Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa Waleed Haider Malik and Clara Lahoud Maghani © 2023 The World Bank 1818 H Street NW Washington, D.C. 20433 Telephone: 202-473-1000 All rights reserved Printed and manufactured in Washington, D.C. This volume is a product of the staff of The World Bank. The findings, interpretations, and conclusions expressed in this paper are entirely those of the author(s) and should not be attributed in any manner to the World Bank, to its affiliated organizations, or to members of its Board of Executive Directors or the countries they represent. The World Bank does not guarantee the accuracy of the data included in this this publication and accepts no responsibility for any consequence of their use. The material in this publication is copyrighted. Copying and/ or transmitting portions or all of this work without permission may be a violation of applicable law. The World Bank encourages dissemination of its work and will normally grant permission to reproduce portions of the work promptly. Waleed Haider Malik, and Clara Lahoud Maghani November 2, 2023 Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa By Waleed Haider Malik and Clara Lahoud Maghani with1 1Hon. Justice Egbe Hillman, Hon. Justice Ntyam Mengue, Prof. Christian Zamo, Mr. Abel Bove (Chapter 2 - Cameroon), Former Vice President of the Federal Supreme Court Dr. Menberetsehai Tadesse, Prof. Mebratu Gebeyehu, Former President of the Federal Supreme Court Hon. Kemal Bedri (Chapter 3 - Ethiopia), Mr. Roberto Panzardi, Hon. Justice Julia Sarkodie-Mensah. Prof. Sonnia-Magba Bu-Buakei Jabbi and others (Chapter 4 - Sierra Leone), Ms. Rose Aiko (Chapter 5 Zanzibar), Mr. Artur Alik Lagrange, Ms. Paula Gonzalez (Chapter 7 - Gender and Marital Gap Analysis) Table of Contents Acknowledgments .................................................................................................................................. 6 Caveat ..................................................................................................................................................... 7 Executive Summary................................................................................................................................. 8 Chapter 1 - Introduction ....................................................................................................................... 11 Filling data gap .................................................................................................................................... 11 Root cause of underdevelopment............................................................................................................ 12 Comparison with other regions ............................................................................................................... 12 Formal versus traditional justice systems ................................................................................................ 14 Methodology ........................................................................................................................................ 17 References .......................................................................................................................................... 17 Chapter 2 - Cameroon ........................................................................................................................... 18 Introduction......................................................................................................................................... 18 Shortcomings....................................................................................................................................... 18 Institutional Framework, Judicial Structure, and Legal Framework .............................................................. 19 Official legal framework ......................................................................................................................... 20 Alternative dispute resolution mechanisms of justice................................................................................. 20 Survey Results ..................................................................................................................................... 21 Country Conclusion ............................................................................................................................... 24 Chapter 3 - Ethiopia .............................................................................................................................. 25 Introduction......................................................................................................................................... 25 Institutional Framework, Judicial Structure, Legal Framework .................................................................... 26 Legal framework .................................................................................................................................. 27 Survey Results ..................................................................................................................................... 28 Scope ................................................................................................................................................. 29 Results summary.................................................................................................................................. 29 Country Conclusion ............................................................................................................................... 33 Recommendations ................................................................................................................................ 33 Chapter 4 - Sierra Leone ....................................................................................................................... 34 Introduction......................................................................................................................................... 34 Institutional Framework and Judicial Structure ......................................................................................... 35 Legal Framework .................................................................................................................................. 36 Survey Results ..................................................................................................................................... 37 Country conclusion ............................................................................................................................... 39 Chapter 5 - Zanzibar.............................................................................................................................. 40 Introduction......................................................................................................................................... 40 Institutional Framework, Judicial Structure, Legal Framework .................................................................... 41 Survey Results ..................................................................................................................................... 41 Legal literacy and access to legal aid service ............................................................................................ 42 Country Conclusion ............................................................................................................................... 42 Improving the functioning of the justice system ....................................................................................... 42 Improving legal literacy and access to legal assistance services ................................................................. 43 Chapter 6 - Access to Justice Challenges: Cross-Country Comparison ................................................... 44 Introduction......................................................................................................................................... 44 Cross-Country Comparison on Barriers to Access Justice ........................................................................... 45 Evaluation of the Court System .............................................................................................................. 46 Barriers to Justice................................................................................................................................. 49 Core Barriers for Sub-Saharan Africa ...................................................................................................... 51 Chapter 7 - Gender and Marital Gaps in Judicial Services ...................................................................... 53 Introduction......................................................................................................................................... 53 Data and Method .................................................................................................................................. 53 Results................................................................................................................................................ 56 Conclusion ........................................................................................................................................... 60 Chapter 8 - Way Forward to Justice for All and Conclusions .................................................................. 61 Trust: The Foundation of Justice ............................................................................................................. 61 Reform Actions .................................................................................................................................... 62 Support for Alternatives to Courts .......................................................................................................... 66 Information Plays a Critical Role ............................................................................................................. 68 Court Costs Need to Fall ........................................................................................................................ 68 Well-funded legal aid guarantees citizen rights ......................................................................................... 68 Strong Institutions Lead the Way ........................................................................................................... 69 References .......................................................................................................................................... 70 Appendix A. Methodology of gender and marital status analysis ........................................................... 71 Appendix B. Questionnaire .................................................................................................................... 78 Appendix C. Comparative Analysis of Court Fee Systems ...................................................................... 82 Appendix D. Legal Aid Examples from Developed Countries .................................................................. 91 Acknowledgments The authors would like to thank The Chief Economist Office, Africa Region, under the leadership of Chief Economist Andrew Dabalen, for helping to ensure that this report became a reality, including Beatrice Berman, Vijdan Korman, Nora FitzGerald, and Kenneth Omondi. We would also like to express deep appreciation to Prof. Won Kidane for his review and guidance that helped us complete the book. We must also acknowledge our ongoing gratitude to the many who guided, commented, and contributed to the report over a period of time that was overshadowed by the COVID-19 pandemic. These include Markus Goldstein, Roberto Panzardi, Abel Bove, Cia Sjetnan, Elsa Araya, Former Chief Justice Mohamed Chande Othman Chande, Chief Justice Prof. Ibrahim Hamis Juma, Hon. Hussain Kattanga, Dr. Paul Kihwelo, Hon. Zahra Maruma, Berhanu Ayane, Lilit Petrosyan, Bryan Kelly, Mahnoor Malik, Mekonnen Firew, Vijdan Korman, Lywam Assefa, Andry Rasoanindrainy and several others. Finally, we would like to acknowledge the enormous background work that was leveraged to generate this report. This included household access to justice surveys in select countries to promote learning among stakeholders under the Human Rights Nordic Trust Fund, a team led by Roberto Panzardi, Abel Bove and Waleed Malik. In addition, we are grateful for the access to justice modules in Afrobarometer surveys conducted in collaboration with the State and Peace Building Fund, a team led by Roberto Panzardi and Waleed Malik and the regional justice analysis carried out as part of development of the Tanzania justice modernization project, a team led by Waleed Malik, Deborah Isser, Denis Biseko and Clara Maghani. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 6 Caveat The purpose of this book is to foster continued learning and dissemination of materials that support access to justice for Africans. This analysis of a decade of data gathering and knowledge building is building block toward a better future. Although the surveys, background reports and analysis are pre-pandemic, this data is significant and the findings useful to continue knowledge exchange on access to justice. Judicial reform and transparency continue to be growing challenge in Sub-Saharan Africa and beyond. The authors hope this work prompts further discussion. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 7 Executive Summary Limited access to justice is a root cause of Numerous factors complicate efforts to improve underdevelopment, social unrest, and conflict. access to justice in Sub-Saharan Africa (SSA). The Expanding access to all—and especially vulnerable nature of formal justice systems almost invariably groups including women, the young, small reflect the systems of the primary colonizers, business owners and the poor—is clearly either the United Kingdom or a continental paramount for a peaceful and prosperous European power. These coexist with entrenched continent. informal systems, largely based on more ancient traditional judicial practices. Sometimes this Justice means different things to different people, coexistence is peaceful, sometimes not. particularly the multiple actors who design and administer justice systems and affect the Modern Cameroon, for example, is a diverse outcomes.2 Elected leaders eager to respect country combining territories formerly controlled aspirations for a fair society with human rights and by the British and the French, featuring a hybrid accountable governance, for example, consider system of customary law, French-derived law, justice a public good. Judges, lawyers, and service British-derived law, and state-enacted laws. Yet, a providers view justice as a moral duty to guarantee steady series of reforms has brought the country fairness before the law. Business leaders look to close to realizing its dream of establishing a single courts to resolve contract disputes and keep legal system. transaction costs and risks low. In Ethiopia, among the oldest of countries, the Yet the voices of vulnerable groups, who are the overwhelming perception of the justice system was most impacted when justice fails, are not often positive compared with the other countries in the heard in discussions regarding justice systems. survey study. Yet the vulnerable face many This book aims to boost knowledge and improve barriers, the most onerous being prohibitive lawyer decision making by exploring the perspectives of costs, persistent corruption, long delays in legal what justice means to the most vulnerable people processes, and absent or limited access to and how to improve their access to justice. information on legal aid rights, and the justice system. The book draws upon research funded by the World Bank’s Nordic Trust Fund on justice access needs Sierra Leone continues to recover from protracted and barriers.3 The research involved over 3,000 civil war. As an example of justice issues, literate vulnerable women, men, and youth from women account for about 24 percent of the Cameroon, Ethiopia, Sierra Leone, and Zanzibar, population. These women are marginalized, an autonomous region in Tanzania.4 It also unlikely to know the law or understand legal explores, in a separate chapter, gender gaps in procedures, and unable to afford legal judicial needs in Cameroon, Ethiopia, Mauritania, representation. Sierra Leone, and Zanzibar, notably indicating that women are more prone to report a need for judicial In the semi-autonomous region of Zanzibar, services related to family and human rights’ legal survey respondents considered formal courts more grievances, and men more often for services difficult than social and religious courts. Yet related to property rights, business, and labor opinions were split about the accessibility of law issues. enforcement institutions versus courts. The book also draws on data from Afrobarometer, A common thread among country respondents is a pan-African, non-profit survey research network the perceived corruption and lack of trust in formal that conducts public attitude surveys on courts and a sense that justice is a privilege of the democracy, governance, economy, and society. rich to the detriment of the poor. Multiple barriers to access to justice explain this, including high 2 From a human rights perspective, UNDP (2005) defines access to justice as “…people’s ability to solve disputes and reach adequate remedies for grievances, using formal or traditional justice systems. The justice process has qualitative dimensions, and it should be in accordance with human rights principles and standards.” 3 The World Bank established the Nordic Trust Fund, with contributions from Denmark, Finland, Germany, Iceland, Norway, and Sweden, to promote human rights goals. 4 The research also collected information on Tanzania proper. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 8 costs, a lack of information, protracted delays in Numerous institutional challenges also hinder dispute settlement, high corruption while formal justice, compounded by a general navigating governmental systems, and weak or preference for customary or traditional systems, unaffordable transport to courts and other which are frequently closer, cheaper, and culturally institutions far from home. and linguistically more familiar. Justice Systems in Sub-Saharan Africa Effects of Colonial Period and Shari’a With few exceptions, African countries are former In countries with significant Muslim populations, colonies that secured independence roughly 60 the treatment of Shari’a courts was somewhat years ago. The European colonial powers did not different. These courts were often recognized as impose national governance structures on the part of the formal judiciary, but their jurisdiction colonies until the late 19th century. But they did so was limited to certain types of conflicts, or they in the Berlin Conference of 1884, dividing, only heard cases when the parties agreed to their occupying, or claiming territories covering nearly use (such as in Ethiopia, Kenya, and Nigeria).5 the entire continent and drawing the boundaries that would later mark the borders between Although the complexity of the interactions independent African states. These colonial between the civil, traditional, and religious judicial histories continue to shape legal and judicial systems may seem problematic, it can provide systems today. multiple prospective entry points and potential counterparts for reform projects. In Botswana, for All European colonizers relied on a system of example, the traditional or customary courts are indirect rule and left the management of purely fully integrated within the main judicial system and local affairs, including dispute resolution, in the rule on division of property, including matrimonial hands of traditional authorities (or those they property, while performing other functions.6 In selected for that role). This meant that for most Zambia, where the majority of the land is in rural indigenous citizens, the formal state judicial and peri-urban areas, customary courts help to system (along with many other state promote land administration.7 organizations) had little relevance. In urban centers, the state system prevailed, though For the most part, the influence of formal state smaller disputes involving only African parties were structures remains limited in SSA. Relative to handled by indigenous systems. Over time, population size, the region’s countries tend to have Africans began to train as lawyers either to minimal formal justice systems compared to other represent clients or to participate in the lower regions. Police forces remain small, and the ratio levels of the state system. of judges to inhabitants is usually about 1 to 100,000 (as opposed to 8.1 for Latin America and During the era of independence, judicial 15.2 for Western Europe).8 institutions introduced by the colonizing countries were generally retained by the new governments, The number of prosecutors is also low and public but with modifications. Some countries, defense is often nearly non-existent. While the particularly the former British colonies, tended to number of lawyers is gradually increasing as follow reforms adopted by their former colonizer in countries develop their own law schools, the their domestic courts. Efforts were also made to environment is still woefully inadequate to fill state deal with traditional systems, often by creating a positions and provide services to private clients. lower level of informal courts (such as the former Even in South Africa, in what may be considered a native courts introduced by the British), clarifying best-case scenario, only 17,000 attorneys serve a the roles of each judicial body, or even codifying population of 45 million. Malawi has just 77 traditional law so it could be used in ordinary court lawyers for 11 million people.9 practices. Most services are concentrated in urban areas, out of reach to millions of Africans. Yet despite 5 In Nigeria, however, there is a more recent trend for some states to adopt Shari’a as their official law. 6https://cms1.gov.bw/taxonomy/term/124#:~:text=The%20traditional%20or%20customary%20courts,been%20dissolved%20(decree%20nisi). 7Functions include the allocation and administration of land and the resolution of conflicts and disputes. https://pdf.usaid.gov/pdf_docs/PA00SVP9.pdf 8 Figures are from the World Bank, CEPEJ (2005) for Western Europe and from CEJA (2005) for Latin America. 9 Africa Justice Note and Guidelines, World Bank AFTPR Task Force, 2010, p. 8 Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 9 increasing urbanization, physical access to sector alternative dispute resolution mechanisms that can services remains limited and estimates in most relieve pressure on the formal justice sector. African countries suggest that as much as 85 Formal institutions are then responsible for percent of populations still rely on traditional or ensuring that the laws are implemented justly in religious justice systems.10 Most citizens, even coordination with traditional and alternative those not facing additional social and cultural forums and under the watchful eye of civil society. barriers because of their gender or other Civil society organizations advocate for the rights vulnerable status, must still contend with difficult of business and (often poor) individuals and work geographic, linguistic, financial, and procedural directly with clients to empower them to exercise barriers in accessing the formal judicial systems. their rights. Several countries are contending with these Given the importance of institutional enormous challenges by training paralegals, who strengthening, it is essential that rule of law work with the judiciary, prisons, police, and projects be carried out in appropriate ways that are traditional leaders. For example, the Paralegal tailored to local needs; failure to perform the Advisory Service Institute in Malawi works with necessary analysis before launching projects may prison officers to screen prisoners to identify those only lead to results that are of little consequence who are in prison unlawfully or to the local community. inappropriately11. Because of a shortage of lawyers in Sierra Leone, TIMAP for Justice In the following chapters, the legal systems of paralegals help women and other disadvantaged Cameroon, Ethiopia, Sierra Leone, and Zanzibar groups access justice.12 are examined to demonstrate the importance of healthy interaction among these agencies in Civil society organizations, working with the state promoting rule of law and strengthening the agencies of the justice sector, have also been institutional capacity of SSA countries. Each helping to meet the demand for legal assistance chapter presents the political context of the (particularly on family issues, sureties, land country, followed by an overview of the disputes, and criminal cases) from poor, rural- institutional framework, judicial structure, and based populations. In addition, the World Bank’s legal framework. The scope, results, and Gender and Law Program has done important work conclusions of the Nordic Trust Fund surveys to improve women’s access to justice in 13 SSA concludes each discussion. Finally, a cross-country countries. Furthermore, Women, Business and the comparison delves into the main barriers limiting Law Report of the World Bank documents global access to justice, with a brief conclusion and progress toward legal gender equality. It recommendations. showcases how countries decide to remove legal barriers for women and create the foundation for Given the call in the United Nations’ Sustainable the reform process. Development Goal (SDG) 16 to “access to justice for all,” the book stresses the importance of Calls from civil society to make justice more promoting greater knowledge among policymakers accessible for businesses and individuals alike have that can lead to more robust and fair judicial encouraged the development of traditional and systems. 10 Figures are from CEPEJ (2005) for Western Europe and from CEJA (2005) for Latin America. 11 https://acjr.org.za/ppja/english/countries/malawi 12 https://namati.org/network/organization/timapforjustice Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 10 Chapter 1 Introduction Substantial barriers still inhibit access to justice across Africa. Based on national surveys in 36 African countries, long delays, high costs, corruption, complex legal processes, and a lack of legal counsel are major obstacles, with vast differences between relatively good access in Botswana and dismal indicators emerging from places such as Sierra Leone. Afrobarometer Throughout SSA, authorities crafting justice development activities in the justice sector, and in policies seldom hear the voices of the vulnerable.13 general. Courts may be set up in a particular area Indeed, policymakers usually ignore the simply to please someone important, even though perspectives of ordinary people when formulating demand for such services is low, for example. policies and preparing development plans, Likewise, authorities may fail to hire sufficient according to the research conducted by public prosecutors to implement anti-corruption Afrobarometer, the pan-African, non-partisan measures or to prosecute organized crime research network. This exclusion has fueled a committed by the politically influential. pervasive lack of trust in public institutions, undermining societal development, peace, and Meanwhile, ordinary people and victims of crime harmony. bringing complaints against law and justice providers for unduly postponing trials or for These ordinary people believe the rich and the seeking bribes to move paperwork, and the like, politically powerful heavily influence the setting of are harassed and intimidated into silence. priorities and are the main beneficiaries of Filling data gap Sustainable Development Goal (SDG) 16, the To help fill a major data gap in views in justice promotion of peaceful and inclusive societies, issues, the Nordic Trust Fund (NTF) surveyed through proactive actions. The report also bring vulnerable groups, how they perceive justice, and attention to the voices of the vulnerable, and their the limitations and barriers they face in getting perceptions about how far from justice they feel. issues resolved and rights enforced. The initiative also aimed to promote learning among the key There are multiple actors who administer these agents of justice—especially the duty bearers such systems, affecting design and outcomes.14 Elected as judges and other policymakers—to build leaders who aspire to respect the aspirations of the ownership, enhance knowledge, and help reduce people and achieve a fair society with equal human resistance to change. It sought to help these duty rights and accountable governance, for example, bearers to analyze data, identify the serious consider justice a public good. Judges, lawyers, barriers to justice access, and outline actions that and service providers view justice as a moral duty are informed by international good practice, to to guarantee fairness before the law. Business address the obstacles. leaders frequently focus on contract disputes and keeping transaction costs and risks low. And The intention of this book, and its findings public-sector institutions view justice as the concerning serious barriers to justice, is to assist enforcement of regulations, including tax policies with the pursuit of justice on the continent and help and other revenue generation arrangements, and policymakers meet commitments under control over corruption. 13 For “vulnerable segments,” which the book defines as women, young people, small businesses, and poor people, access to justice (including rights’ protection) is paramount for a peaceful and prosperous Africa. The research behind the book deployed household surveys, individual in-depth interviews, and focus group discussions and consultations to gain the views of these groups. 14 From a human rights perspective, access to justice can be defined as “…people’s ability to solve disputes and reach adequate remedies [solutions] for grievances, using formal or traditional justice systems. The justice process has qualitative dimensions, and it should be in accordance with human rights principles and standards…” UNDP (2005). Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 11 divorce and inheritance matters destroy families. SSA citizens expect protection of their rights, The poor generally also face high costs and personal safety, and peace, and when systems administrative hurdles, compounding feelings of malfunction, citizens, especially the poor and exclusion and undermining confidence in the legal vulnerable women, bear the brunt. Too often, system. efforts to exercise rights or enforce contractual obligations run into legal and administrative In this context, when the rich and powerful are bottlenecks. Women are frequently subject to perceived to benefit from court delays, especially undue bias and discrimination in land-ownership when the poor are locked up awaiting trial, this disputes. People go unpunished for committing culture of impunity encourages lawlessness and domestic violence, and lengthy or even unresolved fuels crime. Root cause of underdevelopment Lack of access to justice is therefore, and perhaps 7 explores gender-related factors in need for not surprisingly, a root cause of justice services in Cameroon, Ethiopia, Mauritania, underdevelopment, social unrest, and conflict in Sierra Leone, and Zanzibar Africa. According to Acemoglu and Robinson (2012), justice system weakness undermines economic opportunities.15 This is because judicial There is often a critical disparity between the laws institutions are crucial to enabling investment. that are passed and the ability or willingness to Douglas North, in his book Institutions, enforce them. The World Development Report Institutional Change and Economic Performance, 2017 (World Bank 2017) on governance and the notes that lack of low-cost contract enforcement is law highlights this gap in many countries. The the “most important source of both historical report offers recommendations for addressing a stagnation and contemporary underdevelopment dearth of legal infrastructure and lack of capacity in the Third World” (North 1990). building, as well as other weaknesses that prevent access to justice in fragile situations and among Women’s access to justice, meanwhile, is a major vulnerable people. constraint on overall access, complicated in many parts of SSA by high domestic violence, Civil conflict can also be exacerbated by a lack of discrimination, and crime.16 Gender-based legal justice. Unrest in the Horn of Africa, the Great differences constrain women’s ability to make Lakes Region, northern Nigeria, and the Sahel are economic decisions in a variety of ways, with often perpetuated by injustice, poor accountability, far-reaching consequences for women’s access to terrorism, poverty, and exclusion of the vulnerable justice, according to World Bank (2015). Chapter from the benefits of society. Comparison with other regions Judiciaries in SSA rank lower than other regions, South Asia Region (2.8) (figure 1). Poor access to according to the World Bank’s Country Policy and justice services, alongside the corrosive effects of Institutional Assessment scores, a key indicator for corruption, helps explain this underperformance. allocating concessional financial assistance to low- income and fragile countries in Africa.17 For SSA policymakers need to assess weaknesses and example, with a score of 2.7 on property rights and institute policies that can bring justice services rule-based governance—which includes the closer to the people, as well as to radically combat performance of rule of law and justice entities as a subset—the region ranks lower than Latin America and the Caribbean (3.2), East Asia and Pacific (3.1), Europe and Central Asia (2.9), and the 15 Weaknesses in law and justice undermine the broad distribution of political rights that are essential for people to hold governments accountable and make it responsive to citizens, and that enable them to take advantage of economic opportunities (Acemoglu and Robinson 2012). 