of governance culture, extensive capacity-building activities, and improvements to existing infrastructure. The analysis and country examples presented in Sections 2 and 3 have policy implications that can assist governments during this process. First, interventions should be designed with the level of fragility in mind, especially given the heterogeneity of FCS. The reform design process should start with both a contextual analysis of the country and a mapping of current service realities. Contextual analysis as seen through a political economy and conflict sensitivity lens leads to a better understanding of the fragility. The nature of fragility and conflict is driven by distinct factors such as ethnic fractions, long periods of economic turmoil, and modes of governance. Second, interventions can start with a stocktaking exercise of existing justice actors. A contextual analysis can suggest reforms that consider existing sociocultural constraints. The mapping of current service delivery realities is critical to engage in a manner that responds to the legal needs of a beneficiary group within the context most relevant to them. In environments where a rule of law culture is weak or emerging, developing ideas about justice at the grassroots level can promote access to justice and assist in rehabilitation of the formal justice system, and can also form an integral part of a broader strategy supporting group security, peace building, and community development. Third, institutions should be developed harmoniously with existing dispute resolution mechanisms, including customary systems. In several FCS, the courts coexist (de facto and often de jure) with other local, traditional, customary, or religious systems and sources of jurisprudence. These systems fill an important gap for people in rural communities or of lesser means; are frequently perceived as more accessible, more predictable, and fairer; can provide timely and effective resolution of disputes; and can easily enforce decisions due to the high level of respect and deference given to traditional leaders. When designing justice institutions in post-conflict settings, caution should be used to ensure the harmonious coexistence of such institutions with existing mechanisms. Well-functioning formal justice institutions play an important role in mitigating some of the risks of traditional systems, including discrimination and human rights violations. This, however, is only valid if formal institutions are effective, which is not always the case in fragile and dysfunctional environments, so coexisting systems should be addressed in parallel. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 37 Fourth, in the immediate post-conflict period, special biases against women. Access to justice for minorities and attention should be given to disputes that have resulted people with disabilities should also be considered. directly from the conflict. Transitional justice processes (e.g., investigations, prosecutions, truth-seeking activities, Sixth, once access to justice is expanded and the or reparation initiatives) are essential in the initial phases of immediate reconstruction needs have lessened, reconstruction to reduce the possibility that conflict will recur. governments should monitor delays and resolution Typical issues that arise in the first phases of reconstruction times. The establishment of dedicated mechanisms to include land issues, lack of identity documents, and lack of handle disputes that have arisen from a conflict—alongside other official documents such as marriage certificates, birth an expansion of access to justice for remote populations, certificates, and land deeds. These processes are essential to women, and minorities—may lead to a considerable increase rebuild trust and address past human rights violations through in caseload for the courts. Governments should introduce reparatory and truth-seeking processes. case management tools to monitor the efficiency of the courts and reorient resources (budget and judges), as needed, to Fifth, access to justice can be the initial focus, starting face potentially increasing backlogs. with expanding services for rural communities. Limited geographical access is common in FCS, and often results Finally, governments should focus on ensuring that from a prioritization of resources toward areas with high decisions rendered by the courts conform with legal population density, away from areas with a lack of roads and requirements and users’ expectations. Once conflict-related infrastructure, and a lack of public transport. This disparity issues are resolved, access is increased, and efficiency is should be addressed first, as it is likely to impact the highest preserved, governments can focus on measures designed to number of individuals. Access to justice for women should increase the quality of judgments. These measures can include be tackled as well, addressed both in law and in practice. constitutional review, a review of appeal rates and reversals Governments should remove any legal limitation to women’s in appeal, and increasing specialization. This increased equal access (for example, a woman’s ability to file claims or specialization can help judges become more proficient in case leave the house without an accompanying man) and then be a disposition. Specialization may also help cut down on delays propelling force in initiating cultural changes toward eliminating and backlogs in court systems. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 38 >>> References ADR Daily. 2023. Judicial Service Pursues Mass Mediation Exercise in ADR Week. Afrobarometer. 2021. Online Data Analysis. Ahmad, J., and G. Von Wangenheim. 2021. “Access to justice: An evaluation of the informal justice systems.” Liberal Arts and Social Sciences International Journal 5 (1): 228–244. Allen, T., and A. Macdonald. 2013. Post-Conflict Traditional Justice: A Critical Overview. Justice and Security Research Programme. 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EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 45 >>> Additional Readings Acemoglu, Daron et al. 2018. “Trust in State and Non-State Actors: Evidence from Dispute Resolution in Pakistan.” Working Paper 24611, National Bureau of Economic Research. Ali, D., K. Deininger, and M. Goldstein. 2014. “Environmental and gender impacts of land tenure regularization in Africa: Pilot evidence from Rwanda.” Journal of Development Economics 110 (3): 262–275. Chemin, M. 2012. “Does Court Speed Shape Economic Activity? Evidence from a Court Reform in India.” Journal of Law, Economics, and Organization 28 (3): 460–485. Chemin, M. 2020. “Judicial efficiency and firm productivity: Evidence from a world database of judicial reforms.” Review of Economics and Statistics 102 (1): 49–64. Chen, D., and S. Deakin. 2015. “On Heaven’s Lathe: State, Rule of Law, and Economic Devel- opment.” Law and Development Review 8 (1): 123–145. Corey, A., and S. F. Joireman. 2004. “Retributive justice: The Gacaca courts in Rwanda.” African Affairs 103 (410): 73–89. Council of Europe. 2021. Report of the online roundtable on framework to measure access. Cuesta, J., L. Madrigal, and E. Skoufias. 2018. “Poverty, disputes, and access to justice in two Indonesian provinces.” Journal of Economic Policy Reform 21 (1): 21–38. Curran, L., A. Vernon, and P. Barnett. 2017. Reflecting on Community Development Practices: Improving Access to Justice by Working with Communities to Effect Change. Dale, P. 2009. Delivering Justice to Sierra Leone’s Poor: An analysis of the Work of Timap for Justice. Timap and Justice for the Poor Program. Global Concessional Financing Facility. Annual Report 2020–2021. Gramckow, H., and O. Ebeid. 2016. Leveraging technology to improve service delivery in the justice sector in South Korea. Washington, DC: World Bank. Hammergren, L. 2014. “Reforming the reformers: A different approach to access issues.” Institu- tional Competition between Common Law and Civil Law. Springer. 349–379. Human Rights Watch. 2019. Saudi Arabia: 10 reasons why women flee. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 46 IDLO. 2011. Working with Customary Justice Systems: Post-Conflict and Fragile States. Inter-American Commission for Human Rights. 2007. Access to justice as a guarantee of eco- nomic, social, and cultural rights: A review of the standards adopted by the Inter-American Sys- tem of Human Rights. Isser, D., S. Lubkemann, and S. N’Tow. 2009. Looking for Justice: Liberian Experiences with and Perceptions of Local Justice Options. Washington, DC: United States Institute of Peace. Kadwani D.A., and W. Gita, eds. 2009. Justice for the Poor: Perspectives on Accelerating Ac- cess. New Delhi: Oxford University Press. Karayanni, M. 2014. “The Extraterritorial Application of Access to Justice Rights: On the Avail- ability of Israeli Courts to Palestinian Plaintiffs.” Private International Law and Global Gover- nance. Oxford University Press. 217–18. Kaufmann, D., A. Kraay, and M. Mastruzzi. 2007. “Governance Matters VI: Governance Indica- tors for 1996–2006.” World Bank Policy Research Working Paper No. 4280. Kunesh, P. H. 2007. “Banishment as Cultural Justice in Contemporary Tribal Legal Systems.” New Mexico Law Review 37 (1): 85–145. Levchenko, A. A. 2007. “Institutional Quality and International Trade.” Review of Economic Stud- ies 74 (3): 791–819. Mack, K. 1995. “Alternative dispute resolution and access to justice for women.” Adelaide Law Review 17 (1): 123–146. Minow, M. 2022. “Access to justice.” American Journal of Law and Equality. Volume 2. 293–311. Nunn, N. 2007. “Relationship-Specificity, Incomplete Contracts, and the Pattern of Trade.” Quar- terly Journal of Economics 122 (2): 569–600. Office of the United Nations High Commissioner for Human Rights. 2005. “Mapping the Justice Sector.” Rule of Law Tools for Post-Conflict States. Office of the United Nations High Commissioner for Human Rights. 2006. “Monitoring Legal Systems.” Rule of Law Tools for Post-Conflict States. Prescott, J. 2017. Improving Access to Justice in State Courts with Platform Technology. Vand. L. Rev. 70: 1993–2050. Rhodes, D. L. 2005. Access to Justice. Oxford: Oxford University Press. Rodriguez, M. 2000. Empowering women: An assessment of legal aid under Ecuador’s judicial reform project. Shayo, M., and A. Zussman. 2011. “Judicial Ingroup Bias in the Shadow of Terrorism.” The Quar- terly Journal of Economics 126.3: 1447–1484. Shayo, M., and A. Zussman. 2017. “Conflict and the Persistence of Ethnic Bias.” American Eco- nomic Journal: Applied Economics 9.4: 137–165. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 47 Shcherbanyuk, Oksana. 2018. “Reform of the Competition Procedure for Judges in Ukraine.” European Journal of Law and Public Administration, Editura LUMEN 5 (2): 115–127, December. United Nations Security Council. 2004. “The rule of law and transitional justice in conflict and post-conflict societies.” Report of the Secretary General (S/2004/616). United Nations Security Council. 2013. “Measuring the effectiveness of the support provided by the United Nations system for the promotion of the rule of law in conflict and post-conflict situa- tions.” Report of the Secretary General (S/2013/341). USAID. 2014. ProJustice Program in the Democratic Republic of the Congo: Final Evaluation. World Bank Group. 2011. World Development Report 2011: Conflict, Security and Development. World Bank Group. 2018. Safety and Security at the Edges of the State: Local Regulation In Papua New Guinea’s Urban Settlements. World Bank Group. 2021. World Bank Engagement in Situations of Conflict: An Evaluation of FY10-20 Experience. Independent Evaluation Group. World Health Organization. 2017. “Fragile and conflict-affected states.” Health and WHO Coun- try Presence Profile. EQUITABLE GROWTH, FINANCE & INSTITUTIONS INSIGHT <<< 48