16 World Bank (2008) defines crime as an antisocial act that violates a law. Violence is intentional use of physical force, threatened or actual, that can lead to injury, death, psychological harm, maldevelopment, or deprivation. This undermines the security of citizens and violates the fundamental right to live and develop in a safe environment (World Bank 2008). 17 World Bank. CPIA Africa. Data. http://datatopics.worldbank.org/cpia/. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 12 corruption (see figure 2).18 Critically, this requires target interventions to the most vulnerable and robust data and evidence-based knowledge other strategic areas. sharing so that policy decision making can better Figure 1 l Policies and Institutions, Sub-Saharan Africa versus Other Regions Property Rights & Rule-based Govern. Quality of Budget. & Finan. Mgt. Effic.of Revenue Mobil. Quality of Public Admin. Transpar., Account. & Corrup.in Pub. Sec. 3.8 3.7 3.6 3.5 3.4 3.4 3.4 3.4 3.3 3.2 3.2 3.2 3.1 3.1 3.1 3.1 3.1 3.1 3.0 3.0 2.9 2.9 2.9 2.8 2.8 2.7 2.7 2.7 2.3 2.3 AFR EAP ECA LAC MNA SAR Source: Note: Figure 2 l Relationship between Rule of Law and Control of Corruption 1 LCA VCT BTN CPV DMA RWA .5 VUT GRD LSO WSM KIR FSM 0 GHA MHL TON TUV LKA STP SEN DJI SLB MDV -.5 ZMB BFA MDG MWI BOL MOZ ETHKSV VNM MNG LBR NER GMB ERI GUY COM NPL MLI MDA MRT TZA NIC BEN CIV HND SLE TMP CAF BGD -1 TGO PAK KEN UGA LAO PNG GIN KGZ KHM TJK COG CMR NGA GNB HTIUZB TCD YEM BDI MMR ZWE ZAR SDN -1.5 AFG -2 -1 0 1 Rule of Law (2010-14avg) Sub Saharan Africa Countries Fitted values Non-Sub Saharan Africa Countries Fitted values Source: Note: World Governance Indicators for 76 IDA countries. 18 At the recent global Anti-Corruption Summit in London, former World Bank President Jim Yong Kim outlined the notion of “radical transparency” to reduce or eliminate corruption. . Many countries committed to expose corruption within public sectors, punish the corrupt, and support those suffering its ill effects. They agreed to review public procurement procedures to increase transparency. They committed to make the exchange of tax information easier to avoid tax-haven problems and pledged to strengthen institutions of accountability in all branches of the state and work all parties to accelerate implementation of the UN Convention against Corruption (Government of the United Kingdom). Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 13 Data for policy decisions is generally weak or disciplinary team with a minimum of one judge, lagging in SSA’s public and economic sectors,19 and one statistician, and one institutional expert per even more deficient for justice sector institutions.20 country. The arrangement built in-house capacity, This is especially true of data that reveals the basic and encouraged ownership and follow-through on views of citizens (demand-side data) on recommendations along with stakeholders.22 institutional performance, access to justice services through the courts and other entities such This book examines the findings of the project case as the police, prosecution services, bar studies to promote better decision making that can associations, and so on. improve access to justice. Budget shortfalls, complex institutional As noted, Africa’s complex justice sector closely arrangements, privacy concerns, legal deficiencies, reflects the colonial legacy, even after decades of and the simple lack of attention to citizens’ independence. In SSA, 18 countries follow the civil perspectives are some of the main reasons behind law legal tradition of the former continental these gaps. Citizens, especially vulnerable groups, European colonial governments, 12 the common are often unaware of or unable to pay court fee or, law tradition of the United Kingdom, and the rest lawyer fees. Many don’t know where to file a case, mixed common and civil law or Roman-Dutch law or who does what in the judicial sector. traditions. Institutional and administrative data on the supply The countries of the Nordic Trust Fund project side are not readily available or produced in many reflect hybrids (Cameroon), civil law traditions jurisdictions.21 This includes information such as (Ethiopia), common law (Sierra Leone), and the number of judges and staff in the formal court common law (Zanzibar) systems. The countries system, court case backlogs, low clearance rates, also vary by economic size, political system, and protracted procedures. poverty rate, and urban-rural distribution of population. In view of these multiple considerations, the Nordic Trust Fund project’s research set up a multi- Formal versus traditional justice systems Formal courts and traditional systems coexist, and each has a unique role and function. But the formal Many citizens resort to formal mechanisms for systems lack capacity, and are underutilized, even financial matters involving people from different though the sector typically see formal justice tribes and communities, or are related to land or mechanisms as critical for long-term economic and family inheritance. Therefore public-sector social development, which includes meeting institutions have a key role to play in resolving and international human rights obligations. By enforcing awards and agreements. contrast, about 82 percent of people in SSA prefer traditional systems for community disputes, rather The positive aspects of both formal and informal than formal courts, according to the Afrobarometer systems need strengthening to promote peace and Round 5 survey. This typically mirrors the harmony, build respect for tradition and culture, proportion of formal and informal economies in and enforce contracts and equal rule of law many SSA countries. enforcement. Governments should adopt 19 SSA countries periodically prepare economic surveys, poverty reports, and household expenditure and consumption analyses. But their frequency and quality remain inadequate for long-term policy making. And SDGs call for scaling up data generation for decision making based on solid evidence and underpinning reforms. Efforts need to include data about the formal judicial system and related entities to strengthen rule of law and contract enforcement. 20 Performance measurement typically entails identifying inputs and outputs while accounting for changes in quality. Any analysis of value for money requires assigning a price to outputs and inputs. But the characteristics inherent to a judicial system make the measurement of its performance complex and difficult. The “output” of a justice system, for example, is an intangible, indivisible service, with a potentially enormous externality value that is difficult to compare with its “inputs” (Malik 2007). 21 Good examples in other regions include the Commission for the Efficiency of Justice report in Europe and the Latinobarometor report in Latin America. These collect and disseminate significant supply and demand-side data for justice sector policy making. The World Bank/European Union Business Environment and Enterprise Performance Survey and the Doing Business reports are likewise offer useful repositories of justice sector statistics and patterns and perceptions of business court users. 22 The action research team, supported by a technical team, offers training to leaders, guides them in the development of survey instruments, helps supervise the household survey team comprised of enumerators and data analysts, carries out data analysis, and prepares research findings (see the methodology section). Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 14 measures that encourage better synergy and closely tied to the economic development priorities accommodation of human rights principles and of local and international investment and the norms for citizens when they access justice in protection of human rights and principles.23 informal or formal systems. Indeed, for long-term economic development The book focuses on formal court system users and priorities, the World Bank’s World Development explores options for expanding access to justice for Report 2017 on Governance and the Law calls for vulnerable groups. This is because formal closing gaps in the institutional performance of adjudication and conflict resolution have a distinct formal law and justice. complementary role in society and are more Figure 3 l Legal and Judicial Issues Reported by Vulnerable Households in Sub-Saharan Africa Abuse of power including corruption Unlawful arrest and detention Child labor Commercial sexual exploitation Trafficking (women and children) Corporal punishment (home and school) Bullying Sexual harrasment Sexual abuse (rape and abduction) Community level physical violence Domestic violence Business matters Property (land and housing) Damages and other monetary claims Labor Issues Contract Inheritance Child maintenance and custody Divorce and domestic dispute 0.0 10.0 20.0 30.0 40.0 50.0 60.0 Percent Sierra Leone Ethiopia Cameroon Source: NTF surveys reported in the book 23Traditional justice systems are sometimes seen as biased against women and the poor, as tribunal practices and traditions may be counter to modern legal standards of equal protection and due process. Some traditional systems assign less weight to the testimony of unmarried women or people of different tribes, for example. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 15 As for barriers, vulnerable households perceive these as the various barriers and the top-seven most serious barriers in accessing formal courts (table 1 and figure 4 respectively and figure 5): Table 1 l Barriers Identified in Cameroon, Ethiopia, and Sierra Leone Type of Barrier Cameroon Ethiopia Sierra Leone Access to legal aid 51.1 56.9 62.6 Complex procedure 47.6 36.2 46.7 Corruption 83.8 66.6 67.1 Cultural/language 43 12.3 37.4 Discrimination 62.3 25.7 39.6 Distance to courts 23 18.4 55.8 Expenses—Courts 72.3 38.8 67.4 Expenses—Lawyers 73.7 70.2 72.2 Incompetence 44.3 38.8 44.6 Lack of Information 53.2 55.1 62.8 Lack of Trust 76.7 37.2 52 Poor quality of outcome 62.9 37.3 41.7 Time 72.3 58.8 66.2 Source: NTF surveys reported in the book Figure 4 l Top Seven Barriers to Accessing Justice in Sub-Saharan Africa 90.0 80.0 70.0 60.0 50.0 40.0 30.0 20.0 10.0 0.0 Corruption Lack of trust Expenses - Expenses - Time Lack of Access to Lawyer Courts information legal aid Cameroon Ethiopia Sierra Leone Source: NTF surveys reported in the book Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 16 Information on the role and function of the courts policy and better capture and incorporate the views and other justice sector entities, their importance of citizens in long-term policy. in social and economic development, and how to access the court system and offer feedback on Data collection and dissemination through mobile performance is essential. For policymakers, phones could be a good way to proceed. The World enhanced national and regional data is needed Bank’s “Listening to Africa” project, which through periodic research and data generation interviews citizens, could also be a strong model similar to household data reports on access to for replication and extension on the continent to justice. This would better inform justice sector collect and disseminate demand and supply-side data gaps of the courts and ancillary institutions. Methodology The action research for each country involved a interviews, and consultations with representatives quantitative study with a mix of qualitative of vulnerable groups and key stakeholder research methods. The quantitative and central institutions. aspect of the study involved surveys of perceptions and experiences of households and court users to The research involved a review of the literature generate statistical data, reflecting perceptions and documentary analysis to gather qualitative and voices of the vulnerable on various issues of and quantitative information from secondary access to justice. The qualitative feature of the sources, such as prior studies (published and study aims to substantiate and elaborate unpublished), court databases and proceedings, quantitative findings and aspects of the study not project performance and evaluation reports, and covered through quantitative methods. Methods legal and policy documents. include focus group discussions, key informant References Acemoglu, Daron, and James Robinson. 2012. Why Nations Fail: The Origins of Power, Prosperity, and Poverty. Crown Business: New York. African Union. 2014. Windhoek Declaration: Silencing the Guns – Terrorism, Mediation and Armed Groups.” Press release. https://african-union.africa-newsroom.com/press/windhoek-declaration-silencing-the-guns-- terrorism-mediation-and-armed-groups. Malik, Waleed. 2007. “Judiciary-Led Reforms in Singapore.” Washington, DC: World Bank. McKinsey & Company. 2007. “Wom Matter: Gender Diversity, A Corporate Performance Driver.” McKinsey & Company, New York. North, Douglas. 1990. Institutions, Institutional Change, and Economic Performance. United Nations Development Programme (UNDP). 2005. World Bank. 2008. “Crime, Violence and Development – Scaling Up Bank Impact Draft.” World Bank. 2015. “Women, Business and the Law 2016: Getting to Equal.” World Bank. 2017. World Development Report 2017: Governance and the Law. Washington, DC: World Bank. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 17 Chapter 2 Cameroon Less than 5 percent of the population in Yaoundé, the capital, has confidence in the quality of judicial services. Introduction French Cameroun gained independence1960, has aimed to create an integrated legal system and followed by reunification in 1961, uniting British this dream has almost been realized. Single codes Southern Cameroon and French Cameroun to form are now in force in various domains (criminal law a federal republic. Cameroon did not discard laws and criminal procedure, labour law, and land law). inherited from the colonial period. Indeed, A common business law is being elaborated under successive constitutions kept the laws of colonial the aegis of Organisation for the Harmonization of origin in force until expressly or implicitly repealed Business Law in Africa, Economic and Monetary by local legislation.24 Community of Central Africa, and the Conférence Inter-Africaine des Marchés de L’Assurance.26 Part The practical effect of this has been the of family law is also under a single law, with civil preservation and interplay of rules of customary procedure, contract law, tort law, and part of law−French-derived civil law, British-derived family law still to be unified.27 common law, and, mainly, state-enacted laws.25 International treaties ratified by the country are As reforms proceed, the distinction marking the also integral to the law of the land, according to country’s judicial system will fall no more between article 45 of the 1996 constitution. civil law and common law, but instead between modern law and customary law. Yet things have continued to change in the intervening years. A continuous reform program Shortcomings Nonetheless, the judicial system faces registries are overcrowded, and office equipment institutional, human, and material constraints. In is often obsolete, this latter factor is one reason for the former, for example, the Supreme Court was long delays in court decisions. not reorganized as called for in the 1996 constitution. Human resources, magistrates, court Broadly speaking, based on the results of the clerks, and qualified staff remain in short supply, Nordic Trust Fund survey, numerous respondents working conditions are poor, and salaries low. And acknowledged the reforms made to improve access the lawyers, bailiffs, and solicitors that do exist are to justice in the country, including to increase court often considered dishonest or otherwise non- staff, build new court buildings, raise salaries, compliant with substantive and procedural rules. ensure court staff training, and modernize Among the material constraints, courts lack equipment. Yet only 33.6 percent of households premises and appropriate storage for archive files, believed that access to justice had improved. 24 Constitution of Cameroon, January 18, 1996. 25 Including the constitution, laws passed by the legislature, decrees and ordinances by the head of state, subsidiary legislation as orders by ministers, and local subsidiary legislation as by-laws, orders, and rules made by regional governors, senior divisional officers, and local councils for their own areas of authority. 26 For insurance law. 27 But a single, family law code is almost ready at the Ministry of Family and Women’s Empowerment. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 18 Box 1 Key Findings ▪ Many respondents acknowledged efforts to improve access to justice. Despite these efforts, only 33.6 percent of households believed that it had improved: 60 percent of men and 54 percent of women felt services were difficult or very difficult to access. ▪ Traditional courts were considered easy to access by 40 percent of men and about 32 percent of women. And Cameroonians did not have confidence in the quality of the services provided, while 70.6 percent of court users said the system favored the rich and powerful. ▪ Several hurdles bar access: 55 percent primarily pinpoint the lack of information and 57 percent of the youth and 58 percent of women identify the absence or limited availability of legal aid services as major barriers; 74 percent of young people and 73.5 percent of women considered the lack of adequate information a serious barrier. Corruption (up to 86.3 percent), discrimination by judicial officials (64.9 percent), poor decisions (65.7 percent) and lack of confidence in the judiciary (78 percent) were seen as barriers. ▪ Awareness of national laws is low: 44.8 percent of women and 35.8 percent of men believed that their knowledge of their rights was low; 69.4 percent of women and 61.7 percent of men said their knowledge of the judiciary was low. ▪ The Cameroonian Judiciary suffers from lack of trust and confidence in fairness and effectiveness. As an alternative to the formal system, 24 percent of interviewees in Yaoundé systematically resort to alternate judicial mechanisms (conciliation, mediation, transaction). ▪ One solution could be the establishment of fast-track procedures with lower court fees and self-representation options, coupled with effective citizen legal education, legal aid, mobile services that are offered closer to the communities, and the creation of small claims courts. Institutional Framework, Judicial Structure, and Legal Framework Organization of the judiciary is regulated by the customary law courts include the Grade I Tribunals constitution and the law. It is comprised of courts (Tribunaux de Premier Degré) and Customary of ordinary jurisdiction and courts with specialized Tribunals (Tribunaux Coutumiers).29 jurisdiction. The High Court tries all felonies (except The courts of ordinary jurisdiction include embezzlements exceeding 50 million CFA francs, customary law courts, courts of first instance, high which are tried by the Special Criminal Tribunal). courts, courts of appeal and the Supreme Court. It also tries civil, commercial, or labor suits The last two have appellate jurisdiction and the involving more than 10 million CFA francs. The others original jurisdiction. The 1972 Ordinance High Court has jurisdiction over mandamus, and the 2006 Law on judicial organization prohibition, and habeas corpus, restraining excess maintained the customary law courts of both West and abuses by public officials. Cameroon and East Cameroon,28 which operate as they always have. The Court of Appeal is located within the main town of each of Cameroon’s 10 regions.30 Each Court of In the English-speaking regions, the customary law Appeal is comprised of a president, one or more courts include the Customary Courts and Alkali vice-presidents, one or more judges, one registrar- Courts. In the French-speaking regions, those in-chief. The Supreme Court, with its seat in 28 See section 31: “the organization of traditional courts and the procedure to follow before them, with the exception of the criminal jurisdiction of customary and alkali courts shall, for the time being, be maintained.” 29 See Decree N° 69/DF/544 of December 19, 1969 for the judicial organization and the procedure before customary law courts in East Cameroon. 30 See section 19 of the law of 2006. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 19 Yaoundé, is the highest state court in judicial, courts are in accordance with the law, thereby administrative, and audit matters. The Supreme seeing to the unity of case-law. Court aims to ensure that judgments of the lower Official legal framework According to Article 45 of the 1996 constitution, provide the relevant treaty monitoring body to international treaties the country has ratified are receive and issue a decision on the merits of integral to the law of the land, and those treaties individual complaints upon consent of the state.31 are superior to statutory laws. Cameroon is a party Cameroon has accepted the jurisdiction of those to the Convention on the Elimination of treaty monitoring bodies. Some of them have Discrimination against Women 1979 (ratified in received and issued several complaints coming 1994), the Protocol to the African Charter on from Cameroonians, especially the United Nations Human and Peoples’ Rights on the Rights of Human Rights Committee32 and the African Women in Africa (the Maputo Protocol of 2009), Commission on Human and Peoples’ rights. the Convention on the Rights of the Child 1989 (ratified 1993) and the Optional Protocol to the However, the legal protection of women and Rights of the Child on the Involvement of Children children is not confined to constitutional in Armed Conflicts, which are the basic laws for the provisions. The issue has also been given much legal protection of women and children, attention in continuous legislative reform, among respectively. the most important of these laws being the Civil Code, the Penal Code, the Labour code, Land Law, Five of the core UN human rights treaties and the and Electoral Laws. African Charter on Human and Peoples’ Rights Alternative dispute resolution mechanisms of justice These mechanisms consist of fact finding and require the intervention of the commission, which mutual agreement using such methods as first tries mediation to solve the alleged problems. mediation, conciliation, and arbitration. Many of Conciliation is a voluntary system of mediation the mechanisms are used informally, although the based on negotiation between two or more parties Cameroonian legal system recognizes formalized for the amicable settlement of their dispute. mechanisms. Mediation is authorized in minor Conciliation is provided per the Civil Procedure cases by traditional rulers. Indeed, in rural areas, Code and the Labour Code. Article 3 of the Civil most disputes are still resolved through this Procedure Code, in force in the French-speaking mechanism. Churches also sometimes mediate. regions, makes conciliation advisable in civil and commercial matters (except in divorce).33 In urban areas, mediation is common in the Ministry of Social Affairs Services and in the Section 139 of the Labour Code of 1992 makes it Ministry of Women’s Empowerment Services, compulsory before any judicial procedure, and the where thousands of family or marital conflicts are Supreme Court has often reiterated the solved each year. Some institutions, such as the compulsory nature of conciliation in labour National Commission on Human Rights and disputes.34 In labor law, conciliation is organized Freedoms, also experiment with mediation. When not before a judge, but before a civil servant, the a citizen suffers a breach of human rights, he can Labour Inspector. 31 These treaties include the International Convention on the Elimination of All Forms of Racial Discrimination, International Covenant on Civil and Political Rights, Convention on the Elimination of Discrimination against Women, Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment is an international, Convention on the Rights of Persons with Disabilities. 32 The last being the Ebenezer Derek Mbongo Akwanga case (Communication No. 1813/2009 of 20 June 2008). 33 English translation: “(1) All proceedings are exempted from the preliminary conciliation. (2) Nevertheless, in all cases, the parties may agree to appear voluntarily for conciliation before the competent judge. The plaintiff may also summon the defendant in conciliation by observing the time limits set out in articles 14 and 15. (3) The judge may, at any stage of the proceedings, attempt to conciliate the parties who may be assisted by their lawyers”. 34 See, C.S., arrêt N° 60, 20 févr.1968, Bull. p. 2114/. English translation: “That the labor courts cannot, without exceeding their powers, take up a dispute which has not been submitted to the conciliation attempt beforehand, even if the head of the application who has not been submitted to the conciliation of the labor inspector was attached to other heads of application, which were actually submitted to him.” Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 20 Survey Results Scope The research conducted in the cities of Yaoundé urban area, using the “reasoned choices” method and Douala to evaluate access to justice and at various stages. promote the voices and empowerment of vulnerable groups, particularly women and young In addition, the survey selected samples of 120 people, focused on three major activities. These important stakeholders and 60 users in accordance included a literature review of the dynamics of with the members of the Supreme Court and the judicial institutions, laws and policies on human World Bank. The distribution of these samples was rights in Cameroon, as well as a quantitative data made based on two criteria. The first criterion collection from households, from users of legal accounted for the categorization of justice services, and from key players of the Cameroonian stakeholders, divided into the four following judiciary system. It also included collection of groups: qualitative data through focus group discussions with service providers of legal services ▪ Judges, prosecutors, others involved in law (magistrates and court clerks), petitioners of legal enforcement, and lawyers services who are traders and some nongovernment ▪ Judicial officers (notaries and bailiffs) organizations whose daily activities bring them in ▪ Government institutions (particularly the contact with the system of justice. National Commission of Human Rights and Freedoms, the national anti-corruption The quantitative data collection phase included commission, Agence Nationale de questionnaires to households and users of legal Investigation Financiere and Consupe) services to collect statistical data on their ▪ Judicial police officers perceptions of various themes in access justice through the household survey of 1,200 individuals. The second criterion considered the type of To ensure broad dispersion of this sample in jurisdiction available in Yaoundé, particularly the Yaoundé, it was distributed in the subdivisions of Supreme Court, the Court of Appeal, the High the Mfoundi Department, which includes the capital Court, and the Court of First Instance. Results summary After processing data, a final sample of 1,207 Among key stakeholders, 25.86 percent were people was obtained, 51 percent women 49 judges or prosecutors, 6.90 percent worked in percent men. About 81 percent were French government institutions (National Commission of speakers and the rest were English-speaking. By Human Rights and Freedoms, National Anti- focusing on the age of the interviewees, young Corruption Commission, Agence Nationale de people, under 35, accounted for almost 65 percent Investigation Financiere, Consupe), 18.86 percent of the sample, with the remainder people 35 years for judicial officers (notaries and bailiffs), 25.86 or older. People were mostly single (45.07 percent for lawyers, and 22.41 percent for judicial percent), married and monogamous (31.65 police officers. These key players were 68.10 percent), or in consensual union (11.60 percent). percent men and 31.90 percent women. In education, most of the sample had a secondary school level of education (49.38 percent, or 25.77 Among the men, 21.52 percent were judges and percent for the first cycle and 23.61 percent for prosecutors, 8.86 percent worked in government high school) or higher education (36.87 percent). institutions, 15.19 percent were judicial officers, 26.58 percent were lawyers, and 27.85 percent Forty-five percent of users interviewed found were judicial police officers. themselves in court for social issues, 30 percent for civil matters, and 16.67 percent for criminal Among women, 35.14 percent were judges and matters. Some differences were observed between prosecutors, 2.70 percent worked in government men and women, civil matters constituted 41.94 institutions, 27.03 percent were judicial officers, percent of cases for men (41.94 percent), and 24.32 percent were lawyers, and 10.81 percent cases related to social disputes were 68.97 percent judicial police officers. of cases for women. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 21 Needs related to domestic, inheritance and percent overall), and 15 to 25 years (15 for men, succession disputes— In Yaoundé, the need for 23 for women, 18.56 percent overall). justice in domestic disputes were weakly identified during the survey, only 28.25 percent of cases The household survey focused on the most (that is 341 out of 1,207 cases). Overall, men recurrent types of sexual abuse, showing that appear to have been those expressing their need 69.15 percent related to rape. The survey revealed for justice in this area (53.67 percent), especially that 32.75 percent of the cases of sexual those aged 25 to 45. In matters of inheritance and harassment in Yaoundé occurred in church and succession, women are relatively more that, overall, those affected most by this represented among those for whom this need for phenomenon are people aged 25–35 (52.05 justice is sought, once more aged 25 to 45 (at percent of cases). Sexual harassment in 35.27 percent for women and 34.95 percent for educational and workplace settings was reported men). by 28.07 percent and 18.71 percent of respondents, respectively. About 42.72 percent of domestic violence cases are reported by women. Women reported about . Responses from key players in the justice system Among those involved in justice in Yaoundé, only show that many of them have received cases 14.66 percent of the stakeholders said they had related to sexual abuse and sexual harassment, never been consulted on issues related to domestic while victims of sexual exploitation for commercial disputes. Those contacted most were judges and purposes seldom speak about it. In fact, while prosecutors, at 86.66 percent, saying they had 45.69 percent of key players say they infrequently been contacted at least on a regular basis. had to deal with sexual abuse, they are 61.20 percent (and 72.42 percent respectively) likely to In light of international commitments for the emphasize that it is at best rare that cases of protection of children from the many ills they face, sexual harassment (and respectively cases of particularly given global commitments, special sexual exploitation) were presented to them. attention is given to the abuse of children in Cameroon, mainly in Yaoundé. It appears that Among the most important needs of justice there is a lower percentage of trafficking of identified in Yaoundé are those related to property vulnerable people and child labor, since 74 (6.13 rights, for which 394 cases were identified (230 for percent) and 192 (15.91 percent) were identified men and 164 for women). Overall, 43.91 percent for both cases in the capital. However, it is of cases are reported by individuals 25 to 35 years important to note that this finding may also reflect old, 26.14 percent 35–45, and the remaining in the low degree to which victims of such other age brackets. Whereas 364 cases of phenomena report abuse and mistreatment. contract-related problems were reported 350 cases made claims for damages, interest, and Regarding issues related to child support or child other receivables, 330 on issues related to social custody, 317 people expressed the need for justice disputes, and 214 cases involved disputes over (26.26 percent of the sample), 55 of them female. business licenses, supplies, and taxes. In most cases, this need is expressed by singles (20.82 percent for men and 20.19 percent for Among the key players working in the justice women) and for monogamously married sector, 87.07 percent said that most disputes they individuals (12.30 percent for men and 14.51 aimed to resolve related to contracts and 89.66 percent for women). As for punishment at home percent about social disputes. and in school, the household survey shows that this phenomenon is a concern for people in The most vulnerable groups, women, youth, and Yaoundé and Cameroon in general. the poor, also appear to be primary targets of corruption, abuse of power, and defamation. With Needs related to sexual abuse —Vulnerability to 646 cases of corruption (that is 53.52 percent of sexual abuse is a growing concern in Cameroon the sample) reported by interviewees in Yaoundé, and the international community as well. The several unlawful arrest and detention cases (460 household survey showed that 13.34 percent (161 or 38.11 percent), abuse of power (547 cases, cases) of those interviewed reported that they had 45.32 percent) and defamation (540 cases, 44.74 been sexually abused. The high prevalence of percent) were also identified during this survey. sexual abuse is obviously grossly underestimated People aged 25 to 35 years are the most concerned given that the majority of victims, out of shame or about these issues. fear of retribution, do not come forward. Of these cases, 62.73 percent were reported expressed by The user survey revealed that 66.67 percent of women, with ages 25 to 35 the most exposed to respondents experienced problems related to sexual abuse (about 46 percent), followed by 35 to slander, while 61.67 percent complained of 45 years (27 for men, 22 for women, that is, 23.61 problems with corruption; 53.33 percent were Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 22 victims of abuse of power, and 33.33 percent discriminatory practices by justice officials are a experienced illegal arrest and detention. barrier. More than half of those interviewed (over 60 Similarly, contrary to the belief of most lawyers percent of men and 54 percent of women) (73.33 percent), only 46.67 percent of law considered formal justice mechanisms difficult or professionals (judges, prosecutors), 37.50 percent very difficult to access. Among users of justice of institutions, 18.18 percent of judicial officers services, 45 percent said that access to judicial and 7.69 percent of judicial police officers consider institutions is difficult, against 40 percent who felt cultural barriers a barrier to access to justice. that access is moderate and 15 percent who found it easy. The field survey of the key players of While the household survey points out that the cost justice revealed that 4.31 percent found access to of services and legal proceedings is a serious jurisdictions of ordinary law very difficult, 20.69 barrier to access to justice in Cameroon, the user percent difficult, 18.97 percent moderate, 35.34 survey is a bit more specific. Clearly, many percent easy, and 20.69 percent very easy. individuals—80 percent of users (87.09 percent of men and 72.41 percent of women)—said that While 64 percent of law professionals believe that lawyers and bailiffs are expensive. Among more access to administrative courts is easy, 50 percent than half of users, emotional costs would rank first of government institutions and 50 percent of (70 percent of respondents), followed by costs of judicial officers think such access is moderate. bribes (68.33 percent), costs related to legal Meanwhile, most lawyers (56.67 percent) do not proceedings (60 percent), the opportunity cost of think that access is very difficult or difficult. As for procedures (51.67 percent), and costs related to traditional courts, they are very easy to access for transportation (50 percent). But despite the high 43.96 percent of justice stakeholders interviewed, cost of justice services, over 50 percent of that is, for 33.33 percent of lawyers, 38.40 percent respondents plan to reuse the same judicial of judicial police officers, and a little over 96 service. percent of judges and prosecutors. In general, it is accepted that traditional or The protection and promotion of civic, political, customary justice is a way of increasing access to economic, and social rights need to be improved in justice for populations marginalized by poverty, Cameroon and it is important to assess barriers to ethnicity, residence, or other factors. The justice, including access costs and legal aid for all household survey shows that about 24 percent of segments of the population, mainly for the most respondents in Yaoundé using it. Among those, vulnerable. women accounted for 53.82 percent men for 46.18 percent, less than people age under 35 years (60 A little over 55 percent of respondents agree that percent). Discrimination by staff and difficulties this information deficit is a problem, and 57 implementing the decisions of these alternate percent of young people and 58 percent of women justice mechanisms constitute, for the majority in confirm that the absence or limited availability of Yaoundé (55.75 percent and 53.92 percent of the legal aid services constitutes is a serious obstacle population, respectively for each of the two to justice. reasons) are serious barriers to wider use. The household survey shows that the complexity Most respondents in Yaoundé feel that justice is of the legal process is a serious barrier to more not truly impartial and that it favors the rich and than 50 percent of respondents, where 74 percent powerful at the expense of less fortunate of young people and 73.48 percent of women individuals. In fact, 84 percent of women and 85 consider that the length of the process and time percent of men think that Cameroon’s judiciary required to make a court judgment bar access system favors the rich and powerful. Similarly, justice. The prevalence of corruption (86.27 76.79 percent of people aged 15 to 25, 85.82 percent) and discrimination by justice officials percent aged 25 to 35, 84.91 percent aged 35 to (64.89 percent)—by inducing poor decisions 45, and 84.91 percent of individuals older than 45 (65.71 percent) and therefore a lack of confidence think the justice system serves the rich. Court in the Cameroonian justice (78 percent)—are users also agree with this negative assessment of serious barriers of access to justice in Yaoundé. fairness (70.59 percent). The ratings of the same elements by stakeholders When questioned about equity and fairness, 28.45 appears more disparate. Very few judicial police percent of key players in the system agree that officers (7.69 percent), government institutions justice benefits the rich, with lawyers, at 70 (12.50 percent), and judicial officers (13.64 percent, at least agreeing with this statement. percent) see discrimination by officials as a barrier Over 30 percent of judiciary police officers also to access to justice. In sharp contrast, judges, believe that the judiciary system favors the prosecutors, and lawyers mostly believe that wealthy. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 23 Less than 5 percent of respondents in Yaoundé not know their rights and do not have sufficient believes the justice system offers quality services. information about existing laws. Likewise, when asked Indeed, a high percentage that says the Cameroon’s about the operation of the judiciary system, 69.44 justice has never offered quality services: 39.54 percent of women and 61.68 percent of men said their percent of women and 35.92 percent of men and knowledge is low. differs as well depending on the age group and level of education. Regardless of the age group, over 67 Up to 81.03 percent of key players in the legal system percent of those interviewed in Yaoundé believed the recognized that legal information is not available at judiciary system had never rendered quality services. the community level, with government institutions and judicial police officers much more severe on this Access to justice also depends on the information issue (87.50 percent and 92.31 percent, available to individuals, not only about their rights, respectively). but also with respect to the operation of the judicial system. In this regard, the household survey revealed Among households, 67.56 percent of men and 73.86 that of 612 women, only 106 (17.32 percent) felt percent of women believed that the availability of sufficiently aware of their rights; 274 (44.77 percent) legal aid services was low and only 8.57 percent of considered their awareness low and 232 (37.91 men and 7.68 percent of women considered it high. percent) average. For the 595 men interviewed, 35.80 At the community level, 78.65 percent of males and percent considered their awareness low, 46.05 81.37 percent of women believed that the availability percent average, and 18.15 percent sufficient. of legal aid services at the community level was very Regarding knowledge of national laws, more women low. also confirmed they had low awareness. Women do Country Conclusion Several lessons emerge from the analysis. First, system, exacerbated by the absence of legal aid although many interviewees agreed that recent services, is a significant problem. reforms had been made to improve accessibility to the justice system, only 33.64 percent of households In fact, more than 44 percent of women and 35 reported that access to justice had improved because percent of men said their knowledge levels of rights of these reforms. The reforms, in the respondents’ was low and 69.44 percent of women and 61.68 views, included improved staff access to percent of men believed that their knowledge level of documentation, increased staffing in jurisdictions, and the operation of the judiciary system was low. This is construction of new court buildings. Others involved because information is indeed limited. For 81.03 legislative text reforms, improving staff remuneration, percent of key players of the judiciary system, legal retraining court staff, and acquiring modern information is not available at the community level. A equipment. lack of legal aid services exacerbates the problem, with similarly high levels of both women and men About 50 percent of respondents said administrative identifying the problem. Most interviewees said used courts were difficult to access and 70.59 percent the media as their primary source of information and thought that Cameroon’s judiciary favored the rich 45.40 percent of them said they never used law and powerful at the expense of the less fortunate. professionals. Second, barriers to access justice remained Fourth, it is therefore not surprising that much of the significant. Among interviewees, 55 percent primarily population no longer has confidence in the judiciary to pinpointed the lack of information, while 57 percent of administer justice fairly and independently. As an young people and 58 percent of women, two of the alternative to the formal system, 24 percent of vulnerable groups focused on in the survey, identified interviewees in Yaoundé systematically resorted to the absence or limited availability of legal aid services, alternate justice mechanisms (conciliation, which significantly increased the cost of accessing mediation). Among these people, women represented justice. The length and complexity of legal 53.82 percent and individuals younger than 35 proceeding, likewise, represented a serious barrier for accounted for 60 percent. these vulnerable groups, at 74 percent of young people and 73.48 percent of women. Finally, and more all-encompassing, it is clear from this study that many barriers to access to justice Beyond the physical barriers, interviewees in Yaoundé persist in Cameroon. In addition, many substantive pointed to prevalent corruption (up to 86.27 percent questions on certain issues such as family law, the of respondents), discrimination by officials of justice rights of young people, the rights of elderly and (64.89 percent), poor decisions (65.71 percent), and disabled people as well as the rights of consumers are lack of confidence in justice (78 percent) as the main not always addressed. Any reforms should ensure that barriers to access. recourse to the courts is as inexpensive and as expeditious as possible and that the services of Third, awareness of national laws and information lawyers and notaries are accessible to all. about the operation of the Cameroonian judiciary Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 24 Chapter 3 Ethiopia “I feel that I am incapable of using courts without money. There is a perception at the community level that you win everything in court when you have money.’ Small scale businesswoman in Arada, a suburb of Addis Ababa. Introduction Modern Ethiopia, home to more than 80 ethnic and in July 1991 a national conference established groups, was created by highland rulers through the Transitional Government of Ethiopia. The political and economic conquest in the late conference also endorsed a Transitional Charter nineteenth and early twentieth centuries. Emperor that worked as an interim constitution. Menelik II (who reigned from 1889–1913) expanded his rule from the central highland The new constitution of 1994 provided Ethiopia its regions to the south, west, and east and began first independent judiciary, with other modernizing the country. constitutional provisions having the potential to significantly change the judicial system. A power struggle ensued after his death, with Ras Traditionally, the Supreme Court and various lower Tafari Mekonnen the victor, who was crowned courts had been the responsibility of the Ministry Emperor Haile Selassie in November 1930. He is of Law and Justice, and after Selassie's overthrow, credited for the modernization of the bureaucracy much of the formal structure of the existing judicial and for establishing a relatively longer period of structure remained intact. The new constitution political stability, but his reign lacked reform. The stipulated that judicial authority rest in "one regime fell in 1974 and a group of low-ranking Supreme Court, courts of administrative and military officers called the Derg assumed power autonomous regions, and other courts established that year, beginning an era of massive human by law. rights violations and internal conflicts. The surveyed revealed serious challenges, By 1991, however, the Ethiopian Peoples’ nonetheless, particularly expensive lawyers, Revolutionary Democratic Front had launched an prevalent corruption, and slow delivery of justice. ultimately successful military assault, while Most survey respondents also identified absence or Eritrean rebel forces closed in on the cities of Assab limited accessibility of legal aid services and a lack and Asmara. In May 1991, the Head of State, of legal information on rights and the operation of Colonel Mengistu Haile Mariam, fled to Zimbabwe, the justice system as serious issues. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 25 Box 2 Key Findings Perception of the Vulnerable on Matters of Access to Justice • Family matters (including divorce, child support, spousal support) are most frequent and misuse of power least frequent for household respondents. • Perceived accessibility of formal courts is moderate for the majority of the vulnerable, meaning it is neither easy nor difficult to access formal courts. • For police and prosecution offices and social courts, the majority felt positive in the household survey. Over 50 percent agreed that easier access than regular and Sharia courts. • The study verifies that the court system has improved as per an overwhelming majority of household respondents (79.5 percent), court users (63 percent), and stakeholders (80 percent). Barriers of Access to Justice The following are the most onerous: lawyer expense (70.2 percent), prevalence of corruption (66.6 percent), prolonged process and delay in the delivery of justice (58.4 percent), absence or limited accessibility of legal aid services (56.9 percent), lack of legal information on rights and the operation of the justice system (55.1 percent). Access to Non-Formal Justice Mechanisms • Most respondents (55.7 percent) had never used traditional and alternative justice to resolve legal issues and 9.7 percent said they resort to such mechanisms seldom. Legal Literacy and Awareness • Most respondents had some knowledge of their legal rights, but that they knew little about how the legal and judicial system operates. • Most respondents get legal information from print and electronic media (including newspapers, TV and Radio) and from personal contacts such as family members, neighbors, and friends. Access to Legal Aid • Providers of legal aid programs, though few, include charities, NGOs, the Ministries of Justice and Women, Children and Youth Affairs, members of the bar, free legal aid centers in universities with law faculties, and others, Knowledge of these is poor or very poor for most (77 percent). Quality and Cost of Justice • According to vulnerable groups at the community level, judicial services are less-than- moderately affordable. Those who have a positive attitude about the delivery of affordable service total 26.1 percent. • Costs related to accessing legal assistance services, transportation, as well as opportunity and emotional costs are considered high for the majority these respondents. • Of the statement that “the justice system works only for the rich and the powerful” 47 percent disagree and 13 percent strongly disagree.” • Asked whether court users are likely to use courts again, only 30 percent said they are unlikely to do so, while the majority (51.3 percent) were likely to do so. Institutional Framework, Judicial Structure, Legal Framework As a constitutional, democratic federal republic, include the federal government, the 8 regional Ethiopia has executive, legislative, and judiciary (state) governments, and 2 autonomous city branches of government. Governance entities administrations of Addis Ababa and Dire Dawa. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 26 Among justice institutions, the Ministry of Justice The religious, that is Shari’a Courts, are given is responsible for investigation and prosecution recognition at the federal level, with first instance, and the Ministry of Federal Affairs supervises the high, and supreme courts. All State Councils have federal police and prisons. Bureaus of these similarly recognized the shari’a courts within their institutions perform their duties at the regional respective jurisdictions. level. Law enforcement institutions also include the Federal Ethics and Anti-Corruption Commission Social Courts, meanwhile, represent a more and its regional counterparts. Likewise, the prevalent judicial structure established as small judiciary functions at the federal and regional claims courts in almost all regional states and levels. Addis Ababa. Though jurisdictional provisions vary across the country, social courts are generally Supreme judicial authority is vested with the mandated to entertain civil cases costing up to a Federal Supreme Court, which is responsible for maximum of Birr 5,000 (about $216 based on the establishment of the federal High and First exchange rates at the time of the survey). They Instance Courts. A parallel judicial structure with also have jurisdiction over petty offences. regional Supreme, High, and First Instance Courts operates regionally. The Regional Court hierarchy is similar to the federal, with the formation of Supreme, High, and Additionally, a system of City Courts has been First Instance Courts in every regional state. established in the capital and some regional cities; Jurisdictionally, regional Supreme Courts have these are municipal courts with defined appellate and cassation jurisdictions, high courts jurisdictions determined by federal legislation and have both first instance and appellate jurisdictions, regional laws. The Addis Ababa City Charter and first instance courts entertain cases of first creates two levels of City Courts exercising civil instance. In addition to handling cases that fall and criminal jurisdictions in municipal matters. under their jurisdiction by regional laws, regional Similar municipal courts have been established by supreme courts entertain cases delegated to them the Oromia National Regional State in the more from corresponding federal courts. Shari’a courts densely populated urban centers within the region. are also instituted at the regional level with similar hierarchy to the federal. Legal framework Ethiopia is a signatory to the Universal Declaration treason, and other serious criminal allegations. of Human Rights and has ratified all the major Similar public defender’s offices and services are international and regional human rights being established in some regions. instruments relevant to the protection of vulnerable groups, including those focusing on The Federal Court's Advocates Licensing and women, children, and people with disabilities, Registration Proclamation (Proclamation without significant reservations. Moreover, the No.199/2000) and the Federal Court's Advocates Government of Ethiopia is making visible effort to Code of Conduct (Regulation No. 59/99, Article 49) adhere to the enforcement and reporting require advocates to provide 50 hours of free legal requirements of the conventions at the regional aid service per year for the benefit of the poor or and international levels. the public interest, which could serve as the basis for pro bono services (Article 49). Subsidiary laws and regulations supplement the Relevant norms and standards include international treaties and the constitutional constitutional guarantees, international human provisions. The Criminal Procedure Code reinforces rights laws, civil and penal laws and procedures, the right to legal aid of accused people in cases labor laws, land use and administrative laws, and where the accused is a minor or when the accused sectoral and developmental policy documents. cannot defend her case because of mental or These norms guarantee basic principles of human physical disability. rights, such as equality and nondiscrimination, protection from abuse and exploitation, The Public Defender’s Office is established at the participation in matters affecting the rights and federal level under the Federal Supreme Court, well-being of women, children, and the family. pursuant to the proclamation providing for the Laws and regulations also exist recognizing the establishment of the Federal Courts. Created in vulnerability of women and children in such issues 1995, the office provides legal services to criminal as family law, inheritance, property and land law, defendants, as the constitution mandates. Primary juvenile justice, and violence against women and beneficiaries of its services include defendants of children. genocide, juvenile delinquents, corruption, Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 27 The legal framework also provides for the rights of access to justice and fair trial. Access to justice is The constitution’s explicit recognition of legal recognized as a right in the constitution, making pluralism, that is, traditional and religious legal Ethiopia one of the few African countries to do so. systems, is also important. This extends to the The constitutional guarantees also extend to the recognition of alternative dispute resolution basic components of access to justice, such as the mechanisms under the Labor Law, Civil and right to be represented by legal counsel at state’s Commercial Codes, as well as to the establishment expense, the right to an interpreter, pro se of religious courts, that is, shari’a courts, from the representation, waiver of court fees for indigent federal to local levels. parties, pro bono legal services, and other fair trial rights. Survey Results Box 3 Voices of the Vulnerable “I ruled out going to court when my husband left me and his two children for another lady. I had no one to help me in the litigation process. I had nowhere to go if my husband forced me to leave the house. I had no one to protect me from threats and violence that may follow from the case. Thus, I said I better work hard to survive and feed my children.” A woman named Lideta. “Most of us fear going to courts. There seems to be a general perception that going to courts is a waste of time and fruitless. We thus prefer settling disputes through mediation, arbitration or other means including at the cost of unofficial payments and undue loss of revenues. Rumors about those who have withdrawn cases because of prolonged process strengthen such perception.” A female trader and exporter. “To me going to courts is not for everyone to exercise. What comes to my mind when I think of courts is fear of punishment. What if I get arrested because of what I say or do in courts and what if that led to my imprisonment and hence parting from my husband and children. I better stay far from courts.” “Access to courts is not easy for a poor woman. It involves cost of transportation and preparation of pleadings. It requires knowledge, money, confidence to speak out, and to challenge cultural norms. The time it takes and fear of losing cases are also frightening for women.’ Kirkos woman. “Most women victimized by domestic violence tend to be quiet about it and it is seldom that they use available justice mechanisms for fear that they may not get a solution in a timely manner and for lack of any protection from further violence’. Gulele woman. “What obstructs me and many other women not to go to courts is lack of knowledge about rights and enforcement mechanisms. Legal information is crucial to abide by the law and avoid going to courts.” Female trader in the export business. “Many people think that they cannot even whisper and move around in court compounds. Ignorance about the law, justice institutions and how to access them is predominant among poorer communities.” Kirkos woman. ‘The problem with using alternative justice mechanisms includes dominance of men and men’s interests over that of women, weak execution of their judgments and its exposure to misuse and corruption.’ Participant from Kirkos. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 28 Scope Three groups of respondents were targeted and using a combination of stratified, random, and accessed as primary sources of information: purposive sampling techniques to ensure representation of vulnerable groups in Addis ▪ Women and youth at the community level who Ababa, especially women and youth. participated in the household survey and in focus groups. Focus group discussion The survey covered 1,289 respondents (women participants included leaders of women’s and youth) living in randomly selected households business associations, leaders of women’s and from six woredas35 in six subcities, informal traders youth associations and other community-based (30), housemaids (42) from the neighborhoods of associations, women, children and youth affairs these households, as well as female victims of officials, among others. violence (30), and children in conflict with the law ▪ Court (direct) users drawn from women using (2) drawn from shelters and the Center for Federal First Instance Courts, Addis Ababa City Reformation and Rehabilitation of Children in Administration courts, and Federal Sharia Conflict with the Law in Addis Ababa. courts. ▪ Key stakeholders drawn from all federal and Respondents comprised 70.36 percent women and city courts in Addis Ababa, women’s affairs 29.64 percent men, with most respondents aged officials at the district and sub-city level, and 10–29, or 67 percent of all respondents. The from other justice sector organizations, majority had secondary education (41.3 percent), including the office of the Ombudsman, with a college diploma (25.8 percent) and above, Ethiopian Human Rights Commission, the and primary education (17.8 percent), the police, and Ministry of Justice (prosecutors). remainder illiterate and with low education levels. Stakeholder interviews were answered by 66 The Household Survey utilized a structured professionals representing judges, prosecutors, questionnaire to assess the perception, practice, private attorneys/advocates and legal aid, and perspectives of vulnerable groups in Addis responding to a structured questionnaire to gather Ababa regarding most of the research issues perspective of key stakeholders on some of the key mentioned above. Respondents were selected access to justice issues. Results summary The justice needs among the vulnerable groups in • misuse or abuse of power by police and Ethiopia in order of frequency are: justice sector officials including unlawful arrest and detention (11.3 percent). • family law issues including divorce, domestic disputes, inheritance, child The household survey findings disaggregated by support and custody (36.4 percent); gender, age, residence, and education are also • property and business matters, including interesting. For instance, the most recurrent entitlements to urban land use and criminal issues identified by women are bullying, housing, issues of licensing and taxation sexual harassment, and domestic violence. For (32.4 percent); youth aged 18–29 in low-income communities, • gender-based and sexual violence against such as Kirkos and Gulele, unlawful arrest and women and children, including sexual detention are important. abuse (rape), sexual harassment, bullying, and domestic violence (24.1 Children reported the highest incidence of sexual percent); abuse, sexual harassment, and corporal • contracts, tort, and other monetary claims punishment among age groups. The frequency of (21.3 percent); these offenses is also more than two-fold greater • labor issues including child labor (12.8 for youth and children than the elderly and the percent); middle-aged, reaffirming the vulnerability of youth • physical violence and punishment against below 29 in matters of sexual and physical children and youth at home, in the violence. These offences (physical and sexual community, and in schools (12.4 percent); violence at home and in the community) affecting 35 Lowest administrative units in Addis Ababa below sub-cities and the city administration. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 29 women, children, and youth are more recurrent in 63 percent of surveyed court users acknowledged low-income communities and disproportionately improvements in the past few years. affect illiterate respondents and those with elementary education. Barriers to accessing formal justice mechanisms— One major inquiry of the household survey was to Focus group participants agreed that property determine the seriousness of barriers to access to rights, with an emphasis on housing and land- justice by gauging the perception of vulnerable related disputes, are common justice needs for groups on a list of barriers. All 12 barriers are once women and youth in communities. Property rights again confirmed by women and youth in Addis aside, the most common and critical justice needs Ababa, to varying degrees. included family law issues, gender-based violence, and child abuse and neglect. Five barriers stand out as the most serious by more than 50 percent of the respondents, while the top Participants also mentioned justice needs that two in the list are labeled serious by more than might not be covered by the household survey, two-thirds. These include the following, in order: such as contractual issues related to delivery of goods, quality of supply, and financial settlement, ▪ High cost of hiring the service of a lawyer among them issuing bad checks and settlement of (70.2 percent). credits; theft and fraud by suppliers, customers, ▪ Prevalence of corruption (66.6 percent). and workers; and administrative justice issues ▪ Prolonged process and delay in delivery of related to taxation and licensing. justice (58.4 percent). ▪ Absence or limited accessibility of legal aid The survey clearly establishes positive perception services (56.9 percent). at the community level about accessibility of law ▪ Lack of legal information on rights and the enforcement agencies (the police and prosecution operation of the justice system (55.1 office) and social courts. More than 50 percent of percent). respondents agreed accessibility of these institutions was relatively easier compared to Four barriers were considered serious by more regular and Sharia courts. than one-third of respondents, but less than the majority. These are determined as moderate The responses of court users mirror the findings of barriers, considering that they constitute the household survey but with little variation. The responses ranging from 36.2 percent to 38.8 highest proportion of court users (30.3 percent) percent. These include the following: agreed with household respondents when they give accessibility of formal courts a medium rating. ▪ Incompetence of court and law enforcement Nonetheless, most of the court user respondents officials (38.8 percent). (46.6 percent) assessed it negatively and assessed ▪ High cost related to reporting and filing a the accessibility of formal courts as difficult or very case (court fee, secretarial and difficult. Conversely, 22.8 percent of court users transportation expenses) (38.3 percent). had favorable opinions. The majority of focus ▪ Poor quality of outcome and process (37.3 group women (particularly business women) and percent . youth participants say they had never accessed ▪ Complex, unfriendly and intimidating courts, while those who had hinted that the did so procedures (36.2 percent). for a lack of other options. Non-serious barriers, meanwhile, refer to cultural Some 1,062 women and youth (79.5 percent) of and linguistic barriers, and gender bias and respondents simply or strongly agreed, with only discrimination by justice sector officials. The 101 (7.8 percent) respondents disagreeing. The frequency distribution of the respondents who rest were neutral. rated these items as serious barriers was also lower: 12.3 percent for cultural and linguistic The perception of household participants was barriers, and 25.7 percent to gender bias and shared by surveyed stakeholders, with 80 percent discrimination by justice sector officials36. agreeing with the statement and only 9.2 percent disagreeing or strongly disagreeing. The Trends in the use of courts by the vulnerable—In perception of court users is perhaps the most the judicial database system provides space for relevant in verifying measures taken to improve registering gender, but the judicial practice does the accessibility of court and justice institutions: not involve disaggregation of parties to a dispute by gender and age, making it difficult to assess the 36Since survey sample was urban (City of Addis Ababa), as the courts are geographically well distributed, “distance to courts” was not considered a serious barrier by the respondents. In a rural or peri-urban setting in Ethiopia this factor may be serious barrier to access to justice. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 30 extent women, youth, and children are using the capacity of personnel, and unpredictability of formal court system. What is commonly done to outcome. disaggregate data by gender is a review of common feminine names, as in the case of the Awareness about legal rights—Analysis of the World Bank study on users and uses of federal household survey suggests that the majority of courts. This study establishes from the analysis of respondents had some knowledge about their legal civil cases entering the Federal First Instance Court rights. The most frequent response was medium that women constitute a majority (probably awareness, at 59 percent. A significant proportion because they are frequent plaintiffs in family (24 percent) said their awareness was high and the cases) and are slightly more likely to appear as rest (17 percent) said they had little or no plaintiffs than men. Their representation declines, awareness at all. however, in the Federal High Court and Federal Supreme Court, largely because original Legal system awareness—Even though most jurisdiction cases are a minority in the Federal High respondents had medium knowledge of their legal Court and nonexistent in the Federal Supreme rights, overall awareness of legal system operation Court. This may also indicate that they usually won was relatively poor. More specifically, 42.2 percent their cases in the first instance (thus did not of respondents rated their knowledge on the appeal). It also means that first (for the High Court operation of the legal system as medium, while alone), they are less likely to initiate cases of responses testifying to poor and very poor higher monetary value, and second (for both the knowledge gets higher (49.5 percent). Hence, the High and Supreme Court) they apparently are less respondents’ knowledge of the legal system is likely to enter appeals or cassation. lower than knowledge of legal rights. By contrast, women were significantly less Availability of legal information—Availability of frequent users in labor cases. As defendants, legal information at the community level is women are underrepresented at all levels, extremely limited according to 68 percent of although in the Federal Supreme Court and Federal respondents. Those who rated their responses High Court, somewhat less than as plaintiffs or medium were also small, 24.4 percent, while the appellants. Children are users of courts in family sum of high and very high yields were 7.6 percent. disputes, including custody and child support, There is no significant variation by disaggregation. inheritance, and adoption. They also come to courts as victims and witnesses to sexual violence Household respondents were asked to point out and as suspects of crime seeking child justice. which sources of information they relied on to get legal information. They get legal information The household survey asked how much mostly from personal contacts, such as family respondents or family members made use of members, neighbors, and friends and print and alternative and traditional justice mechanisms to electronic media (including newspapers, TV, and settle disputes and redress grievances. Most radio). The latter is the most popular source of respondents (55.7 percent) had never done, 9.7 legal information, with 46.7 percent using it more percent did so seldom, 25 percent did so frequently and 33 percent moderately. Personal infrequently, 8.4 percent usually, and 1.3 percent contacts come next, with 39.3 percent using it frequently. The household survey also established, moderately and 22 percent frequently as a source among respondents, 59.2 percent of men and 68 of legal information. Materials like posters, leaflets percent women in Addis Ababa were not frequent and billboards, awareness raising workshops and users of informal justice mechanisms. programs, community outreach and community Neighborhoods largely inhabited by homogenous conversation programs, and professional lawyers ethnic groups with traditional community ties were the least popular sources of information. tended to use traditional justice mechanisms more While 89.1 percent never or seldom used than others. community outreach programs, of those who did 87.1 percent attended awareness raising Barriers to accessing non-formal justice workshops, 71.9 percent used professional mechanisms—Respondents to the household lawyers, and 68.2 percent posters, leaflets, and so survey were also asked to rate the seriousness of on. barriers to using alternative justice mechanisms— barriers affecting their use of traditional and Access to legal aid services—The household survey alternative justice mechanisms—as most, examined awareness and knowledge of free legal moderate, and least serious. The survey affirmed aid service programs and their perceptions that the weak execution of decisions holds the top accessibility of legal aid services at the community spot in the seriousness list, followed by prolonged level. Knowledge of free legal aid service programs process and delay in the delivery of justice, gender at the community level was “very poor”, at 46.5 bias and discrimination by personnel, limited percent, and 30.5 percent “poor” or 77 percent of the total negative. The rest were moderate (17.3 Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 31 percent) and high and very high (5.7 percent). The Costs of judicial services—The household survey majority of respondents did not consider free legal assessed the perception of vulnerable groups on aid services accessible. affordability of judicial services. The most frequent response was the middle option, at 37.5 percent. Stakeholder perception of the availability of legal Slightly fewer respondents (35.4 percent) had the aid services at the community level was similar. opinion that affordable service were seldom or Two in three stakeholders (66.2 percent) never delivered. The perception of stakeholders on considered legal aid “slightly available” at the the affordability of judicial services is relatively community level, while only 20 percent thought it positive for 42.4 percent of stakeholder “moderately available”. For 12.3 percent of respondents. stakeholders, legal aid services were not available at all at the community level. Fairness of justice system—The household survey probed attitudes of vulnerable groups (women and Responses also reveal that court users had not youth) on the fairness of Ethiopian justice. More received legal aid services (62.5 percent) when specifically, the survey asked to what extent seeking remedies from the justice institutions and respondents agreed or disagreed that: “The justice courts, with 37.5 percent saying they did. Among system works only for the rich and the powerful”. these latter, 84.7 percent received oral advice and 78.2 percent legal assistance in the preparation of The majority of the respondents disagreed—47.6 pleadings. However, the proportion of users who percent of the respondents disagreed with the were represented in court proceedings was only statement, and 13 percent strongly disagreed. 35.7 percent of those who received any form of With a count of respondents reaching 781 women legal aid. This constitutes only 13.8 percent of all and young men, this figure expresses the public respondents included in the court user survey. perception inclined toward trust and fairness in the justice system. Stakeholders’ perception of Quality of judicial processes and delivered fairness in the justice system was similarly services—The perception of vulnerable groups on assessed and the majority (69.7 percent) of the delivery of quality justice services seems to be respondents disagreed with the statement with positive or moderate, according to the findings of more than 22.7 percent expressing strong the household survey. Accordingly, 38.9 percent of disagreement. Less than a fifth of all respondents respondents opted for the middle ground, while in the stakeholder survey (18.2 percent) agreed 33.3 percent held a negative perception of the with the adverse statement and only 1.5 percent delivery of quality services. The remaining 28 among them strongly agreed. More than a tenth percent thought quality service was delivered by (12.1 percent) of all respondents to the survey was the Ethiopian justice system often. Stakeholders undecided on the issue. The user survey results had a more negative perception than ordinary indicate that a large proportion of court users (69.7 people. The total proportion of stakeholders who percent) disagreed or strongly disagreed with the responded negatively to the quality of judicial statement, while less than one in five (18.9 services was 42.4 percent, compared with 21.2 percent) expressed agreement. The proportion of percent positive. respondents who were undecided was also relatively small (11.3 percent). On whether the justice system delivers timely service, the majority of respondents in the Fairness of the judicial process is also assessed, household survey opted for the middle option, 36.6 focused on objectivity and bias. Consistent with the percent saying that the justice system sometimes above, 52.7 percent of respondents gave a positive delivers timely service. Yet, an equivalent assessment of the process. On the other side of the proportion (36.3 percent) believed that it did so scale, 24.4 percent responded that the justice seldom or never. The proportion of those with a process was never or seldom objective and positive outlook was about 27 percent. Court users unbiased. The remaining 22.9 percent of users viewed this negatively, with 50.7 percent almost chose the middle ground and responded that the equally divided between negative ratings of process is sometimes objective and unbiased. The “never” and “seldom”. A substantial, but relatively outlook of most court users on this issue is small 31.9 percent of respondents had a positive predominantly negative, with only 28.3 percent of point of view. A smaller proportion (17.4 percent) respondents choosing positive ratings. A much chose the neutral option and assessed the process larger proportion of court users (59.7 percent) as “sometimes” timely and efficient. Stakeholders’ found the justice process lacking objectivity. assessment of timeliness and efficiency in the Moreover, the highest proportion of responses justice process is also negative, with 44.6 percent (39.8 percent) fell on the worst available option, saying “seldom” or “never”. “never,” which left only marginal numbers of respondents supporting the neutral response. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 32 Country Conclusion The 2012 study has reaffirmed that the Ethiopian legal there is virtually no organized system of collecting and and policy framework is generally conducive to disseminating justice information. protecting the rights of the vulnerable and assuring their right of access to justice. The legal spectrum Awareness of the vulnerable concerning their rights extends from constitutional provisions and ratification and the operation of the legal system are not of international human rights instruments down to encouraging—most had minimal awareness of either. substantive, procedural, and subsidiary laws. That courts and other justice institutions lack an information network to sensitize vulnerable groups The overall perception on accessibility of justice in the about their rights worsens the problem. The lack of country is positive, albeit with variations specific to awareness campaigns even about reform measures each of the justice sector institutions, in that the and available resources for legal empowerment closer the justice institution is to the community, the contributes to negative perceptions about more positive the perception. accessibility. One major intervention that improved access to The study reaffirms that the vulnerable lack both the justice is the establishment of courts and benches in awareness and the capacity to take all legal claims to different parts of the city. However, in most cases, courts and alternative channels. It further suggests court facilities and structures were not up to par. Most that personal, economic, and social security issues at courts are in buildings not custom-built as home and in communities (such as inheritance, courthouses. Some are even in rented premises with divorce, child custody, childcare, division of common severe space constraints and an acute shortage of trial property, and domestic violence) are burning issues chambers. Almost all of them lack access facilities— for the vulnerable. A critical factor in this regard is the such as ramps—for the disabled and seats for court low social and economic status of women, which acts users. The courts are not all strategically located, as as psychological and material barrier. The two factors has been pointed out by businesswomen in Addis feed on one another, in that they not only expose Merkato, who would have liked to see a court close women to the infringement of their rights, but they by. Victims of domestic violence and the witnesses also hinder them from accessing the justice system to also perceived courts to be distant. find redress. A further challenge is the perennial shortage of judges Women at the community level also claim that gender and other judicial personnel at all levels. Turnover of bias against women by the justice sector officials judicial staff and personnel is rampant, particularly in remains high, particularly in the case of police. This information technology. Obviously, this harms the perception holds despite the acknowledged fact the efficiency and effectiveness of the courts, hampering there is progress in establishing gender sensitive and access to justice of vulnerable groups. At this child-friendly judicial and law enforcement juncture, one might also mention the finding that mechanisms (institutions and procedures). Recommendations Build physically accessible courts (higher, first court-based legal information services; identify and instance and municipal)—Increase physical address intimidating and unfriendly procedures accessibility ensuring quality international standard; through legal information and education campaigns. use mobile courts with comprehensive judicial services including mediation. Improving accessibility of legal aid services by the vulnerable—Promote institutionalization of a Expand the role of traditional and alternative dispute comprehensive state funded legal aid system; launch resolution mechanisms—Strengthening community paralegal training programs; strengthen legal aid level dispute mechanisms; strengthen establishment services provided in the criminal justice system. of alternative dispute resolution divisions within the formal court system. Addressing capacity limitations affecting accessibility and quality of justice—Take measures for efficient Improve access to legal and judicial information at the recruitment and retention of judicial personnel; community and court levels—This includes court- organize special training programs, experience initiated media actions; legal literacy and information sharing and consultation forums; overhaul and campaign through strategic partnerships with states, upgrading information and communication municipalities, businesses, and other stakeholders; technologies. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 33 Chapter 4 Sierra Leone In Sierra Leone, 71.4 percent believe the justice system works only for the rich and powerful. Introduction Justice in Sierra Leone is elusive, a reflection of an courts and law enforcement agencies more difficult egregious civil war ending in 2002 that, in addition to access than local courts. Yet respondents also to other tragedies, devastated the formal justice pointed to multiple barriers to alternative informal system. The war destroyed the physical justice, and raised similar issues as they did for the infrastructure of the system, undermined the rule formal justice system. Most serious were lengthy of law and credibility of its institutions, and left the processes and delays in the delivery of justice. system largely at the service only of the urban elite. Over half of the respondents said justice worked only for the rich and powerful, while slightly over Corruption and mismanagement in the political half were neutral or observed no improvement in arena in the intervening years politicized the the accessibility of the court system in recent judiciary, law, and prison services and these years. Overall, respondents said they lacked institutions do not function effectively, are slow to awareness and knowledge of all aspects of legal respond to change, and are potentially information and legal aid. uninterested in new developments that appear to challenge the status quo. The main issue in Sierra Leone is, not surprisingly, the lack of information about the legal system and Most of the population now lives in poverty, weak public-sector institutions. In rural and urban literacy is low, and public understanding of the communities, more than half of respondents felt laws or how to access justice is weak. About 70 that their level of information was at least poor. percent of people instead access the informal, This ignorance about rights and court processes customary courts or seek adjudication by compounds the difficulty vulnerable groups have traditional authorities such as tribal chiefs and accessing justice. Over 80 percent of respondents religious leaders. This reliance on informal judicial had never received legal information from a lawyer mechanisms likely reflects a lack of confidence in or through awareness-raising workshops and the formalized legal apparatus, where programs. discriminatory practices exist, as in informal systems, but where greater barriers to entry, such Clearly, empowering the vulnerable segments of as the cost of legal representation, discourage use. the population, especially women, requires legal literacy campaigns, the set-up of legal information This is borne out by the Nordic Trust Fund survey services, and a simplification of overly complicated results. Overall respondents found access to courts procedures in formal courts. and law enforcement agencies difficult, with formal Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 34 Box 4 Key Findings ▪ Costs are a major barrier in accessing justice for vulnerable groups. Vulnerable groups identify and incur different types of payments and fees in order to report, institute, and maintain a case before the formal justice institutions (including the courts and police). They consider those costs excessive, thus discouraging ordinary, disadvantaged citizens from accessing justice. These factors also add to costs: - The distance to get to formal justice institutions is significant. - Private lawyers are expensive and unaffordable for vulnerable groups, and there are very few opportunities for pro bono services. ▪ Lack of trust and confidence in the judicial system is also a major hurdle to access justice for vulnerable groups. Within this factor the report found that: - Vulnerable groups stated that formal justice institutions (courts, police) favored the wealthy and powerful. A case would more likely favor a party with greater financial and social status than a vulnerable party, irrespective of case merits. - Prolonged processes and delay in court proceedings constitutes a major barrier for vulnerable groups and discourages them from bringing their case to court. - Court procedures are complex, unfriendly, and intimidating. - Vulnerable groups perceived court and police officials to be corrupt. Respondents perceived that without bribes, case outcomes would likely be unfavorable. ▪ Demand for litigation still exceeds availability of legal aid. Court proceedings are predominantly conducted in English, but because a low percentage of people complete secondary and higher education, few could understand court proceedings. ▪ Intra-community breaches of rights—divorce and domestic disputes, domestic and gender- based violence, contracts and monetary damage, physical violence—dominated legal issues and grievances in households and courts. ▪ Outreach programs, especially through the media, could be a great resource for information on formal justice processes. ▪ Dissatisfaction was lower with the services of judges and magistrates than with prosecutors or the police. Institutional Framework and Judicial Structure Section 73 of the Constitution of Sierra Leone created and passed in parliament and then signed establishes a unicameral legislature composed of a by the president. Laws unsigned by the president, president, the speaker, and members of after 14 days, can still become law should a two- parliament. Legislative power is vested in thirds majority of members agree. parliament and the constitution provides that parliament has supreme law creating powers and Sierra Leone operates under a dual legal system can confer on individuals or authorities the power comprised of a formal system with aspects of to create statutory instruments of subsidiary common law, statute law, and customary law. legislation. Legislative power is exercised by bills Common law sometimes includes the rules of Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 35 customary law, as determined by the Supreme The Minister of Justice plays a dual role in the Court, which causes confusion. justice system. The minister oversees the judiciary and other criminal justice institutions and is the The judiciary is comprised of the Superior Courts principal legal advisor to the government in the of Judicature, the Supreme Court, the Court of capacity as attorney general. Appeals, the High Court, and the lesser Magistrates Court (which has jurisdiction in certain criminal and The Law Officers Department is part of the Ministry civil matters and preliminary investigations of of Justice and the Attorney General’s Office and is felonies). responsible for all public prosecutions. Private prosecutions can be pursued at the magistrate The customary system includes a local court for court, as well as at the High Court given a fiat from every chiefdom. With every chiefdom come the attorney general. At the magistrate level, potentially different customary bylaws, as they are police officers with basic legal training may conduct determined by local practice and tradition.37 Most prosecutions. people likely use the local courts, compelled by proximity, logistical and linguistic advantage, Sierra Leone police provide law enforcement, with familiar basis in local cultural norms, emphasis on presence at central, district, and sub-district mediation (which is favored among people levels. The force is headed by an Inspector General unfamiliar with their rights), fast, and perceived as of Police appointed the president of the country. less costly. Such factors are attractive to a population that is often uneducated and illiterate The Anti-Corruption Commission, set up in 2000, and lacks awareness and understanding of other has powers to investigate and prosecute forms of conflict resolution. corruption-related offences. Since 2008, it has unfettered power to commence prosecutions in the But such a system has several problems, such as High Court. discrimination against women in matters of personal status, inheritance, and marriage The Human Rights body was created by the Lome because of some combination of local “tradition” Peace Accord of 1999 and formalized as the Human and arbitrary outcomes.38 Jurisdictional Rights Commission in 2004 an act that year disagreement is another, with boundaries not mandating protection and promotion of human clearly known, understood, or accepted in rural rights. In 2006, the Truth and Reconciliation communities. Commission became operational and began reporting on the state of human rights annually. Legal Framework Sierra Leone is bound by Article 10(d) of its ▪ African Charter on Human and People’s constitution to respect international law and treaty Rights obligations. The following International ▪ African Charter on the Rights and Welfare of Conventions have been ratified: the Child ▪ International Convention on Economic, The Constitution also broadly addresses access to Social, and Cultural Rights justice in Section 8 (2) (a) where every citizen shall ▪ International Convention on Civil and have equality of rights, obligations, and Political Rights opportunities before the law. Further, the ▪ International Convention on the Elimination government shall secure and maintain the of All Forms of Discrimination against independence, impartiality, and integrity of the Women courts of law and ensure unfettered access and ▪ International Convention on the Rights of non-discrimination because of economic difficulty Children or other disability. ▪ Protocol on the Involvement of Children in Armed Conflict Yet there are two significant caveats in the ▪ Protocol on the Sale of Children, Child constitution: Prostitution, and Child Pornography 37 Local Courts Act of 2011: customary law means “any rule other than a rule of general law, having the force of law in any Chiefdom of the provinces whereby rights and correlative duties are acquired and imposed in conformity with natural justice and equity and not incompatible either directly or indirectly with and enactment applying to the provinces and includes any amendment of customary law made in accordance with the provisions of any enactment” 38 Amnesty International: 2006 – Sierra Leone women face human rights abuses in the informal justice sector. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 36 ▪ Relevant clauses with regards to non- ▪ Chapter 3 recognizes the protection of discrimination and access to justice exist in human rights and fundamental freedoms, sections related to fundamental principles of yet contains a root flaw: Section 27 (1) state policy. However, they do not confer provides that such laws shall not apply to or legal rights, nor are they enforceable in any make provisions related to adoption, court of law. Paradoxically, these provisos marriage, divorce, burial, devolution of are fundamental to governance, in that they property upon death, or other interests of are written as law, yet may not provide any personal law. actual protections. Survey Results Scope This survey was limited to the views on access to west, Freetown (Cline Town) in the east, in central justice issues of members of households and users Freetown (Dwarzak), and two rural mountain of the Magistrates Courts close to those villages in Western Area Rural, Songo and York) communities within the Western Area of Sierra Leone. It has plans for expanding to a nationwide The communities were chosen based on their survey. geographical location as densely populated communities and within easy reach of a magistrate Two generic questionnaires were developed based court. on similar questionnaires administered in Ethiopia and administered to sample households and The survey was conducted in May/June 2014, as magistrate court users. The areas of the household several call backs had to be undertaken to ensure survey included were within the Western Area of complete coverage. In total, 597 household and Sierra, including Freetown (Adonkia) in the far 100 user questionnaires were completed. Results summary The main legal issues and grievances arising as easy, 4.0 percent very easy, and 10.7 percent did justice needs for respondents or their households not know. were: Divorce and domestic dispute (55.8 percent) and Among court users, 38.8 percent considered domestic violence (54.5 percent); contract (33.5 access to be very difficult, 36.7 percent difficult, percent); Physical violence at the community level 17.3 percent moderate, and 7.1 percent easy. (32.7 percent); Abuse of power, including corruption (32.7 percent) The 10 most serious barriers of access to formal justice institutions were high costs of hiring a Overall respondents found access to courts and law lawyer (72.4 percent), high costs of reporting or enforcement agencies difficult, with the formal filing a case (67.4 percent), prevalence of courts and the law enforcement agencies more corruption (67.1 percent), delays in legal difficult than local (traditional) courts. processes (66.2 percent), lack of legal information on rights (62.8 percent), limited availability of legal Of respondents, 33.1 percent considered access to aid (62.6 percent), distance to courts (55.8 formal courts very difficult, 27.0 percent difficult, percent), lack of trust in judiciary (52 percent), 6.2 percent moderate, 9.1 percent easy, 1.7 unfriendly procedures (46.7 percent), and percent very easy, and 23.0 percent did not know. incompetence of courts and judicial professionals For local courts, 19.1 percent considered access (44.6 percent). very difficult, 14.4 percent difficult, 13.3 percent moderate, 24.3 percent easy, 5.4 percent very Cultural and linguistic barriers and gender bias and easy, and 23.5 percent did not know. discrimination by justice sector officials (including double victimization) were considered the least Among law enforcement agencies such as the serious barriers. police, and public prosecution, 29.4 percent considered access very difficult, 25.3 percent Legal costs—As reported by court users, costs difficult, 12.2 percent moderate, 18.3 percent related to filing or court fees were considered very high by 41.5 percent of respondents, high by 20.7 Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 37 percent, medium by 20.7 percent, low by 8.5 The justice system works only for the rich and the percent, and very low by 8.6 percent. powerful was a statement to which 5.4 percent of respondents strongly disagreed, 13.1 percent Transportation expenses were considered very disagreed, 10.1 percent neither agreed nor high by 43.3 percent of respondents, high by 26.8 disagreed, 13.8 percent agreed, and 57.6 percent percent, medium by 14.4 percent, low by 8.2 strongly agreed. percent, and very low by 7.2 percent. Costs related to getting legal services (for preparation of Respondents who believed the Sierra Leone formal pleadings and so on) were considered very high by justice system never delivers affordable service 48.3 percent of respondents, high by 21.3 percent, constituted 67.5 percent of respondents, while medium by 12.4 percent, low by 6.7 percent, and 15.1 percent believed it seldom does, 12.0 percent very low by 11.2 percent. sometimes; 2.5 percent usually 2.9 percent always. Costs related to evidence collection and communication costs (including witness Respondents who believed the Sierra Leone formal compensation) were considered very high by 37.6 justice system never delivers timely service percent of respondents, high by 30.6 percent, constituted 64.6 percent of respondents, 17.4 medium by 11.8 percent, low by 8.2 percent, and percent seldom, 12.5 percent sometimes, 3.6 very low by 11.8 percent. percent usually, and 1.9 percent always. Asked how often they or their households resorted Level of awareness and knowledge of legal to alternative and traditional justice mechanisms, information and legal aid—Respondents who 32.8 percent of respondents never did, 22.4 believed their level of awareness and knowledge of percent seldom used them, 33.1 percent their legal rights was very poor constituted 21.3 sometimes used them, and 4.7 percent usually percent of respondents, 16.8 percent poor, 29.9 used alternative and traditional justice percent medium, 25.2 percent high, and 6.7 mechanisms. Respondents who always used them percent very high. reached 7.1 percent. Respondents who believed their level of awareness Limited capacity of personnel was considered a and knowledge of the laws of the land was very serious barrier by 35.3 percent of respondents, poor constituted 26.1 percent of respondents, 24.9 somehow a barrier by 19.2 percent, and not a percent said poor, 34.6 percent medium, 11.9 barrier by 45.5 percent. percent high, and 2.5 percent very high. Gender bias and discrimination by personnel was Those calling their level of awareness and considered a serious barrier by 34.4 percent of knowledge of the workings of the legal system very respondents, somehow a barrier by 23.1 percent, poor constituted 31.1 percent of respondents: 37.8 and not a barrier by 42.5 percent. percent said poor, 19.7 percent medium, 9.2 percent high, and 2.2 percent very high. Unpredictable outcome was considered a serious barrier by 31.9 percent of respondents, somehow For level of awareness and knowledge of available a barrier by 33.7 percent, and not a barrier at all legal aid services, very poor constituted 35.6 by 34.4 percent. percent, while 39.8 percent said poor, 13.3 percent medium, 7.6 percent high, and 3.7 percent very Weak execution of decisions was considered a high. serious barrier by 34.7 percent of respondents, somehow a barrier by 37.6 percent, and not a Those calling the rate of availability of free legal barrier by 27.7 percent. aid service in their communities “very high” constituted 1.9 percent of respondents, 2.7 Prolonged process and delay in the delivery of percent said high, 24.7 percent medium, 35.0 justice was considered a serious barrier by 54.0 percent poor, and 35.7 percent very high. Over 70 percent of respondents, somehow a barrier by 22.4 percent of respondents felt that the availability of percent of respondents, and not a barrier at all by legal aid service was at least very poor, which is in 23.6 percent of respondents. line with comments from the previous question. Respondents here therefore indicated that multiple Court users who received legal assistance services barriers exist in their use of alternative, non-formal from private attorneys (licensed professionals) justice mechanisms, and raising similar issues as constituted 71.9 percent of respondents, while 8.6 for the formal justice system. The most serious percent of respondents received legal assistance barrier was the prolonged process and delay in the services from legal aid providing government delivery of justice, followed by partiality of institutions. Respondents who received legal personnel. assistance services from legal aid providing non- Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 38 government institutions constituted 10.3 percent of business matters related to licensing, supplies, respondents, while 41.4 percent of respondents taxation and so on as part of their justice needs. received legal assistance services from court officials. For domestic violence issue, those who said it was part Among court users, the respondents that considered of their justice claims constituted 67.3 percent of divorce or domestic disputes as part of their justice respondents, while 61.2 percent of respondents needs constituted 48.5 percent of respondents, while considered physical violence at the community level 22.4 percent of respondents considered child as part of their justice needs. maintenance and custody as part of their justice needs. Respondents that considered sexual abuse (including rape and abduction) issues part of their justice claims Respondents that considered inheritance issues part constituted 14.3 percent of respondents, while 16.3 of their justice needs constituted 20.4 percent of percent of respondents considered sexual harassment respondents, while 29.6 percent of respondents (at work, in schools and other places) as part of their considered contract issues as part of their justice justice needs. needs. Trafficking in women and children was considered part Respondents that considered labor issues as part of of justice claims by 11.2 percent of respondents, while their justice needs constituted 22.4 percent of 13.3 percent of respondents or their households respondents, while 20.4 percent of respondents considered commercial sexual exploitation (such as considered damages and other monetary claims as prostitution) part of their justice needs. part of their justice needs. Respondents or their households that considered child Those who considered property, including land use labor issues part of their justice claims constituted and related housing and ownership rights, part of their 17.3 percent of respondents, while 45.9 percent of justice needs constituted 29.6 percent of respondents, respondents or their households considered unlawful while 22.4 percent of respondents considered arrest and detention as part of their justice needs. Country conclusion The respondents of the household survey, slightly over half of respondents were neutral or did predominantly female, cited divorce and domestic not accept that there were improvements in the dispute and domestic violence as their main legal accessibility of the court system in the past few years. issues followed by contract, physical violence at the Linked to this, the respondents overall therefore felt community level, and abuse of power including that the service provided by the formal justice system corruption. was not affordable, of good quality, or given in a timely manner. These respondents found access to courts and law enforcement agencies difficult to access, with the Overall respondents indicated a lack awareness and formal courts and the law enforcement agencies more knowledge of all aspects of legal information and legal difficult than with the local (traditional) courts. Most aid. This is a gap that the Legal Aid Board, the Ministry of the respondents highlighted multiple barriers to of Justice, and the Bar Association should take accessing the formal justice system, but with cultural responsibility for filling, in collaboration with other and linguistic barriers and gender bias and justice sector stakeholders. discrimination by justice sector officials (including double victimization) the least serious barriers. Only Across rural and urban communities, more than half 11.8 percent usually or always resorted to alternative of respondents felt the level of legal information and traditional justice mechanisms for redress. available was at least poor. An extremely high number of respondents (82.3 percent) had never received Respondents also indicated that multiple barriers exist legal information from a lawyer or through awareness in their use of alternative non-formal justice raising workshops and programs. Over 50 percent had mechanisms and raised similar issues regarding the received some legal information from personal formal justice system. The most serious barrier was contacts, while the majority had received legal the prolonged process and delay in the delivery of information through print and electronic media (radio, justice followed by partiality of personnel. TV, internet, leaflets, posters, billboards). Over half of the respondents believed that the justice Over 70 percent of respondents felt that the system works only for the rich and powerful while availability of legal aid service was at least very poor. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 39 Chapter 5 Zanzibar “It is much easier to just deal with minor cases at the community level, and life goes on.” A respondent’s view on the merits of formal versus informal systems. Introduction Zanzibar, as a semi-autonomous part of Tanzania the system, hear all matters involving Muslim created in 1964, has its own executive, legislative, families, such as divorce, distribution of and judicial structure. The island group, which matrimonial assets, custody of children, and includes Unguja and Pemba as well as several inheritance. smaller islands 25–50 kilometers off the mainland, feature a judiciary running from primary courts Among the leading grievances respondents had to through to the high courts, as provided under the the survey were issues related to divorce and 1984 Constitution of Zanzibar. domestic disputes, property issues, labor issues, and others. Domestic and sexual violence, though The High Court has exclusive original jurisdiction reported less, were still significant. over all matters, much like the High Court on the mainland, and its structure is much the same. The Regarding the accessibility of justice institutions, Court of Appeal in Dar es Salaam in Tanzania, in respondents considered formal courts more turn, handles all appeals from the High Court, and difficult than social and religious (Kadhi) courts. the High Court handles all appeals from the lower Yet, opinions about the accessibility of law courts. enforcement institutions and courts were divided almost equally. Leading barriers to access included Magistrate’s Courts take other cases, except for the prevalence of corruption, delays in justice, high those falling under Islamic law, which are tried in costs, and lack of legal information on rights and the Kadhi courts. The Kadhi Courts, the lowest in the operations of the justice system. Box 5 Key Findings ▪ Religious leaders have the most positive standing in communities. Tribal heads, judges, and magistrate are far behind. ▪ Most respondents said that the justice system works only for the rich and powerful, with more men than women holding this view. ▪ The opinions of urbanites and rural residents do not differ statistically. ▪ The judiciary ranks poorly in the public eye regarding affordability, timeliness, and quality service. ▪ Statistically significant differences in views about affordability and quality by location, but not gender. ▪ Very few people have high or very high awareness and knowledge of legal issues. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 40 Institutional Framework, Judicial Structure, Legal Framework The current Zanzibar Judiciary system is a model The judiciary system today is made up of a single- that has evolved from the abolition of the two-tier tier High Court and Subordinate Courts which High Court structure (for His Highness the Sultan include Kadhis Courts. Most of the judicial and and Her Majesty High Court for British Subjects) administrative staff are in Zanzibar city and that existed before the Zanzibar revolution of operate out of the Palace of Justice which houses 1964. the High Court. Survey Results Among the leading common grievances, as noted, Among households a high proportion of are those related to divorce and domestic disputes, respondents could not form an opinion about property issues, bullying, labor issues, and performance of legal aid service providers (private damages and other monetary claims, and child attorneys and paralegals and other legal aid support and custody issues. Domestic and sexual providers), as well as judges and magistrates. violence issues, although fewer people reported Respondents at the courts gave an especially them, have a critical impact for the traumatic negative assessment of performance to the police impact they can have on communities. and assessed them more negatively than how household respondents assessed them, with more Gender differences were also revealed in the than 2 out of 5 saying their performance was “poor surveys: men were more likely to report business- or very poor”. related matters and women more likely to report family-related issues and issues linked to gender Courts ranked poorly on impartiality, with a violence and abuse. majority of respondents of both household and court-level surveys saying they were only serving Survey participants were asked to rate how they the rich and powerful. This sentiment is echoed perceived accessibility of formal courts, Sharia or strongly in community focus group discussions. Kadhi courts, law enforcement agencies (the police Among households, the feeling was that nothing and public prosecutors), and social courts. On a had changed, while in the court survey’s comparative scale, people perceived social courts respondents were nearly evenly divided between to be the most accessible (48 percent saying they those who said access for the vulnerable had are easy or very easy to access), followed by Kadhi improved than those who disagree with this courts (43 percent saying they are easy or very assertion. Men were especially convinced that the easy to access). vulnerable groups had not fared any better. Law enforcement agencies followed in third, with Courts also ranked poorly in how they delivered on nearly divided opinion (33 percent said they are affordability, timeliness, and quality of service to easy or very easy to access while 31 percent that clients. Most respondents of the household survey they are difficult or very difficult to access). Formal said they “never” or only “seldom” delivered courts had the lowest rating of accessibility on a affordable, timely, and quality service. This issue comparative scale and slightly more people (35 is echoed in both court user surveys and focus percent) said the formal courts are “difficult or very group discussions. In the court user survey, a difficult” to access, compared to 31 percent saying slightly higher proportion of respondents felt that they are “easy or very easy” to access. the court process is “never or seldom” timely and efficient, compared to those who said it was “often Examination of barriers to accessing justice lead or always” efficient. In the community focus with corruption, prolonged process and delays in groups, accounts based on personal experiences justice, high costs—for filing a case and hiring and those of household and community members services of lawyers, and lack of legal information were narrated to express frustration with the way on rights and the operations of the justice system. courts delivered, especially on timeliness. However, court users perceived that courts were The religious courts are perceived to be a more ensuring relatively well that they used accurate reliable alternative to government courts, information in decisions and in providing space to especially considering the high emotional costs, litigants to express themselves. and costs caused by delays in completing hearings in the government courts. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 41 Legal literacy and access to legal aid service Generally, very few people attested to “high or media, awareness raising workshops and very high” awareness and knowledge of legal programs, community outreach programs, and issues. For many people in communities, nearly 2 professional lawyers had “never or seldom” served out of 5, the self-assessment of extent of legal them as a source of legal information. Respondents literacy they possess is “poor or very poor” about of the survey also felt that availability of free legal laws of the land, individual rights before the law, aid is at best “moderate”, with a much higher working of the legal system and availability of legal proportion of respondents saying free legal aid aid. The consequence is that some people services’ availability in their communities was experience barriers in accessing legal services they “poor or very poor” compared to those who may need. Negative perceptions about court thought it was “high or very high.” performance also arise due to misinformation justice process procedures and rights of Improving legal literacy, access to information, individuals. and making free legal aid services available in communities are therefore all critical as part of a The predominant view about availability of legal broad national effort to improve access to justice. information in communities lies somewhere Working to alleviate integrity concerns the public between “moderate” and “poor or very poor”. has on government courts is also essential and Moreover, information channels had not been able here the Kadhi courts, which the study participants to reach a sufficiently large proportion of generally felt were more responsive, efficient and community members with legal information. A fairer in handling of clients, may provide some significant majority (more than 80 percent) said lessons on how to unlock the internal constraints information sources such as print and electronic to integrity. Country Conclusion The quantitative surveys in households and courts ▪ Improving legal literacy and access to as well as focus group discussions together legal assistance services highlight important justice needs in communities, as well as gaps in how the justice system works to The leading common legal issues and grievances, meet them. This chapter highlights efforts to as noted earlier, include divorce and domestic improve access to justice that Zanzibar can focus disputes, bullying, labor issues, damages and on. It also provides additional analysis of court monetary claims of various kinds as, and child statistics to help contextualize the findings from maintenance and custody issues. the surveys and FDs. Even though reliance on formal justice The highlighted themes are not an exhaustive mechanisms is growing, more effort may be listing of possible issues that can and would need needed to support the informal alternatives and to to be addressed. Nonetheless, it is hoped that they relieve them of their growing burdens. Authorities provide reasonable indications of areas where could consider fostering collaboration between priority attention can be directed. The issues are state-funded and nonstate-supported grouped along three broad themes within which mechanisms, by prioritizing areas where several sub-themes can still be recognized. community members see such mechanisms as more effective. This is especially important where ▪ Responding to the common legal issues resources are limited in the formal justice system, and grievances in communities as in Zanzibar. ▪ Improving the functioning of the justice system Improving the functioning of the justice system The structures a justice system needs already exist also raised about fairness of treatment between in Zanzibar. But survey findings raise questions the weak and vulnerable and the rich and powerful. about efficiency and responsiveness (timeliness, When comparisons are made between secular affordability and quality of services). Issues are courts and religious kadhi courts, the predominant Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 42 sentiment is that the latter embody model features For example, the Zanzibar judiciary statistics show of efficiency and effectiveness that would be ideal that the actual budgetary resources spent between to see in the government run courts too. 2011/12 and 2015/17 ranged between Tanzanian shillings 571 million and 805 million (2013/14 Still, even while integrity issues might be at play, highest). In per capita terms, annual realized some of the dissatisfaction expressed by budgets per capita have hovered below 500 community members may reflect institutional shillings, during the last five years, between resource gaps afflicting the formal justice system. 2011/12 and 2015/16. Improving legal literacy and access to legal assistance services Improving legal literacy can improve the process for legal services assistance for individuals with of accessing justice while also changing litigations in courts. However, considering the misconceptions about the justice system. Findings resource-strapped nature of courts, the ability to from the surveys show that quite a few people in serve court users may not match the demand for communities can claim to have “high” or “very their services. Improving availability and high” awareness and knowledge of legal issues. awareness of existence of alternative sources of And while about 2 out of 5 of our participants in legal service assistance such as paralegals services this study claim “moderate” levels of awareness is essential. From the findings in this survey, one and knowledge of legal issues, a sizeable group out of three respondents indicated they knew very assesses their legal literacy as “poor or very poor.” little about these legal service providers to form an Community focus group discussions confirmed the opinion about them. concern that a lack of knowledge has affected individuals access to justice, and their views of law Some suggestions include: enforcement officials. ▪ Training of a few people in communities as So far however, many information sources have mentors on basic law, and equipping them reached very few community members in a to train others, including on how they should significant way. There may be issues at play on the approach justice institutions and procedures supply side in terms of how the content is to follow when the have legal issues packaged, how easy it can be found, and how warranting their attention. widespread distribution of such information has ▪ Conducting regular outreaches (such as been. There may also be issues linked to individual seminars) or providing mobile legal service incentive to improve their legal literacy. Robust clinics (for example one visit per week) in initiatives are needed to improve availability and the communities, particularly in rural areas, accessibility of information on legal issues. to give assistance to community members with issues related to court. With respect to supply and accessibility of legal ▪ The government should consider training on assistance services, the formal justice system basic legal issues in schools, for example, as officials, especially court officials, are the first stop part of the civic education curriculum. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 43 Chapter 6 Access to Justice Challenges: Cross- Country Comparison Across 36 countries, a slim majority (53 percent) of Africans express confidence in the courts, but in 10 countries, 40 percent or fewer trust the courts. One in three believe that “most” or “all” judges and magistrates engage in corruption. Afrobarometer, 2017. Introduction Whatever the degree of differences in the delivery jurisdictions in countries with plural legal of services in the formal justice systems of systems) Cameroon, Ethiopia, Sierra Leone, and Zanzibar, ▪ Judges lack of access to information on laws the challenges trend around common themes. and higher court decisions and their These include excessive delays in handling both incomplete understanding of alternative civil and criminal cases, corruption through systems and political interference, influence-peddling, or the ▪ Complex court proceedings, whether written soliciting of bribes by low-level court or oral, and their conduct in languages not administrative staff. understood by many African citizens. Limited access to services for much of the In Cameroon, general impediments include low population, particularly legal assistance, is also a salaries and nonpayment to judicial authorities and typical experience across the continent, with the lawyers, inaccessible services, and delays in the absence of remedies for handling common delivery of rulings. Some specific barriers to disputes, and the likelihood that judgments are of women and children are socio-economic, but poor quality. institutional discrimination also still exits. These shortcomings are a function of stretched In Ethiopia, they include weak public perception national budgets, which are usually small even as and practice of courts and judicial processes, lack the wage bill for civil servants may take a notable of courtroom facilities and limited human slice. They usually reflect: resources. Gaps in institutionalizing alternative dispute resolution are also prevalent, along with ▪ A shortage of judges, prosecutors, public limitations in the provision and coordination of defenders, and police and their lack of legal aid and legal literacy services. presence outside of urban centers ▪ Poor training of judges, clerical staff and People in Sierra Leone report especially frustrating lack of coordination with other sector actors, experiences with the formal legal system and as well as inadequate compensation for all women in particular face high barriers in both ▪ Shortage of lawyers—in both the public and customary and common law systems, including private sectors inability to afford legal representation, little ▪ Inadequate equipment and infrastructure, knowledge of their rights or understanding of legal and lack of basic materials (such as paper, procedures. ink, and office equipment) ▪ Inadequate and often inconsistent legal frameworks (including failure to define the In Zanzibar, leading grievances with the system that respondents to the survey expressed were Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 44 issues related to divorce and domestic disputes, and sexual violence, though reported less as a property issues, labor issues, and others. Domestic source of community trauma, were still important. Cross-Country Comparison on Barriers to Access Justice Examination of legal issues From the household surveys it is evident that It is clear that Cameroon and Sierra Leone respondents from all four jurisdictions have reported higher volumes of legal issues than encountered the entire range of legal issues and Ethiopia. This could be attributed to the Ethiopian grievances identified in the desk review. Figure 5 government’s commitment to harmonize basic shows the prevalence of each issue within each laws with international standards. It reinforces that country, as well as providing cross-country Ethiopia’s legal and policy framework is conducive comparisons. to protecting the rights of the vulnerable. Figure 5 l Legal Issues Reported by Households Abuse of power including corruption Unlawful arrest and detention Child labor Commercial sexual exploitation Trafficking (women and children) Corporal punishment (home and school) Bullying Sexual harrasment Sexual abuse (rape and abduction) Community level physical violence Domestic violence Business matters Property (land and housing) Damages and other monetary claims Labor Issues Contract Inheritance Child maintenance and custody Divorce and domestic dispute 0.0 10.0 20.0 30.0 40.0 50.0 60.0 Percent Sierra Leone Ethiopia Cameroon Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 45 Furthermore, there is greater similarity between them from transitioning to a fully democratic Cameroon and Sierra Leone on the frequency of country, and thus constitutional rights are not the type of legal issues reported. In both countries, being entrenched into society’s regular practices. a high percentage of respondents cited abuse of power (corruption), domestic violence, and For instance, the results produce telling differences community level physical violence as legal issues. in how households perceive fairness in the justice For Sierra Leone a high percentage also reported system—specifically that it works for the rich and issues with contract and divorce/domestic powerful. For both Cameroon and Sierra Leone, the disputes. In Cameroon, a high percentage cited dominant light blue represents a strong agreement issues such as unlawful arrest and detention, with the perception that the justice system works corporal punishment (home and school), and only for the rich and powerful. Whereas the property as legal issues encountered. Again, an dominant red in Ethiopia’s bar represents important factor here is that Cameroon and Sierra disagreement with this statement. Overwhelmingly Leone continue to face certain obstacles, Ethiopians’ overall perception of their justice particularly political instability, that it is preventing system is positive. Figure 6 l Perception of Fairness of the Judicial System—Households "Works only for the rich and powerful" 100 80 60 Percent 40 20 0 Cameroon Ethiopia Sierra Leone Strongly disagree Disagree Neither Agree Strongly agree Looking at reported legal issues in Ethiopia, less property (land/housing) and inheritance. Less than than 20 percent of households cited encountering 10 percent of respondents reported encountering the legal issues identified by the desk review. The corruption and community level violence. most common one encountered by Ethiopians was Evaluation of the Court System Also examined is the household perception of agree (69.7 percent) their court system has respondents across the three countries on improved. In Sierra Leone, respondents lean more improvements on the court system. As toward agreeing (34.4 percent), but a substantial demonstrated in the graph below, most Ethiopians number are indifferent (23.7 percent). As for Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 46 Cameroon, just over 40 percent strongly disagree majority of Cameroonians distrust the justice or disagree that the court system has improved, system as a result of corruption and discrimination, while 22.9 percent are indifferent. Given that a that result is unsurprising. Figure 7 l Perception of Improvements in the Court System—Households 100 80 Percent 60 40 20 0 Cameroon Ethiopia Sierra Leone Strongly disagree Disagree Neither Agree Strongly agree Next, views were analyzed on the degree of percent), while 27.9 percent found it easy, and accessibility to formal courts, social/local courts, 27.5 percent said it was difficult. However, in social and law enforcement agencies. The results from and local courts, accessibility was easy for 52.1 the household perceptions questions align with percent of households, moderate for 28.8 percent, those of accessibility. and difficult for 11.5 percent. Half of the household respondents felt accessibility to law enforcement In Ethiopia, respondents responded favorably on agencies was easy, while 22.3 percent found the perception of fairness in the justice system and accessibility moderate, and 17.6 percent said it court system overall. Most households found was difficult. access to the formal courts moderate (33.1 Figure 8 l Degree of Accessibility to Formal Courts—Households 100 90 80 70 60 50 40 30 20 10 0 Cameroon Ethiopia Sierra Leone Very Difficult Difficult Moderate Easy Very Easy Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 47 In Cameroon, households were much more divided percent describing it as very difficult, 31.2 percent about accessibility to courts and law enforcement. difficult, 28.8 percent moderate and 21.1 percent Most respondents found access to formal courts easy. Similarly, 18.7 percent found accessibility to either very difficult (27.8 percent) or difficult law enforcement to be difficult, 21.6 percent (37.3) percent. They were much more divided on moderate, 32.6 percent easy, and 17.6 percent accessibility to social/local courts, with 13.6 very easy. Figure 9 l Degree of Accessibility t Social/Local Courts—Households 100 80 60 40 20 0 Cameroon Ethiopia Sierra Leone Very Difficult Difficult Moderate Easy Very Easy In Sierra Leone, perceptions of accessibility social/local courts: 25 percent found it very between the formal courts and social/local courts difficult, 18.9 percent difficult, 17.3 percent vary greatly. Access to formal courts was seen as moderate, and 31.8 percent easy. On access to law very difficult or difficult by 78 percent of enforcement agencies, 32.9 percent of households households found access to formal courts either found it very difficult 28.4 percent difficult. very difficult (42.9 percent) or difficult (35.1 However, 13.7 percent were indifferent, and 20.5 percent). Views were split on the accessibility of percent regarded accessibility as easy. Figure 10 l Accessibility to Law Enforcement Agencies—Households 100 80 60 40 20 0 Cameroon Ethiopia Sierra Leone Very Difficult Difficult Moderate Easy Very Easy Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 48 Barriers to Justice This section examines the various barriers to half of the households in Cameroon or Sierra accessing justice that vulnerable groups face. Leone, such as the barriers of ‘complex of Commonalities and differences across the three procedure’ and ‘incompetence.’ However, non- countries are identified, and the data is used to serious barriers are intrinsically related to the inform recommendations and policy directions. barriers ‘lack of information’ and ‘access to legal aid.’ Thus, all the barriers are interconnected and As Table 1 in the introduction identified, there are cannot be viewed or resolved in isolation. numerous barriers vulnerable groups face when trying to access justice. The data revealed many As seen below, households in Ethiopia and Sierra commonalities across the three countries, but Leone do not see serious barriers to access certain barriers are more widespread than others. informal justice mechanisms. However, The highlighted barriers in Table 1 are those that perceptions for some barriers are notably distinct were identified by less than 50 percent of those in in Cameroon. More than have the respondents surveyed. While not categorized as a “serious in Cameroon regarded gender bias/discrimination, barrier” it should be noted than some were still weak execution of decisions, and long process and considered a strong barrier to justice by just under delay as serious issues. Figure 11 l Barriers to Informal Justice Mechanisms—Households 100 80 60 40 Cameroon 20 Ethiopia Sierra Leone 0 At first glance of data traditional/alternative justice However, in Cameroon, more than half report mechanisms, it is apparent that these are much having turned to these alternatives to the court less used. More than half the respondents in system. Of them, 30.3 percent reported doing so Ethiopia and Sierra Leone had either never used or sometimes, 15.5 percent usually, and 8.9 percent seldom use traditional/alternative justice said they always seek out traditional/alternative mechanisms. Thus, while there may be fewer justice mechanisms to resolve legal issues. A barriers to access, they likely are insufficient or significant factor in this is that most respondents lack the authority needed to resolve many legal in Cameroon said they no longer have sufficient issues. confidence in the ability of the judiciary to deliver justice fairly and in an independent way. Informal Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 49 and traditional justice mechanisms benefit from found 59.2 percent of men and 68 percent of greater public trust. That contrasts with Ethiopia, women were not frequent users of informal justice where recent judicial reforms clearly have mechanisms. improved public perception: the household survey Figure 12 l Households Using Traditional/Alternative Justice Mechanisms 100 80 60 Percent 40 20 0 Cameroon Ethiopia Sierra Leone Never Seldom Sometimes Usually Always The figure below shows household perception of formal/traditional and social justice mechanisms. the 13 identified barriers to access formal justice Therefore, since over half the surveyed households mechanisms. Analysis of survey data from each from each country regard most of the 13 barriers country confirms that people in vulnerable groups as serious, significant failures exist in the capability have experienced them all, but with variable of the formal justice system to meet the needs of degree of seriousness in each country. Clearly, the the population for legal services. The core barriers households in all three countries regard formal that SSA faces are examined in greater detail in justice mechanisms as burdensome than non- the next section. Figure 13 l Household Perception of Barriers to Formal Justice Mechanisms 100 80 60 40 Cameroon 20 Ethiopia 0 Sierra Leone Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 50 Core Barriers for Sub-Saharan Africa Table 2 in the introduction, as noted, isolates the It is interesting to note the three countries all share serious barriers identified by households from the similar serious barriers. These are: lawyer three countries. The barriers are categorized as expenses, corruption, and time/delay in the serious, moderate and non-serious barriers. delivery of justice. This is followed by absence or Serious barriers are those that 50 percent or more limited accessibility of legal aid services and court of those surveyed in each country see as expenses in all except Ethiopia. Left unchecked, significant. The highlighted data illustrates that in serious barriers can result in vulnerable groups many cases respondents in one country (usually feeling they are experiencing more barriers. For Ethiopia) ranked these barriers much lower than in instance, the behavior of judicial staff evidently the others. In this case, those with at least two points to a high level of corruption (alleged or highlights were not identified as serious but as real), which has the effect of causing moderate barriers. discrimination and poor-quality decisions, all of which may dent the confidence of users in the Significant gains have been made in Ethiopia in system. All these barriers are interdependent. ensuring access to justice of vulnerable groups, due to successive multifaceted reform programs The data showed vulnerable groups of the three implemented by the government. In particular, countries encountered the same serious barriers Ethiopians acknowledge the improvements in when attempting to access justice. The seven accessing the court system, and see courts as fair serious barriers that will be examined in greater and efficient. detail include: corruption, lack of trust, expenses (lawyer/courts), time, lack of information, and access to legal aid. Figure 14 l Cross-Country Analysis of Barriers 90.0 80.0 70.0 60.0 50.0 40.0 30.0 20.0 10.0 0.0 Corruption Lack of trust Expenses - Expenses - Time Lack of Access to Lawyer Courts information legal aid Cameroon Ethiopia Sierra Leone Source: NTF surveys One prominent barrier in Figure 14 above is lawyer much progress, it seems that most of the expenses. In all three countries around 70 percent population feel the costs of hiring a lawyer are too of respondents viewed this as a serious barrier. high. While general costs of justice—such as court While Ethiopia’s justice system has evidently made expenses—are seen as affordable, lawyer Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 51 expenses along with the near absence of pro bono The fundamental challenge of institutional services are regarded as a downside. strengthening in Africa is how to help organizations resolve service deficiencies without substantial With 83.8 percent of households ranking increases in their budgetary base and sustaining corruption as a serious barrier in Cameroon, it is reform efforts. Core public sector reforms within clear that its real or perceived effects are a formal justice institutions are a critical necessity. significant obstacle for the vulnerable seeking to These include introducing performance or results- access the justice system. Yet, corruption is still based budgeting including the monitoring of funds, ranked as serious by households in Sierra Leone human resources reform (for example selection (67.1 percent) and Ethiopia (66.6 percent). For a and promotion of personnel) and automation of justice system to succeed, its users must believe it court administration and case management (which can and will administer justice fairly and may often include information technology systems independently. and training). Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 52 Chapter 7 Gender and Marital Gaps in Judicial Services Introduction Very little is known about gender gaps in judicial Using data from the access to justice surveys service needs in SSA. However, widely carried out in Ethiopia, Serra Leone, Cameroon, documented gender gaps in socioeconomic Mauritania, and Zanzibar (described in earlier outcomes—such as labor market participation, chapters of this Book) gender gaps in judicial property rights, entrepreneurship, exposure to needs are explored and their heterogeneity violence (from intimate partners or other members associated with marital status in survey countries. of the community)—might trigger gender-specific Female respondents are more prone to report a needs for judicial services. Measuring these needs need for judicial services related to family and and understanding how they originate is therefore human rights-related legal grievances, whereas crucial in the design of policies empowering men more often need services related to property women. (World Development Report 2012). 39 rights, business, and labor issues. Women’s marital status might magnify or reduce Widows and divorced women report more frequent gender gaps in individuals’ needs for judicial need than currently married and never-married services. Married women might be engaged in very women do for issues related to domestic disputes, different economic activities than never-married physical violence at the community level, child women, implying different judicial needs for labor, inheritance, and property rights. These business and issues related to labor contracts. differences highlight the specific vulnerabilities Marriage might also protect against some forms of that women in these countries face when they are gender-based violence against women, albeit not married, including exposure to violence and offset by potentially higher potential for intimate maintaining secure access to land and property. partner violence. These differences across marital status can be less pronounced for men, implying a gender gap in judicial needs across these groups. Data and Method Data Household data was utilized from the Access to these are not representative at the national level. Justice and Voice of the Vulnerable survey.40 It is In all five surveys, respondents were asked about important to keep in mind that while the data does their gender, age, marital status, and level of provide unique insight into individual legal needs, education (table 2). Interestingly, the sample 39See World Development Report 2012: Gender Equality and Development. Chapter 4: Promoting women’s agency. 40For a detailed description of the survey, including sampling strategy, questionnaires, data collection implementation, and timeline by country see http://voicesofthevulnerable.com/. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 53 shows variations in gender and marital status heterogeneous gender gaps in the need for judicial across countries, which was used to explore services. Table 2 l Descriptive Statistics Cameroon Ethiopia Sierra Leone Zanzibar Mauritania Variables Female 49% 30% 38% 49% 59% Male 51% 70% 62% 51% 41% Age 32.8 29.3 36.7 39.1 33.59 Marital Status—Male Never married 49% 90% 35% 23% 41% Married 47% 9% 53% 73% 57% Divorce 2% 1% 9% 4% 1% Widow 2% 0% 3% 0% 1% Marital Status—Female Never married 41% 47% 26% 12% 12% Married 49% 42% 53% 75% 68% Divorce 4% 4% 8% 8% 15% Widow 6% 7% 13% 5% 6% Education Level Not literate 2% 7% 30% 10% 20% Read and write 0% 4% 6% 4% 27% Primary school 12% 4% 13% 32% 15% Junior secondary school 19% 18% 22% 46% 10% Senior secondary school 18% 41% 21% 2% 4% College diploma 50% 26% 9% 6% 3% N 1,207 1,289 596 452 973 Source: NTF surveys . Outcome variables The main outcome variables relate to respondents’ harassment, commercial sexual exploitation, and needs for judicial services are expressed in the child labor, show low prevalence rates, potentially answer to the following question: Have the reflecting underreporting. following legal issues and grievances ever arisen as judicial needs for you or your household? Notice that the question is asked for the Respondents could answer yes or no to this respondent and members of his or her household. question for a list of 19 legal issues and grievances The gender gaps will thus tend to be attenuated for (table 3. The legal issues and grievances can be married, divorced, and widowed respondents who sorted into three broad categories: (i) family, (ii) reported needs for themselves and for household human rights and (iii) civil and labor contracts. members of the opposite gender. Never-married Judicial needs that arise more frequently for the respondents might also report on judicial needs overall sample are divorce and domestic dispute, from opposite gender household members, such as domestic violence, abuse of power, and property. parents and siblings, but with a lower probability. Other needs, such as related to sexual Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 54 Table 3 l Reported Need for Judicial Services Respondents Reporting this Need Divorce and domestic dispute 22% Family Child maintenance and custody 16% Domestic Violence 20% Physical violence at the community 19% Sexual abuse (including rape and abduction) 8% Sexual harassment (at work, in school and other places) 7% Bullying 10% Human rights Corporal punishment at home or in school 6% Trafficking in women and children 3% Commercial sexual exploitation (such as prostitution) 5% Child Labor 7% Labor Issue 14% Business matters related to licensing, supplies, taxation 13% Abuse of power including corruption 22% Inheritance 16% Civil and labor contracts Contract 17% Damage and other monetary claims 14% Property (land use, related housing and ownership rights) 22% Unlawful arrest and detention 16% Statistical models used for gender and marital gaps identification First, e for estimating gender gaps in judicial needs Where , , are dummy variables the following ordinary least squares (OLS) models indicating, respectively, whether respondent is were used: female married, male married, or male never married. Widowed and divorced women from this , = + + + + (1) analysis were excluded but were considered in the later analysis. This specification implies a Where , is a dummy variable equal to 1 if comparison with the reference group female never respondent in country answers “yes” to the married. To compare the magnitudes of the OLS question on whether judicial needs for legal issue estimates (2) three independent two-sided t-test or grievance have ever arisen for the respondent were run for the three null hypothesis 0 1 : 0 = − or her/his household. is respondent’s gender, , 0 : 0 = 2 − and 0 : 0 = − . 3 equal to 1 if the respondent is female. is an array of control variables including age and education Finally, the specific needs for judicial services of level. is a dummy variable indicating country for divorced and widowed women is estimated, when respondent . compared to never married or currently married Second, for exploring the marital heterogeneity of gender gaps the following model was used: , = + + + + + + (2) Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 55 female respondents. This is done so by using the one independent two-sided t-test is run for the null following model on the female sample only:41 hypothesis 0 1 : 0 = − . , = + + + + + (3) Age and education level are the only controls available in all NTF surveys. While recognizing the Where and are dummy variables potential endogeneity and bias issues related to indicating, respectively, whether respondent is missing explanatory variables, the goal here is not female married and female divorced or widowed. to identify causal relationships between the Consistent with the previous model, the reference variables observed, but to highlight correlations of group here is female never married. In this case, interest in the data. Results Gender gaps in judicial needs Figure 15 shows the percentages of the gender gap corresponds to higher judicial needs for females. estimated in model (1). only statistically significant For instance, female respondents report gaps are reported. In this model, male 28percentage more often than men to have judicial respondents are the comparison category, needs related to child maintenance and custody. meaning a bar that is to the right side of the 0 Several interesting correlations of interest emerge. Figure 15 l Gender Gap Estimates by Judicial Need Unlawful arrest and detention -35% Property (i.e land use, ownership rights, etc) -21% Damage and other monetary claims -30% Contract -28% Abuse of power -24% Business matters -37% Labor Issue -29% Sexual harassment 40% Sexual abuse 44% Domestic Violence 13% Child maintenance and custody 28% -60% -40% -20% 0% 20% 40% 60% More likely for male More likely for female 41 Divorced or widowed males represent a very small share of the sample and are thus not considered in this analysis. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 56 Note: Ordinary least squares estimate controlling women are generally more prone to be victims of for age, education level, and country fixed-effect. sexual and gender-based or intimate-partner Comparison category: Men report gaps significant violence. at the 0.1 level. Reading example: Female respondents report judicial needs 28 percent more In contrast, male respondents more often to need often for child maintenance and custody than men judicial services related to civil and labor contracts do. than female. The observed differences go from 21 percent for issues related to business (licensing, Female respondents are more prone to report supplies, taxes) up to 37 percent for business judicial needs related to family and human rights. matters. These correlations of interest are They more often report judicial needs related to consistent with widely documented gender gaps in child maintenance and custody (28 percent more formal entrepreneurship (female businesses being than men do), domestic violence (13 percent more concentrated in the informal sector), labor market than men), and sexual abuse (44 percent more participation, property rights, implying lower than men) or harassment (40 percent more than exposure of women to legal issues and grievances men). These estimates align with the fact that related to civil and labor contracts. Heterogeneity across marital status Figure 16 reports OLS estimates from model (2). corresponding gaps range from 55percent (sexual Female and male respondents were compared by harassment) to 27percent (sexual abuse).42 marital status and the category used for comparison is female never married. In this The gender gaps in judicial needs related to civil specification, a bar toward the left thus means and labor contract issues seem to hold irrespective judicial needs are lower when comparing to never- of marital status. Indeed, similar to the results married women. For example, commercial sexual reported in figure 15, married and never-married exploitation is 47percent less likely to arise as a males report significantly more judicial service judicial need for never-married males than for needs related to civil and labor contracts than never-married females. never-married females. The corresponding gaps go from 18percent (inheritance) to 79percent Married females, married males, and never- (business matters). For these needs, however, married males are less likely to report judicial there was no significant difference when needs related to sexual abuse, sexual harassment, comparing married with never-married females. and bullying than never-married women. The Interestingly the gender gaps are magnified for married men compared to never-married men. 42 Note no statistical difference was found for the gaps reported for married females, married males, and never-married males, when compared to never-married women. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 57 Figure 16 l Gender Gap Heterogeneity across Marital Status: Married and Never Married, Men and Women Never Married Male Married Male Married Female 63% Unlawful arrest and detention 61% 19% Property (i.e land use, ownership rights, etc) 60% 25% Damage and other monetary claims 51% 34% Contract 70% 18% Inheritance 38% 23% Abuse of power including corruption 63% 55% Business matters 79% Labor Issue 51% Child Labor 38% -47% Commercial sexual exploitation -30% -41% Trafficking in women and children -28% Bullying -34% -34% -55% Sexual harassment -37% -51% -48% Sexual abuse -44% -27% 22% Physical violence at the community 16% Child maintenance and custody -34% Divorce and domestic dispute 77% 58% -100% -50% 0% 50% 100% Need reported less often than Need reported more often than by Female Never Married by Female Never Married Note: Ordinary least squares estimates controlling for found significant at the 0.1 level. Reading example: age, education level, and country fixed-effect. commercial sexual exploitation is 47 percent less likely Comparison category: Female never married. Sample to arise as judicial need for the group of never married excludes widowed or divorced respondents. Gaps were males than for never-married female. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 58 Divorced and widowed women Figure 16 displays OLS estimates of the coefficients to the category of never married females. Here a in equation (3). The objective here is to focus the bar toward the right means that the category analysis on the specific needs expressed by included is more likely to report the corresponding widowed and divorced women, when compared to judicial need than female never married. For married and never-married women. Needs were example, divorced and widowed females are 88 compared for judicial services for women across percent more likely to report inheritance as judicial the different marital status, relative need that never-married women. Figure 17 l Gender Gaps across Marital Status: Divorced or Widowed, Married and Never Married, Women Only Divorced or Widowed Female Married Female Property 38% Contract 36% Inheritance 88% Child Labor 103% Commercial sexual exploitation -50% Sexual harassment -46% Sexual abuse -27% Physical violence at the community 47% 21% Domestic Violence 14% Child maintenance and custody 59% Divorce and domestic dispute 179% 73% -100% -50% 0% 50% 100% 150% 200% Need reported less often than Need reported more often than by Female Never Married by Female Never Married Note: Ordinary least squares estimates controlling Divorced or widowed women express specific for age, education level, and country fixed-effect. needs. They are more likely to report the need for Comparison category: Female never married. judicial services related to divorce and domestic Sample excludes male respondents. Gaps are dispute than never married (179 percent) and significant at the 0.1 level. Reading example: married females. They are more prone than never- divorced and widowed females are 88 percent married women to report judicial needs for more likely to report inheritance as a judicial need grievances related to child labor (103 percent), than never-married women. inheritance (88 percent) and property (38 percent). For these needs, however, married and never-married women do not differ. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 59 Widowed and divorced women equally report women report higher needs than never-married judicial need for protection from sexual abuse, ones. Divorced and widowed females 47 percent sexual harassment, and commercial and sexual more often report judicial needs related to physical exploitation than never-married women. For violence at the community level than never- intimate-partner violence, however, married married ones. Conclusion This chapter explores gender gaps in judicial needs married women more frequently report judicial in the survey data collected in Cameroon, Ethiopia, need for human-rights-related issues than married Sierra Leone, and Zanzibar as well as Mauritania. women. On the other hand, compared to currently Consistent with existing gender gaps in married and never-married women, widows and socioeconomic outcomes and gender-specific divorced women report a more frequent need for exposure to violence, female respondents are judicial services related to domestic disputes, more prone to report need for judicial services physical violence at the community level, child related to family and human rights legal labor, inheritance, and property rights. grievances, whereas men more often need services related to property rights, business, and labor Strong disparity in judicial needs, such as issues. documented in this report, should motivate tailored interventions that promote women’s Never-married women and widows and divorced agency in SSA. In particular, the design of women have distinct needs for certain types of programs informing women about their rights and judicial services, likely reflecting the unique aiming to increase their access to judicial services vulnerabilities of their marital status. Never- should reflect specific needs. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 60 Chapter 8 A Way Forward to Justice for All and Conclusions Underfunded justice systems exacerbate structural instability in society, inhibit investment, perpetuate conflict, and deepen a sense of depravation among women, the young, small business owners, and people living in poverty. However, rule of law reforms show potential to help courts deliver affordable, timely and quality services, particularly when policy interventions are built on good information and take account of local conditions. Effective access to counsel, and affordable court costs or free services to settle dispute that allow fair, impartial, and enforceable solutions to legal problems are also key to promoting access to justice. Systematically addressing factors within formal justice systems that raise costs, discriminate against vulnerable groups, delay the resolution of disputes, or otherwise impede access, can promote sound policies that bring justice closer to the people. However, before the barriers to justice can be dismantled, causal relationships need to be identified and solutions tested so that reform measures help improve access to services rather than cause harm. Alternative dispute resolutions have widened access to justice by lowering the cost of reaching settlements and making services available in locations far from urban centers. Trust: The Foundation of Justice Lack of trust in the judiciary is considered the Figure 18 presents the relationships between leading barrier to the access to justice and is different barriers, as they all contribute toward the strongly related to other barriers, while corruption prevention of access to justice, these barriers are is the most direct cause for distrust in the judiciary. not independent of each other. In a nutshell, the Lack of trust also results from lack of information. barriers link to each other in a vicious cycle. Figure 18 l Barrier to Barrier Relationships, Lack of Trust is the Leading Challenge for Formal Courts Source: Authors Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 61 Situations where people must pay for information give a sense of satisfaction to court users and build about their rights contribute to higher costs of confidence in service delivery. proceedings and breed doubt about the fairness of judgement and decisions. Lastly, lack of trust results from insufficient access to legal aid as an alternative to reduce the cost of Improving staff discipline regimes to deter judicial services. Effective access to legal aid can mistreatment of citizens and discrimination, significantly improve access to justice and build especially of women and the poor, in contrast, can trust. Figure 19 l Barriers to Seeking Justice in Sub-Saharan-Africa Source: Authors However, the adoption and leveraging of circle when improving the ability to obtain justice strengthening measures can create a virtuous helps build trust in institutions in the long term. Reform Actions Examples of good practices that many developing Systemic corruption is a serious barrier to effective and developed countries have adopted to address access to justice in Sub-Saharan Africa. Police, the main sets of barriers of access to justice court personnel, prosecutors and judges are often identified in this study, can offer useful lessons for bribed to delay the filing, investigation, and policy makers. resolution of cases. Lack of remuneration of judges and staff is an important consideration in many International standards have long reflected the countries in Sub-Saharan Africa and has significant necessity of an independent judiciary with judges repercussions since the menace of corruption able to adjudicate cases free from any improper raises costs and delays the delivery of justice. influences, interference, inducements or threats. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 62 Tackling Corruption. A corrupt judiciary perverts reinforces a perception of impunity, potentially the efficient course of justice because it harms resulting in individuals’ resort to self-justice, the public welfare, causes the improper and unfair promotion of the legal interests of the rich over delivery of judicial decisions, and denies those of the poor, and ultimately social turmoil. individuals their fundamental right to a fair and impartial trial. According to a Transparency International survey, 21 percent of the African population that has had For example, lack of funding in Cote d’Ivoire seems contact with the judiciary admitted to having paid to pave the way to corruption, as confirmed by a bribe to a judicial official (Transparency Ivorian judges who have declared that “you need International 2007). Various judiciaries have put in to have a sense of morality that is much higher place policies to circumvent such practices. For than average to refuse bribes for cases that involve instance, the government of Ghana has launched a considerably high stakes, given that [judges] commercial bank exclusively to prevent judicial themselves struggle to cover their monthly officers from handling for court fees. Reviews of expenses and that their remunerations is very low” judicial salaries and benchmarking with other (ONUCI, 2017) Other factors such as political justice sector officials and the private sector are affiliation, ethnic links, and social pressures are considered good practices to keep a relatively agile binding challenge in the fight against corruption. human resource system. Some jurisdictions are encouraging codes of ethics among judges and The harm done by a corrupted judiciary on access other justice sector stakeholders. Different to justice cannot be overstressed. By profoundly methods used to combat corruption in justice undermining public trust, judicial corruption sector institutions are discussed in Box 3. Box 3 Anti-corruption in Sub-Saharan Africa Justice Sector Institutions1 Corruption has direct and severe consequences on access to justice. Among them, poor and costly service delivery for citizens, weakening of the rule of law, and depletion of social and economic development. It is therefore necessary to understand justice sector corruption in Africa in all of its forms in order to appropriately address it. Justice sector corruption is a function of three main factors. These include unorganized corruption that manifests itself through general disorder and lack of oversight and accountability mechanisms (mainly in fragile states and conflict zones); higher levels of organized corruption based on the direct involvement of political elites, e.g. political interference or undue influence; and lower levels of corruption that imply a mixture of petty corruption, incompetence and inefficiency due to archaic processes and low budgets. As a result of a systemic tendency, corruption is extremely hard to eradicate all the more so that all actors of the justice system are susceptible to it. Said actors range from policemen deciding whether to arrest and detain a suspect, to court staff processing a claim or handling files, prosecutors deciding to press charges, and judges reviewing a case and making a determination. Various methods have been adopted to combat corruption depending on the type that affects a particular country. In countries that suffer from unorganized corruption, programs have been designed to strengthen justice sector institutions capacity (basic case management and filing systems, more transparent selection and hiring processes of judges and court staff, performance evaluations, enhanced training). In countries with high levels of corruption, measures have been adopted to: strengthen judicial independence; establish investigative and accountability entities (e.g. anti-corruption agencies) to oversee police, public prosecution, and judicial staff behavior; and reinforce legal and judicial information by publishing laws, judgements and statistics. Eventually, in countries with lower levels of corruption, efforts tend to set up training programs, support public information on judicial corruption, improve financial and human resources management as well as monitoring and evaluation. 1 Adapted from World Bank. 2010. Africa Regional Justice. World Bank, Washington, DC. Note: A Review and Lessons Learned. World Bank, Washington, DC. 61 –64. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 63 Help Citizens to Know Their Rights. Improving information, eliminating discrimination and bias, As governments worldwide seek to enhance public and promoting gender parity in the judiciary trust in their institutions through the inclusion of requires priority attention of the call for justice for women candidates, various judiciaries across the all by 2030 embodied in the 2015 Sustainable globe have also pushed toward gender parity. However, while some courts do show higher rates Development Goals is to be realized. of women on their bench (Greece and Serbia for Citizens, especially the vulnerable segments of the instance) (CEPEJ 2012), women represent only population, who do not know their rights are more about 27 percent of judges worldwide. Particularly, likely to be abused and mishandled by justice the percentage of female judges vary from less than 25 percent (Armenia, Azerbaijan, Japan, officials. Citizens who distrust their courts tend in Nigeria, the Russian Federation, Tajikistan, Togo effect to forego their rights on the assumption that and the United Kingdom) to more than 75 percent they will not receive just decisions. (Jamaica, Latvia, Saint Kitts and Nevis, and Slovenia) (United Nations 2015). It is therefore of critical importance to keep promoting a gender- Lack of information is a binding constraint when it balanced judiciary and increase the representation comes to access to justice by vulnerable groups. of women. Domestic violence victims, small business owners who need to know their rights and where to file a Two main schools of thought exist as to why complaint, young people in conflict with the law, diversity on the bench is important. The first one and the poor person who wants to complain about suggests that women’s representation on the mistreatment in the court. These groups are all bench is crucial because women judges’ decisions disadvantaged by not knowing how to obtain tend to promote public policy objectives in favor of justice or having clear information about how much broader social gender equality.43 The second it will cost in fees for court appearances and legal school of thought supports the view that gender representation. parity increases public confidence in the judiciary because gender-balanced courts better reflect of Better information is critical, both in official and the composition of population as a whole. If women local languages. Given the emergence of mobile tend to render decisions in favor of equality for all, technology, data collection and dissemination via the public will be more confident in its judiciary’s through mobile phones could be a good way of impartiality and fairness, and ultimately, in its disseminating citizen education about the law, and legitimacy to interpret and enforce laws. In could serve as a check on judicial staff behavior if addition, studies have shown that gathering used as a channel to invite feedback on court diverse perspectives improves performance services. (McKinsey & Company 2007). Studies have noted several reasons for citizens’ Countries in Asia, North America, Europe, and hesitation to approach the court. Among them, a Latin America have launched “diversity on the negative perception of the way the judiciary bench” campaigns which could offer useful lessons operates (Bingham Centre for the Rule of Law for African judiciaries. Such campaigns work on the 2014), and cultural traditions stigmatizing premise women are more likely to be satisfied that segments of the population such as women, and they have had an opportunity to be heard, and as reflective of a societal imbalance (United Nations a result are more likely to resort to the courts. General Assembly 1993). For instance, women’s distrust in the judiciary is an extremely serious Progress is slow, and women still remain largely problem in gender-based violence cases—including underrepresented at the higher echelons of the honor crimes, genital mutilation, and rape—that judiciary globally. tend to not get reported by fear of retaliation or exclusion from a community. Ensuring that the guardians of the law fairly represent society as a whole. This requires Therefore, eliminating discrimination and bias is overcoming long-standing institutional biases of a necessary to increase trust and enhance access to male-dominated profession and selection process. justice. The inclusion of all races, ethnic groups Beyond this, traditional barriers that preclude and gender within the justice system empowers women from accessing the workforce in general once disenfranchised populations, ensures the equally apply to their integrating the judiciary: socioeconomic development of all, and ultimately limited access to education, prejudicial family increases a perception of legitimacy. Given its roles, and a traditional division of labor that pivotal role in democratic governance, the judiciary disadvantages women. must lead the way and reflect society as it is. 43Though a nuance shall be made with a dangerous conclusion that a judge’s gender is a primary determinant in such judge’s deci sion-making process. Therefore, the argument that men and women decide cases differently because of their gender shall be dismissed (Doherty 2012). Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 64 in public university and training institutes44 while While reaching gender parity requires time, encouraging the private sector to training lawyers progress starts by educating women and men and judges. equally on the importance of a gender-balanced society and judiciary. Institutions such as judicial Lack of technology and physical training institutes and governments, as well as law infrastructure. The absence of modern tools such schools, and law firms have a responsibility. Efforts should be made to retain female talent as early as as electronic filing systems prevents judges and possible during law school and encourage the use court staff from appropriately fulfilling their duties. of modern technology that enables women to Automation of court notification services and the balance family and work. Continuing women reduction of hard-copy paperwork for criminal and mentorship and the attitude that diversity is a civil procedures seem necessary. In Rwanda, the currency that improves the judiciary’s stature must government introduced an electronic case be promoted by governments and judiciaries. management system in 2017 for judges and Cut Delays to Justice. Reducing time delays and lawyers to complement an electronic filing system improving geographic coverage of courts implemented in 2013. In 2012, Kenya also strengthens justice service delivery partly because introduced a case management system designed citizens’ perception of how long it takes to process to increase the efficiency and cost-effectiveness of a case often discourages them from lodging claims. commercial dispute resolution (World Bank 2017). Delays and chronic backlogs can cause basic In 2019, Tanzania introduced integrated justice human rights violations in addition to significant centers (one stop shop of citizen centric justice costs for citizens and courts. In reaction, countries services) with JSDS II case tracking system to around the globe, including in Africa, have initiated increase case processing and help monitor the improvement programs that could be adapted to performance of magistrates. In Europe, Portugal Sub-Sharan Africa. has made a significant investment in modern tools Reasons for delays in justice include a shortage of in a policy centered on electronic payment qualified judges, prosecutors and police, and their platforms and electronic filing of civil cases. scarcity outside of urban areas. Lack of resources Overly complex procedures. To further and infrastructure, overly complex procedures, decrease courts’ caseload and eliminate backlog and the corrupt practices described above also and delays, governments have pushed for deter court staff, judges, and police from alternatives to the courtroom for settling disputes adequately pursuing their duties. in matters such as labor and family law. Simplified Lack of judges and appropriate training. The procedures are encouraged through the creation of lack of judges has historically been the main fast track courts to deal with cases of limited value reason for delay (National Center for State Courts and other specialized divisions within existing 1987). Low salaries, difficult working conditions, courts. An initiative in the South African Justice and general insecurity have caused a high Department started in 2006 reduced court percentage of judges across to resign. In 2010, the backlogs and speed up cases by setting up to 50 ratio of judges to people in Africa was excessively high-priority backlog courts, some of which were low, with about 1 judge for 100,000 inhabitants made to permanent. In 2015, justice officials and (World Bank 2010). compared to a European Legal Aid South Africa reported backlog courts average of 21 (CEPEJ 2016) and a Latin American improved management of the flow of cases.45 average of 8 (World Bank 2011). Lack of training Importantly, those steps should be combined with is also reflected in severe judicial inefficiency and the introduction of procedural law changes. In poor case flow management. Ghana and Tanzania Ghana, in addition to creating specialized among others have pushed for new faculties of law 44 The Institute for Judicial Administration in Tanzania is among the most well-regarded training institute in Africa, more information at http://www.ija.ac.tz/# 45 See National Assembly Question for Written Reply Parliamentary Question No: 2344, Ms. Marchesi (DA) to ask the Minister of Justice: “(a) What detailed measures have been put in place to address the 18,7% increase in the backlog of the number of cases at the National Prosecuting Authority in the 2015–16 financial year […] ‘During 2015/16, there were 27 approved regional and 25 district backlog courts. The district backlog courts excelled during 2015/16 by finalising a total of 14,711 cases comprising 10,525 verdict cases with a conviction rate of 95.3% and 4 186 ADRM cases. This represents a finalisation rate of 3.8 cases per court, per day. The regional backlog courts finalised a total of 2,421 cases comprising 2,363 verdict cases with a conviction rate of 75.2% and 58 ADRM cases. This represents a finalisation rate of 0.6 cases per court, per day. The increase number of trials finalised in the high court had a positive impact on the reduction of percentage backlog cases, from 26.4% during 2014/15 to 21.3% in 2015/16.” Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 65 divisions,46 the Justice Department established a complaints on the assumption that “delays and mandatory pretrial settlement process in the postponements mean repeated trips to [court] country’s commercial court that has stopped cases every month, perhaps just to find out that it is not having go to trial. Another example in Europe, meeting” (Meschievitz and Galanter 1982). In France’s Justice Ministry launched a divorce 2019, the Judiciary of Tanzania has established procedure in 201747 whereby parties no longer mobile courts (Justice-on-wheels) to bring court have to go before a judge so long as their services t closer to the people where they live and agreement is recorded by lawyers and certified by work.. The Democratic Republic of the Congo has a bailiff. established temporary courts within the formal justice system that operate for limited periods in Long distance from formal courts. Courts isolated areas. Funded by local and international remain remote for a majority of African citizens. NGOs, such courts have helped facilitate over Long distances between villages and courts, travel 1,000 rape trials since their inception in 2008.48 costs, and lack of proper information on legal Judges, defense lawyers, and other justice sector options likely discourage rural people from lodging professionals have received training. Support for Alternatives to Courts Promotion of alternative dispute mechanisms can in resolving their disputes. This flexible mechanism cut both delays and costs. Traditional justice allows parties to tailor a procedure uniquely suited systems in Africa cater to about 80 percent of the to the settle disputes. Nongovernment population, Formal alternatives for dispute organizations, other justice sector entities, and resolution to appearing in court—both court- community organizations also offer mediation annexed and community-based—bridge the gap services outside the court system that reduce the between the formal justice system. costs of representation, eliminate court fees, and reduce delays. Their role is especially potent when Typically, alternatives for dispute resolution the judicial system fails to serve its users encompasses arbitration, mediation, conciliation, adequately—in the event of case backlog impeding and negotiation mechanisms. Alternatives have proper functioning of the court system complex speed up case management, saved scarce judicial procedures taking too many judiciary resources— resources, and cut high costs in saturated court and for litigants who cannot afford the court systems. For example, mandatory mediation is system, are illiterate, or are unable to reach courts courts is helping cut delays and unburdening the far from their homes. court docket. Studies estimate the total savings to users range between 3 and 50 percent.49 In the Figure 20 compares the results with those of case of Africa, use of alternative dispute traditional litigation and illustrates the benefits of mechanisms is gaining support. alternative dispute mechanisms:50 Court annexed mediation centers offer attractive prospects to litigants wanting to play an active role 46 Including the Fast Track Division of the High Court, the Land Court, the Financial and Economic Crimes Court, the Industrial Court and the Human Rights Court. 47 Law no. 2016–1547 of 18 November 2016 on the modernization of justice in the twenty-first century, OJ 19 November 2016, Art. 50 para. 1 "Divorce by mutual consent by a deed under private signature countersigned by lawyers, deposited at the rank of minutes of a notary.” 48 See M. Maya “Mobile Courts in the Democratic Republic of Congo: Complementarity in Action?” American Bar Association Rule of Law Initiative, “Mobile court trials are often held under a tent, with scores of rapt villagers attending the trial for hours at a time without the comfort of shade, food or water. For most villagers, this is the first time they have seen a judge or lawyer. Few if any have ever observed a trial, with many unaware that a soldier, commander or other combatant can be held accountable for their misdeeds; in fact, the news that the accused do not enjoy impunity comes as a great surprise to many villagers, although public education campaigns and word of mouth are slowly dispelling this noxious myth.” https://worldjusticeproject.org/sites/default/files/mobile_courts_in_the_democratic_republic_of_congo_maya.pdf 49 Cited in Love (2011). 50 See Paths to Justice: What people do and think about going to law, by Hazel Genn (1999) . fn. 3, at p. 8, adapted from Frank Sander and Stephen Goldbert “fitting the forum to the fuss: a user-friendly guide to selecting an ADR procedure”, Negotiation Journal, January 1994, 49–68. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 66 Figure 20 l Alternative Dispute Resolution versus the Courtroom Source: Hazel Genn (1999) Key: 3 = highly like to satisfy goal; 2 = likely to satisfy goal; 1 = unlikely to satisfy goal; 0 = highly unlikely to satisfy goal. Note: ADR = Alternative dispute resolution. In Ghana, mediation weeks are held regularly. For In West Africa, community and professional example, in one such exercise in 2003 there were associations are offering dispute settlement resolution of 300 pending court cases in just about services, and about 16 regional and local centers 5 days and about 90 percent of surveyed users and over 65 law firms provide them too expressed their satisfaction with the process. (Sutherland and Sezneck 2003). Tanzania has set Furthermore, 155 commercial and family cases up court annexed mediation and plans to expand were included in the mediation exercise in 2007, of to provide swift and cost-effective justice. It is also which about 100 cases were fully mediated or setting up mobile courts to bring justice services concluded in settlements agreements, while 37 closer to the people, especially the poor and were taken back to court. 51 vulnerable segments of the population in rural and peri-urban areas. 51 See Uwazie, E. (1988), op. cit. footnote No. 4, at p. 3. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 67 Information Plays a Critical Role Lack of information is a binding constraint when it government. Today, data on court fees in SSA comes to access to justice for vulnerable groups, remain somewhat difficult to find and may be such as domestic violence victims or small unreliable in some countries. Public availability of business owners who need to know their rights and court fees data, however, is essential for upholding where to file a complaint. the rule of law and maintaining good democratic governance. Publicly accessible information is crucial and helps increase confidence in judges, court personnel and Assessment of official information is essential for government. However, it is essential for upholding evaluating progress in court performance and the rule of law and maintaining good democratic planning for new reforms. In addition, governance. rationalization of court fees such as filing fees, initiation of an appeal fees, copying and It is important to keep in mind that publicly translations, official certification fees, and expert accessible information is crucial and helps increase witness and witness costs directly enhances justice confidence in judges, court personnel, and access. Court Costs Need to Fall The study indicates that effective access to justice analysis because of the contrast in their legal is not easily achievable in SSA due to high costs. systems and development: France, Cote d’Ivoire, Gabon, Singapore, the United Kingdom, and the Research suggests the high cost of pursuing legal United States. The analysis is shown in Appendix redress through courts, including the cost of C. obligatory legal representation, increases judicial inequity by giving significantly greater advantage The results show that lower income countries such to parties that can afford access to courts and as Gabon and Cote d’Ivoire still struggle to improve adequate legal representation. the structure of their judiciary, and as a result suffer from relatively high court fees. However, in One major component of the cost of justice issue high-income countries as in lower-income is the court fees that are charged to users, namely countries, individuals’ right to access justice might the out-of-pocket costs that litigants incur for the be foregone in the face of high court fees. In the judicial administration of their case. Specifically, words of the Brookings Task Force on Civil Justice court fees represent the costs to adjudicate a case Reform, “high transaction costs – manifested in and operate the court. Those costs are passed on high out-of-pocket legal fees and the time to parties, and, depending on the country’s consumed by delay- are the enemies of justice” legislation, will either be split between them, or (Brookings Institution 1989). The public will paid in whole by the losing party. A comparative therefore prefer to forego their judicial recourse look of court costs from different legal traditions when faced with the monetary investment that provided ahead, indicates a large variation across seeking justice represents. national jurisdictions. To illustrate these variations, eight countries were selected for Well-funded legal aid guarantees citizen rights The right to free legal assistance is fundamental to It generally encompasses two distinct judicial a well-functioning judiciary because it prevents mechanisms: the right to access the law access to justice from depending on financial (information and advice, negotiation or mediation) means. and the right to assert legal rights (litigation). Legal aid schemes ensure equality before the law, Legal aid is the free or subsidized provision of legal the right to counsel, and the right to a fair trial. services to citizens who could not otherwise afford Through the provision of assistance to those in them and offered to guarantee their access to need, it is observed that legal aid contributes to justice (Danish Institute for Human Rights 2011). minimizing overall legal expenditures by reducing Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 68 the length of police detentions, judicial procedures outreach, extended services to citizens, and and therefore congestion in the courts, prison extensive legal training. By contrast, surveys show overcrowding, and ultimately government that reducing legal aid funding results in significant spending. decline in jobs.52 In addition to ensuring access to justice for all, Although these findings are in a developed country legal assistance to the poor generates substantial setting it has a useful message for developing economic benefits. By the same token, it is also countries as well who strive to improve social and important to stress the connection between legal economic wellbeing of its citizens and improve aid and the creation of jobs. A survey of legal aid economic outcomes. The importance of legal aid in developed countries, shown in Appendix D, for a more effective justice system cannot be suggests a growing number of legal aid providers, overstressed in in view of the above noted factors. centers, and organizations will result in better Strong Institutions Lead the Way Courts in the surveyed countries appear to be standards introduced, and e-services expanded to failing to provide justice for all. Lack of resources all parts of the country.53 entrenches a culture of impunity that makes legal redress the privilege of the rich. Vulnerable groups Expansion of mobile court services in peri-urban are more often than not excluded because justice and rural areas can help reduce legal costs. Where services are unaffordable or out of reach in other distance from formal courts limits people’s access, ways. mobile “justice on wheels” programs can significantly improve vulnerable groups’ ability to Yet this survey of the legal systems of Cameroon, seek justice. The mobile services cut their travel Ethiopia, Sierra Leone, and Zanzibar shows some time and transportation cost to seek protections albeit limited successes in promoting the rule of under the law in court. As noted above, initiation law and strengthening institutional capacity. of mobile court services in Tanzania has enhanced Examples from this study of good practices and access to justice of thousands of people, since their institutional changes, in the context of the launch in 2019. complexity of legal systems based in the legacy of colonial law and customary dispute resolutions, The development of legal aid is paramount to offer useful lessons for policy makers. ensuring the rule of law. Legal assistance to the poor can also generate substantial economic In Tanzania, a judiciary-led effort, supported by benefits for private citizens and for the state as it the World Bank, was successful in improving court reduces public costs and encourages the creation services to citizens and enhancing their confidence of jobs. in the system by more than 17 percent, between 2016 and 2021. This was possible through the design and implementation of integrated justice centers across the country that met Juditecture standards for improved service provision to citizens and businesses. This has included the setup of a dedicated integrated justice center in Dar es Salaam (Temeke) for addressing women’s access to justice needs. In addition, mobile courts (specialized vehicles with technology, and solar panels) have been launched to bring justice closer to the people, in urban and rural areas. Furthermore, gender gap has been narrowed in the judiciary, staff have been skilled, performance 52 See for instance an Legal Services Corporation (LSC) survey showing that between December 2010 and 2012, budget cuts led to significant layoffs, the LSC grantees totaling a loss of 1,226 full-time employees at the Conference of Chief Justices of the state Supreme Courts, “The Importance of Funding for the Legal Services Corporation from the Perspective of the Conference of Chief Justices and The Conference of State Court Administrators.” http://ccj.ncsc.org/~/media/Microsites/Files/CCJ/Web%20Documents/LSC_WHTPR.ashx 53 Tanzania Citizen-centric Judicial Modernization and Justice Service Delivery (P155729) received World Bank Vice President Award in 2020 for its achievements and results. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 69 References Bingham Centre for the Rule of Law. 2014. “International Access to Justice: Barriers and Solutions.” Report, Bingham Center for the Rule of Law, London. Brookings Institution. 1989. Justice for All: Reducing Costs and Delay in Civil Litigation. Washington, DC: Brookings Institution. Danish Institute for Human Rights. 2011. Access to Justice and Legal Aid in East Africa: A Comparison of the Legal Aid Schemes Used in the Region and the Level of Cooperation and Coordination between the Various Actors. Report based on a cooperation with the East Africa Law Society. Copenhagen. Doherty, J. “Women’s Representation in Judiciaries Worldwide: Arguments in Favor of Increasing the Gender Diversity on the Bench.” Working paper, The George Washington University, Washington, DC. https://geia.elliott.gwu.edu/womens- representation-judiciaries-worldwide. European Commission for the Efficiency of Justice (CEPEJ). 2012. European Judicial Systems, Edition 2012 (2010 date). http://www.coe.int/t/dghl/cooperation/cepej/evaluation/2014/Rapport_2014_en.pdf. ———. 2016. European Judicial Systems: Efficiency and Quality of Justice. CEPEJ Studies No. 23. CEPEJ, Brussels. Love, I. 2011. “Settling out of Court: How Effective is Alternative Dispute Resolution?” World Bank ViewPoint, Note Number 329, Washington, DC. Meschievitz, Catherine S., and Galanter, Marc. 1982. “In Search of Nyaya Panchayats: The Politicas of a Moribund Institution.” In The Politics of Informal Justice, edited by Richard L. Abel. New York: Academic Press National Center for State Courts. 1987. Examining Court Delay, the Pace of Litigation in 26 Urban Trial Courts. Williamsburg, VA: National Center for State Courts. Sutherland, T., and G. Sezneck 2003. “Alternative Dispute Resolution Services in West Africa: A Guide for Investors.” Guide sponsored by the Commercial Law Development Program, U.S. Department of Commerce, Washington, DC. Transparency International. 2007. Global Corruption Report 2007. Berlin: Transparency International. https://www.transparency.org/whatwedo/publication/global_corruption_report_2007_corruption_and_judicial_systems. United Nations. 1993. Declaration on the Elimination of Violence against Women. Resolution 48/104. United Nations, New York. United Nations. Principles and Guidelines on Businesses and Human Rights United Nations. 2015. “The World’s Women 2015, Trends and Statistics.” United Nations, New York. World Bank. 2010. Africa Regional Justice Note: A Review and Lessons Learned. World Bank. ———. 2011. Improving the Performance of Justice Institutions. Colombia: World Bank, Washington, DC. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 70 Appendix A. Methodology of gender and marital status analysis Statistical Correlation Between Barriers of Access to Justice Presented in Chapter 7 The Spearman rank-order correlation coefficient was utilized to shed light on the factors that most influence access to justice given the variables used to measure access to justice and the different barriers are ordinal. The Spearman rank-order correlation test is a nonparametric test which measures the strength and direction of the monotonic relation between two variables that are measured on an ordinal or continuous scale. A monotonic relationship is a relationship that does one of the following: (1) as the value of one variable increases, so does the value of the other variable; or (2) as the value of one variable increases, the other variable value decreases. One of the advantages of the Spearman test is that it makes it possible to test the existence of a linear or non-linear relationship between two variables. Indeed, a monotonic relationship can be either linear or nonlinear. As it is a nonparametric test, no assumption is needed for the distribution of the variables of interest. For a sample of size n and 2 variables X and Y, the Spearman coefficient is given by: 2 6 ∑ = 1 − 2 ( − 1) Where di is the difference between the two ranks of each observation. The spearman coefficient lies between -1 and 1. The team calculated the spearman coefficient between access to justice and different barriers, namely: • Distance to courts • Lack of legal information on rights and the operation of the justice system • Expensive nature of hiring the services of a lawyer • Absence or limited accessibility of legal aid services • High cost related to reporting and filing a case • Incompetence of court and law enforcement officials • Prolonged process and delay in the delivery of justice • Lack of trust in the official judicial system • Prevalence of corruption, • Complex, unfriendly and intimidating procedures, • Poor quality of outcome and process, • Cultural and linguistic barriers, and • Gender bias and discrimination by justice sector officials. Figure A.1 Correlation between Access to Justice and Different Barriers in Selected Countries Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 71 Figure A1a Barriers Influencing Access to Formal Courts in Ethiopia Figure A1b Barriers Influencing Access to Formal Courts in Sierra Leone Figure A1c. Barriers influencing access to formal courts in Cameroon Figure A1d. Barriers influencing access to Formal Courts in Zanzibar Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 72 Figure A1e Barriers Influencing Access to Law Enforcement Agencies in Figure A1g Barriers influencing Access to Law Enforcement Agencies in Ethiopia Sierra Leone Figure A1g Barriers Influencing Access to Law Enforcement Agencies in Figure A1h Barriers Influencing Access to Law Enforcement Agencies in Cameroon Zanzibar Source: Authors Analysis Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 73 The results show that in Ethiopia, the various factors identified have a significant correlation with access to formal courts. Prolonged processes and delay in the delivery of justice, distance to courts, high cost related to reporting and filing a case are the most influential factors. In access to law enforcement agencies, poor quality of outcome and process, lack of trust in the official judicial system, and prolonged processes and delay in the delivery of justice are the three most relevant barriers. Distance is not correlated with access to law enforcement agencies. In Sierra Leone, the most important barriers to access to formal courts are distance to courts, poor quality of outcome and process, and high costs related to reporting and filing a case. Moreover, access to law enforcement agencies is mainly hampered by complex, unfriendly, and intimidating procedures, cultural and linguistic barriers, poor quality of processes and outcomes, prolonged processes and delay in the delivery of justice. Access to law enforcement agencies is not correlated with the expensive nature of hiring the services of a lawyer. In Cameroon, incompetence of court and law enforcement officials is not significant in explaining access to formal justice courts. Alternatively, lack of legal information on rights and the operation of the justice system and the expensive nature of hiring the services of a lawyer are the most correlated barriers to access to formal courts. Distance to courts; absence or limited accessibility of legal aid services; complex, unfriendly, and intimidating procedures; poor quality of outcome and process; gender bias and discrimination by justice sector officials are the only barriers correlated to access to law enforcement agencies. In Zanzibar, only incompetence of court and law enforcement officials, prolonged process and delay in the delivery of justice, lack of trust in the official judicial system, cultural and linguistic barriers, gender bias and discrimination by justice sector officials are significant in explaining access to formal courts. Poor quality of outcome and process, gender bias and discrimination by justice sector officials, incompetence of court and law enforcement officials are the most important barriers correlated to access to law enforcement agencies. Figure A.2 Correlation between Access to Justice and Different Barriers for Sub-Saharan Africa (4 countries together) Figure A2a Barriers Influencing Access to Formal Courts in Africa Figure A2b Barriers Influencing Access to Law Enforcement Agencies In Africa Source: Authors Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 74 Figure A.3 Barriers Influencing Access to Formal Courts and Law Enforcement Agencies in Africa Access to formal courts Africa Access to law enforcement agencies Africa Prevalence of corruption 0.3 Incompetence of court and law Distance to courts 0.25 enforcement officials High cost related to reporting 0.2 Expensive nature of hiring the and filing a case 0.15 services of a lawyer 0.1 0.05 Absence or limited accessibility Cultural and linguistic barriers of legal aid services 0 Lack of trust in the official Lack of legal information on judicial system rights and the operation of… Gender bias and discrimination Complex, unfriendly and by justice sector officials intimidating procedures Poor quality of outcome and Prolonged process and delay in process the delivery of justice Source: Authors Results show that the different barriers are correlated with access to formal courts and access to law enforcement agencies in Africa with the exception of the expensive nature of hiring the services of a lawyer which does not affect access to law enforcement agencies. Distance to courts, high cost related to reporting and filing a case, and cultural and linguistic barriers are the most relevant factors that influence access to formal courts in Africa. Concerning access to law enforcement agencies, distance to courts, poor quality of outcome and process, and lack of trust in the judicial system are the most correlated barriers. The various barriers identified are more correlated with access to formal courts than access to law enforcement agencies. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 75 Table A.1: Correlation between Access to Justice and Different Barriers in Selected Countries Countries Ethiopia Sierra Leone Cameroon Zanzibar (Tanzania) Access Access to law Access Access to law Access Access to law Access to Access to law to enforcement to enforcement to enforcement formal enforcement formal agencies formal agencies formal agencies courts agencies courts courts courts Distance to 0.183a 0.019 0.316a 0.206 a 0.171 a 0.203 a - - courts Lack of legal 0.127 a 0.086 a 0.254 a 0.238 a 0.201 a -0.030 0.026 0.077 information on 1 rights and the operation of the justice system Expensive 0.084 a 0.066 a 0.146 a 0.068 0.195 a -0.013 -0.001 0.091 nature of hiring the services of a lawyer Absence or 0.133 a 0.082 a 0.138 a 0.128 a 0.161 a 0.069 a 0.036 0.1001 limited accessibility of legal aid services High cost 0.159 a 0.115 a 0.255 a 0.158 a 0.188 a -0.015 0.017 0.087 related to reporting and filing a case Incompetence 0.081 a 0.069 a 0.236 a 0.193 a 0.049 0.036 0.133 a 0.157 a of court and law enforcement officials Prolonged 0.206 a 0.174 a 0.143 a 0.241 a 0.140 a 0.054 0.010 a 0.023 process and delay in the delivery of justice Lack of trust in 0.126 a 0.179 a 0.159 a 0.220 a 0.136 a 0.052 0.153 a 0.151 a the official judicial system Prevalence of 0.093 a 0.136 a 0.111 a 0.162 a 0.064 a -0.017 0.039 0.119 a corruption Complex, 0.104 a 0.0570 a 0.246 a 0.279 a 0.194 a 0.096 a 0.041 0.101 a unfriendly and intimidating procedures Poor quality of 0.114 a 0.181 a 0.260 a 0.268 a 0.147 a 0.081 a 0.088 0.160 a outcome and process Cultural and 0.063 a 0.095 a 0.205 a 0.269 a 0.194 a 0.011 0.101 a 0.151 a linguistic barriers Gender bias 0.091 a 0.148 a 0.209 a 0.179 a 0.099 a 0.129 a 0.115 a 0.158 a and discrimination by justice sector officials a Significant at 5 percent level Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 76 Table A.2 Correlation between Access to Justice and Different Barriers for Africa (4 countries together) Access to formal courts Access to law enforcement agencies Distance to courts 0.268 a 0.198 a Lack of legal information on rights and the operation of the justice 0.189 a 0.07 a system Expensive nature of hiring the 0.16 a 0.014 services of a lawyer Absence or limited accessibility of 0.161 a 0.085 a legal aid services High cost related to reporting and 0.254 a 0.088 a filing a case Incompetence of court and law 0.138 a 0.067 a enforcement officials Prolonged process and delay in the 0.203 a 0.108 a delivery of justice Lack of trust in the official judicial 0.232 a 0.110 a system Prevalence of corruption 0.135 a 0.057 a Complex, unfriendly and intimidating 0.202 a 0.108 a procedures Poor quality of outcome and process 0.215 a 0.116 a Cultural and linguistic barriers 0.244 a 0.101 a Gender bias and discrimination by 0.227 a 0.108 a justice sector officials Source: 1 Significant at 5 percent level Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 77 Appendix B. Questionnaire Voices of the Vulnerable for Access to Justice in SSA Household Survey Questionnaire I. Questionnaire Identification Sub-city: Kabele: House No. Questionnaire ID No. Name of Interviewer: Name of Supervisor Category of Respondent (Circle category 1. Women 4. Young offender without asking the respondent) 2. Youth 5. Victim of Violence 3. Housemaid 6. Informal Trader II. Introduction: Dear interviewee, this survey instrument is prepared to assess the situation of access to justice with respect to vulnerable groups, especially women and the youth. It also aims at understanding the experience and voices of these groups on access to justice through formal and non-formal justice mechanisms. Your identity will remain confidential. Thank you in advance for your time. i. Background 1. Sex: 1.Male 2.Female 2. Age: 3. Marital Status: 1. Never Married 3. Divorced 2. Married 4. Widowed 4. Education Level attained by 1. Non literate 4. Primary second respondent cycle (5-8) 2. Read and write 5. Secondary school (including 10+2) 3. Primary first cycle (1-4) 6. College diploma or above i. Perceptions and situation of access to justice by vulnerable groups: This section deals with such issues as identification of vulnerable groups' justice needs, degree of access to justice, and perception on major barriers and costs of access and quality of justice process and outcome. 5. Have the following legal issues and grievances ever arisen as justice needs of you or your household? [Interviewer: Please read items one at a time] Legal Issues and Grievances 1= Yes, 2= No Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 78 5.1 Divorce and domestic dispute 5.2 Child maintenance and custody 5.3 Inheritance 5.4 Contract 5.5 Labor issues 5.6 Damages and other monetary claims 5.7 Property including land use and related housing and ownership rights 5.8 Business matters related to licensing, supplies, taxation etc. 5.9 Domestic violence 5.10 Physical violence at the community level 5.11 Sexual abuse (including rape and abduction) 5.12 Sexual harassment (at work, in schools and other places) 5.13 Bullying 5.14 Corporal punishment at home or in schools 5.15 Trafficking in women and children 5.16 Commercial sexual exploitation (such as prostitution) 5.17 Child labour 5.18 Unlawful arrest and detention 5.19 Abuse of power including corruption 6. How accessible do you think are the following justice institutions to you and your family? Justice Institution 1= Very difficult 4= Easy 2= Difficult 5=Very Easy 3= Moderate 999= Don't know 6.1 Formal courts 6.2 Shari'a Courts 6.3 Law enforcement agencies (police and public prosecution) 6.4 Social courts 7. Please rate the following in terms of their seriousness as barriers for you or members of your household to have access to formal justice mechanisms. Barriers 1= Serious barrier, 2= Somehow a barrier, 3= Not a barrier at all 7.1 Partiality of personnel 7.2 Lack of legal information on rights and the operation of the justice system 7.3 Expensive nature of hiring the service of a lawyer 7.4 Absence or limited accessibility of legal aid services 7.5 High cost related to reporting and filing a case (court fee, secretarial and transportation expenses) 7.6 Incompetence of court and law enforcement officials 7.7 Prolonged process and delay in the delivery of justice 7.8 Lack of trust in the official judicial system Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 79 7.9 Prevalence of corruption 7.10 Complex, unfriendly and intimidating procedures 7.11 Poor quality of outcome and process 7.12 Cultural and linguistic barriers 7.13 Gender bias & discrimination by justice sector officials (including double victimization) 8. How often do you and members of your household resort to the use of alternative and traditional justice mechanisms? 1= Never, 2= Seldom, 3= Sometimes, 4= Usually, 5= Always 9. Please rate the following in terms of their seriousness as barriers for you or members 1= Serious of your household to utilize non-formal justice mechanisms barrier, 2= Somehow a barrier, 3= Not a barrier at all 9.1 Partiality of personnel 9.2 Limited capacity of personnel 9.3 Gender bias and discrimination by personnel 9.4 Unpredictable outcome 9.5 Weak execution of decisions 9.6 Prolonged process and delay in the delivery of justice 10. To what extent do you agree with the following statements? 1 = Strongly disagree, 2 = Disagree, 3 = Neither agree nor disagree, 4 = Agree, 5 = Strongly agree 10.1 The justice system works only for the rich and the powerful 10.2 There are improvements in the accessibility of the court system in the past few years 11. In your opinion, how often does the Ethiopian Formal Justice System deliver? 1= Never, 2= Seldom, 3= Sometimes, 4= Usually, 5= Always 11.1 Affordable service 11.2 Timely service 11.3 Quality service i. Legal Information and Legal Aid This section covers issues of accessibility of legal information and legal aid 12. How do you evaluate the level of your awareness and knowledge of: 1 = Very poor, 2 = Poor, 3= Moderate, 4 = High 5 = Very high 12.1 Your legal rights 12.2 Laws of the land 12.3 The working of the legal system 12.4 Available legal aid services Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 80 13. How do you rate the availability of legal information on the above in your community? 1= Very high, 2 = High, 3 = Medium, 4 = Poor, 5 = Very poor 14. To what extent have the following served you as sources of legal information? 1= Never, 2= Seldom, 3= Sometimes, 4= Usually, 5= Always 14.1 Personal contacts (family, friends, neighbors, etc.) 14.2 Professional lawyers 14.3 Community outreach programs (community conversations, marches etc) 14.4 Print and electronic media (radio, TV, internet, leaflets, posters, billboards) 14.5 Awareness raising workshops and programs 15. How do you rate the availability of free legal aid service in your community? 1= Very high, 2 = High, 3 = Medium, 4 = Poor, 5 = Very poor Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 81 Appendix C. Comparative Analysis of Court Fee Systems United States—Under federalism, the federal and state governments each have their own court systems and structures. Each state court fixes its own court fees and publishes a detailed schedule online, meaning these costs may vary not only from one state to another, but also from one state court to another. For instance, unlike Illinois’ Cook County Circuit Court, that charges uniform court fees (the fees are the same whether it is an adoption case or a probate case), Illinois’ Lake County Circuit Court charges different fees depending on the nature of the case. Further, the amount of court fees differs from one same-state court to another. For example, the fee for a jury demand in Lake County amounts to $112 and in Cook County to $65. As to federal courts, under Federal Procedural law, any federal court may tax as costs six different categories of fees.54 The fees are fixed uniformly by the federal government throughout the U.S. Courts system, and is the same whether a litigant goes to the U.S. District court of the Southern District of New York for instance, or to the U.S. District Court of the Northern District of Illinois. Below are two comparative tables of court fee examples passed to users in New York and Illinois by federal and state courts:55 Table C.1 Court Fees Examples U.S. District Court Southern District of New New York State Supreme Court/county York clerk fees Type of fee Amount Type of fee Amount New Action (Complaint, Notice of $400 Filing New action (All actions- Removal & Petitions) Fee $200–$400 mortgage foreclosures) Attorney admission $200 Notice of appeal $65 Notice of appeal $505 Supreme Court action certified $8 copy Certified copy $11 Request for judicial $95 intervention Certificate of disposition $11 Note of issue $30 a Apostille $2 Exemplification $25 Exemplification $21 Jury demand $65 Record search $30 Filing of a motion $45 Docket sheet $0.5/page Filing of a cross-motion $45 Abstract of judgment $11 Filing of a Stipulation of $35 Settlement Appeal to district judge from a $37 Filing of a Stipulation of $35 conviction Discontinuance Registration of judgment $46 New York Appellate Division of the Supreme Court Miscellaneous filing fees $46/case Filing of the Record on Appeal $315 Returned check fee $53 Motion or Cross-motion $45 Source: NY and Illinois Courts a The note of issue filing fee is $125 where a request for judicial intervention is not required to be filed. 54 Title 28 United States Code (28 U.S.C. §1920): “Fees of the clerk and marshal; Fees for printed or electronically recorded transcripts necessarily obtained for use in the case; Fees and disbursements for printing and witnesses; Fees for exemplification and the costs of making copies of any materials where the copies are necessarily obtained for use in the case; Docket fees; Compensation of court appointed experts, compensation of interpreters, and salaries, fees, expenses, and costs of special interpretation services.” 55 For a complete list, see at https://www.nycourts.gov/forms/filingfees.shtml; http://www.nysd.uscourts.gov/fees; http://www.lakecountycircuitclerk.org/docs/default-source/default-document-library/filing-fees.pdf?sfvrsn=0; http://12.218.239.52/Forms/pdf_files/CCG0603.pdf. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 82 Table C.2 Court Fee Examples U.S. District Court Circuit Court, Lake Circuit Court of Cook Northern District of County Illinois, court County, Illinois, court Illinois fees fees Type of fee Amount Type of fee Amount Type of fee Amount Civil filing fee $400 New Case $65– Filing of civil $150– filingsa 966b actionc $368d Court of $500 Appearance $131– Appearance $207– Appeals Fees all $176 Fees in a civil $237 Docketing Fee casesa casesc Notice of $5 Jury $12– Jury feesc $12– Appeal demanda $212 $230 Certified copy $11 Alias $5 Alias $6 summonsa summonsc,e Exemplification $21 Official $6 Official $9 certificationa certificationc Records search $30 Motion to $25-$75 Official $110– vacate or certification $185 modifya for appealsf Attorney $176 + Record $6 Record $9 admission $50 searchinga searching Registration of $46 Register $291 Judgment foreign Criminal and Quasi- dissolution Criminal Costs for Judgment each person convicted Appeal to $37 Correction $25 Jury fee $250.00 District Judge of case number Abstract of $11 Credit card $1–$3 Misdemeanor, $110.00 Judgment convenience percent business and fee of petty offense amount complaints paid Miscellaneous $46 Returned $25 Felony $190.00 filing fees /case check fee Complaints Witness fee $40 Hard copy $6/page Court $30 fee appearance is required Court $25 Automation Fee Document $25 storage fee Source: Illinois Courts a Depending on the nature of the claim (civil, family, probate, criminal). b New Case filings for an adoption = $65.00/ new case filings for arbitration claims = between $223 and $291/ new case filing for a chancery action = $291/ new case filing for dissolution = $291/ new case filing for eminent domain = $251/ new case filing for a family case = $291/ new case filing for probate = between $121 and $351 etc. See for a complete list http://www.lakecountycircuitclerk.org/docs/default- source/default-document-library/filing-fees.pdf?sfvrsn=0. c Depending on the amount claimed. d Filing fee to initiate a civil action when the amount claim does not exceed $250.00 = $150/ exceeds $250.00 but does not exceed $1,000.00 = $203.00/ exceeds $1,000.00 but does not exceed $2,500.00 = $208/ exceeds $2,500.00 but does not exceed $5,000.00 = $258.00/ exceeds $5,000.00 but does not exceed $15,000.00 = $278.00/ exceeds $15,000 = $368. e Second summons that is issued if the person being sued did not receive the first summon. f Depending on the number of pages. This detailed court fee structure makes the information easy to access compared to other jurisdictions. Nevertheless, American courts, whether State or Federal, charge a large number of court fees at every step of the system, from the courtroom, to jail, to probation. This structure may often add up to hundreds or thousands of dollars exclusive of lawyer’s fees, and hence could hinder access to justice. Indeed, studies have shown that not only court fees have increased in the recent years, but also that defendants are now “charged Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 83 for many government services that were once free, including those that are constitutionally required.”56 For example, in 43 states and the District of Columbia, defendants can be billed for a public defender, in 41 states, inmates can be charged for room and board for jail and prison stays, and in all states except Hawaii and the District of Columbia, there's a fee for the electronic monitoring devices that defendants and offenders are ordered to wear.57 Therefore, litigants are likely to face very high costs when trying to access justice in the United States. France has extremely low costs even in relation to other developed countries such as the United States or the United Kingdom. This civil-law jurisdiction has enacted various statutes in the past decades that aimed at enhancing access to justice for all. For instance, a law of 1977 established the principle of free public service with regard to civil and administrative courts, and cancelled all fees that were applicable to obtaining judicial documents.58 As a result, in civil and administrative proceedings, there are no filing fees to register a case, and anyone can bring an action provided that they have a righteous cause. This is different, however, before French commercial courts, where administrative tasks are handled by a separate entity, the Greffier, which is responsible for filing and administering commercial cases. As a result, litigants pay Greffier fees, which include filing fees in an amount that varies from $65 to $93 depending on the commercial court.59 Nevertheless, unlike civil proceedings, hearings are oral and parties filing cases do not have to be represented by lawyers. The French judicial system distinguishes between court fees, called dépens, and other costs, called frais, which are not comprised in court fees, such as attorney’s fees. Pursuant to French civil procedural law, the dépens are those court fees that are legally indispensable in order to pursue an action. Eleven types of court fees are listed in the law and their amount is fixed either by law or by order of the court. They include fees or taxes paid to court officers and bailiffs or tax authorities (these fees are rare since the 1977 law instituting free public service), translation fees, witnesses’ costs and expert witness fees, regulated lawyers’ fees, social welfare investigation fees ordered in family and custody matters, the fees of the person appointed by the court to represent the interests of a child, and finally fees for service of process and other procedural acts abroad.60 The French Code of Civil Procedure provides that these fees shall be paid by the losing party, provided that the judge does not rule otherwise.61 In the criminal justice sphere, court fees such as expert witness and witness fees, and investigation fees are covered by the State. The losing party, however, shall pay very low fixed court fees that are set out in a fee schedule.62 The following table sets out examples of fees and corresponding amounts that are passed on to users for the administration of their case in France: 56 See the state-by-state survey conducted by National Public Radio and related report at http://www.npr.org/2014/05/19/312158516/increasing-court-fees-punish-the-poor. 57 See the state-by-state survey conducted by National Public Radio and related report. 58 Law n ° 77-1468 of 30 December 1977 instituting free legal proceedings before civil and administrative courts, see https://www.legifrance.gouv.fr/affichTexte.do?cidTexte=JORFTEXT000000333072. 59 For instance, the Paris Tribunal de Commerce’s initial filing fee amounts to $92 (€83) while the Bordeaux commercial court charges a filing fee of $59 (€53). 60 See Article 695 of the French Code of Civil Procedure: “Costs relating to enforcement proceedings, instruments and procedures shall include: (1) The duties, taxes, fees or emoluments levied by the secretariats of the courts or the administration of taxes, with the exception of duties, taxes and penalties Acts and titles produced in support of the parties' claims; (2) The costs of translating documents when required by law or by an international undertaking; 3. The indemnities of witnesses; 4 ° The remuneration of technicians; 5 ° The disbursements paid; 6. The emoluments of the public or ministerial officers; 7 ° The remuneration of lawyers insofar as it is regulated, including the rights of pleadings; (8) Expenses occasioned by the notification of an act abroad; (9) Interpretation and translation costs necessitated by measures of inquiry carried out abroad at the request of the courts under Council Regulation No. 1206/2001 of 28 May 2001 on the Cooperation between the courts of the Member States in the taking of evidence in civil and commercial matters; 10 ° Social inquiries ordered pursuant to articles 1072 and 1248; 11 ° The remuneration of the person designated by the judge to hear the minor, in application of article 388-1 of the Civil Code.” 61 Article 696 CCP “The losing party shall be ordered to pay the costs unless the judge, by reasoned decision, refuses to pay the whole or any part of it to another party.” 62 See at https://www.service-public.fr/particuliers/vosdroits/F1816, $35 for a trial before the Police Tribunal, $142 before correctional courts, and $588 before criminal courts. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 84 Table C.3 Court Fees by Type of Trials Civil trials Commercial trials Criminal trials Filing fees $0 $65 $0 Court officers and Summons $20 Summons $20 bailiff fees Service of process $29a Service of process $29a $0 Translation fees Fixed by the Court Fixed by the Court $0 Witness Fixed by the Court Fixed by the Court $0 Expert witness fees Fixed by the Court Fixed by the Court $0 Fees for procedural Fixed by the Court Fixed by the Court $0 acts abroad Certified court $0 $3,47 $4 or $20b decision Other fixed fees $0 $17- $84c $25; $142; $588d Source: French Courts a On a per service basis, see Article 2, Order of 26 February 2016 fixing the regulated tariffs of bailiffs, at https://www.legifrance.gouv.fr/eli/arrete/2016/2/26/EINC1605791A/jo. b $4 for correctional courts’ decisions and those that do not rule on meri ts; $20 for all other decisions, see Article 8, Loi no. 77 –1458, December 30, 1977. c These fees are payable to the Greffier, for various procedural acts and “judicial activities” such as injunctions for payment , see at http://www.greffe-tc-paris.fr/fr/fond-referes-requetes/tarifs_fond.html. United Kingdom (UK)—In the UK, as in the United States, there is no principle of free public service. As a result, users are charged relatively high fees to access public services. In fact, following a 2015 Amendment, the Civil Proceedings, Family Proceedings and Upper Tribunal Fees (Amendment) Order 2016 that took effect in March that year, introduced a significant increase to court fees for certain types of civil and family proceedings in order “to make sure that the courts and tribunals are funded in the long term”.63 Nevertheless, those fees are set at a level supposed to cover the full cost of delivering those services.64 Importantly, court fees are considered separate from other fees such as witness and expert witness fees, translators’ fees, and bailiff’ fees. Thus, an individual may have to pay multiple fees through the judicial process, including hearing and application fees. In the UK, court fees are fixed costs that are determined according to the amount of the claim in issue. On average, court fees represent 3–5 percent of the overall cost of civil proceedings (Macfarlane 2007). This proportion is exclusive of other fees like experts’ fees (5–10 percent), witness compensation (3–5 percent), translation/interpretation fees (5–7 percent), and lawyers’ fees (70–90 percent). The court has wide discretion as to costs matters, particularly the amounts and whether costs are payable by one party to another. If the court decides to make an order about costs, the general rule is that the unsuccessful party will be ordered to pay the costs of the successful party, but the court may make a different order.65 The following table shows the costs of access to civil and criminal justice in the UK: Table C.4 Court Fees in Civil and Commercial Trials Filing Fees Money claims From $45.5 to $13,000 depending on the claim amounta Non-money claims From $400 to $684 depending on the courtb Appeal Filing fee for Appeal From $156 to $311c Appeal Notice From $182 (county) to $312 (high court) Hearing Fees Small claims track From $32 to $435 depending on the claim amountd Multi-track hearings $1,414 Fast Track $707 Bailiff $113 (£100) to request Bailiff service of an order for a debtor to attend court for questioning in family courts, and $143 in civil court. $143 in family court for a request for service by a Bailiff for any document 63 See Former Minister of State for Justice Lord Faulks’ comment at https://hansard.parliament.uk/Lords/2016–03– 15/debates/16031576000642/CivilProceedingsFamilyProceedingsAndUpperTribunalFees(Amendment)Order2016 64 See Former Minister of State for Justice Lord Faulks’ comment at https://hansard.parliament.uk/Lords/2016–03– 15/debates/16031576000642/CivilProceedingsFamilyProceedingsAndUpperTribunalFees(Amendment)Order2016 65 See Civil Procedure Rules (CPR), Part 44, Rule 44.2. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 85 Copies $13 (£10) for 10 pages, 50p for additional pages Witness $65 for a witness summons Expert For claims up to $13,000 (£10,000), fee capped at $978 (£750); All other case, judge’s discretion. Authenticated $65 on a per act basis. court decision Translation fees No regulations governing such fees, determined by translators COURT FEES IN PROCEEDINGS BEFORE MAGISTRATE’S COURTS Expert witness Expert witness and interpreters allowances are discretionary. Appeal From $266 (£205) for an application to $669 (£515) for an application to state a case for the opinion of the High Court Certified From $20 (£15) to &136 (£105),e with a $78 fee (£60) for a request for a certified documents documents, and a $78 fee (£60) for a certified copy of a memorandum of conviction. Copies Copy of a 10-page or less document $13 (£10) 50p for each subsequent page Oaths $32 (£25) when no other fee is specified OTHER FEES IN CRIMINAL PROCEEDINGS BEFORE MAGISTRATE’S COURTS and CROWN COURT Preparation $59 (£45,35) per hour per solicitor Advocacy $74 (£56.89) per hour per solicitor Attendance $40 (£31.03) per hour per solicitor Travel and wait $31 (£24.00) per hour per solicitor Routine letters $4 (£3.56) per item calls COURT FEES IN CRIMINAL TRIAL BEFORE COURT OF APPEAL Preparation Between $40,4 (£31,03) and $66 (£50,87) per hour depending on the seniority of the solicitor Advocacy Between $66,6 (£51,10) and $76 (£58,4) per hour depending on the seniority of the solicitor Travel and wait Between $15 (£11,41) and $29 (£22,58) per hour depending on the seniority of the solicitor Routine letters $4 (£3.15) per item calls Sources: Leaflet EX50 Civil and Family Court fees, at https://formfinder.hmctsformfinder.justice.gov.uk/ex50-eng.pdf; Source: leaflet EX50A HMCTS: 25th July 2016; leaflet EX50 Civil and Family Court fees, at https://formfinder.hmctsformfinder.justice.gov.uk/ex50-eng.pdf. a For money claims amounting from $0 to $389, the filing fee represents $45.5, and for money claims of over $259,000, the filing fee amounts to $13,000. b To file a non-money claim before the county court, litigants shall pay a fee of $400, and for no-money claims before the High Court, litigants shall pay a fee of $684. c $156 for appeals before the country court (small claims track), $182 for appeals before the county court for all other claims, and $311 for appeals before the High Court. d For Small Claim Track where the amount claimed is: up to $389 - $32/between $389,01 and $649 - $71/ between $71.01 and $1,298 - $103/ between $1,298.01 and $1,946 - $149/ between $1,946.01 and $3,893 - $220,6/ more than $3,893 - $460/ Fast track claim - $707/ Multi track claim - $1414. e £15 to request a certificate of satisfaction, and £105 to request a certificate of refusal to state a case. For instance, if litigant ‘A’ filed a money claim of $389 before a civil court, ‘A’ may be exposed to incur a minimum of: ($45,5 for initial filing fees) + ($32 for a small claims track’s hearing fees) + ( $156 Filing fee for Appeal) + ($182 for an Appeal Notice before the county court) + ($143 to request Bailiff service of an order for a debtor to attend court for questioning) + ($65 for a witness summons) + ($65 for an authenticated court decision) = $688. Singapore—Litigants are responsible for paying court fees and hearing fees in order to access Justice. Court fees are statutorily fixed and listed in fee schedule. In this schedule, a total of 111 different types of court fees are referenced. Just like in the UK and the United States, court fees are payable throughout the judicial process, from the commencement of an action to its end. Particularly, when documents are filed to or lodged with the Court, upon the sealing of any document and for the provision of copies of documents. In addition, for matters before the Court of Appeal, an appellant may be required to provide a security deposit for the respondent’s costs in appeal. The following table provides a few examples of courts fees that can be charged to users throughout the course of civil proceedings: Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 86 Table C.5 Court Fees in Civil Proceedings in Singapore Supreme Supreme District Court Magistrate’s Type of Fees Court with Court with Court value of up value of more to $734,643a than $734,643 Originating processes $367 $735 $110 $73 and pleadings Sealing originating/ $183 $368 $37 $18 Commencement of a renewed summons cause, appearance and Entering an $73 $145 $15 $7 pleadings appearance for each party Sealing summons $367 $735 $73 $34 seeking injunctions, or discovery orders Sealing other $73 $145 $15 $7 summons Interlocutory Actions Filing a request for $73 $145 $37 $18 service of process outside the jurisdiction Setting down a cause $367 $735 $145 $110 Entering or setting for hearing or down for trial or hearing judgement On sealing 1 $37 $73 $7 $7 Writs and writs of subpoena to testify execution and/or to produce documents Entering or sealing a $73 $145 $36 $18 Judgment and order judgement/Court order Notice of appeal to a $367 $735 $110 $110 High Court Judge Appeals from Registrar/Magistrate/ Notice of appeal from $73 $73 District Judge in Registrar to District chambers Judge Notice of appeal to $735 $1469 Court of Appeal Filing Appellant’s $2,204; $2,204; $735 Case and Appellant’s $735 Reply Appeals from High Court Filing a Respondent’s $735 $735 case Notice of appeal $441 $441 Appeals to High Court Filing an Appellant’s $441 $441 $441 $441 Case Per request for $6/document $6/document $6/document $6/document certified copies of + 5/page + 5/ age + 5/page + 5/page documents Per request for plain $4/document $4/document $4/document $4/document Inspection / Copies / copies of documents +0.15/ page +0.15/ page +0.15/ page +0.15/ page Translations Per application to $15 $15 $15 $15 inspect a court file Source: Singapore Rules of Court, Appendix B. Complete list available at Singapore Statutes Online: http://statutes.agc.gov.sg/aol/search/display/view.w3p;ident=fb5b00a2 –60d1–4397–8942– 028b53dee27a;query=(CapAct%3A322%20%7C%20ParentCapAct%3A322)%20Depth%3A0%20Status%3Ainforce;rec=5;resUrl=http%3A% 2F%2Fstatutes.agc.gov.sg%2Faol%2Fsearch%2Fsummary%2Fresults.w3p%3Bquery%3D(CapAct%253A322%2520%7C%2520ParentCapAct %253A322)%2520Depth%253A0%2520Status%253Ainforce#SaB-. a S$1million. Apart from court fees, hearing fees will also be charged for matters heard by the Court of Appeal, a High Court judge or a registrar. Hearing fees are paid by plaintiffs, appellants or applicants, unless otherwise ordered by Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 87 the judge. They are easily accessible to the public, and are exhaustively listed in statutory regulation. Their amount is based on the duration of the hearing, on the court before which the matter is being heard, and the value of the claim whether the claim’s value is up to S$1 million ($734,643) or more. In addition to hearing fees, fees will also be passed to users for the appointment of witnesses and every witness sworn or examined: Table C.6 Court Fees based on the Value of the Claim Hearing before the Court of Appeal Value of Claim up to Value of Claim More S$1 Million than S$1 Million 1st Day No Charge No Charge 2nd Day onwards S$4,000 per day S$6,000 per day Value of Claim up to Value of claim more Hearing before a High Court Judge S$1 Million than S$1 million 1st to 3rd day No Charge No Charge 4th day S$6,000 per day S$9,000 per day 5th day S$2,000 per day S$3,000 per day 6th to 10th day S$3,000 per day S$5,000 per day 11th day onwards S$5,000 per day S$7,000 per day Hearing before a High Court Registrar for Value of Claim up to Value of Claim More examination of witnesses $1 Million than $1 Million appointment for the examination of a witness S$100/appt S$200/appt Witness sworn/examined S$250 for each hour S$500 for each hour Source: Singapore Courts It therefore appears that similar to the other common-law jurisdictions herein studied, judicial proceedings in Singapore have several different layers to which corresponds and equal number of court fees. To illustrate this court fee structure, suppose that in a case before the Magistrate’s Court,66 litigant ‘A’ may have to pay the following court fees: ($73 for all originating processes and pleadings containing a claim or cause of action where no other fee is specifically provided) + ($18 for sealing an originating summons) + ($7 on entering an appearance) + ($34 for sealing summons seeking a discovery order) + ($110 for setting down a cause for hearing) + ($7 on sealing a subpoena to testify and/or to produce documents for each witness) + ($18 on entering or sealing any judgement) + ($441 for filing a notice of appeal to Court of Appeal) + ($6 per request for certified copies of documents) + ($4 for a request for plain copies of documents) = $718. In a case before the High Court of the Supreme court for $100,000 with an appeal before the Court of Appeal, a litigant may have to pay the following court fees: ($367 for all originating processes and pleadings containing a claim or cause of action where no other fee is specifically provided) + ($183 for sealing an originating summons) + ($73 on entering an appearance) + ($367 for sealing summons seeking a discovery order) + ($367 for setting down a cause for hearing) + ($37 on sealing a subpoena to testify and/or to produce documents for each witness) + ($73 on entering or sealing any judgement) + ($735 for filing a notice of appeal to High Court) + ($,2204 for filing Appellant’s Case Appellant’s) + ($735 for filing a respondent’s case) + ($735 for filing Appellant’s Reply) + ($6 per request for certified copies of documents) + ($4 for a request for plain copies of documents) = $5,886. In addition to the court fees, because in this scenario the litigants have appeared before the Court of Appeals, they will have to pay hearings fees if they stay in court more than one day. If the hearing lasts 2 days, the litigants will have to pay $4,000, making the total out-of- pocket amount of court fees and hearing fees amount to a minimum of ($5,886 + $4,000) = $9,886, which amount is exclusive of other costs such as attorney fees and enforcement fees. Gabon—Gabon is a civil-law jurisdiction that gained independence from France in 1960. Its legal system and the structure of its judiciary draw inspiration from the French civil-law system. Access to the Gabonese national legislation is difficult because not well organized. There is no official website put in place by the judiciary, and the Gabonese official gazette, the Journal Officiel de la République du Gabon, is only available in print form. Consequently, apart from abstracts of the Gabonese civil code which can be found on private websites67, other statutes, laws and court decisions are not accessible to the public. In light of the above, it comes with little 67 See Gabon’s civil code, https://www.ilo.org/dyn/natlex/docs/ELECTRONIC/58663/107508/F2044935657/GAB-58663.pdf. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 88 surprise that no online official information as to Gabon’s court fee structure is available to litigants. Some insight into this court fee structure, however, was found in a private European publication on access to justice of Gabon’s indigenous people.68 According to this study, article 422 of the Gabonese civil code of procedure provides that plaintiffs shall make a deposit to the courts’ registrar in order to cover court fees. This deposit includes an initial filing fee of approximately $20, to which must be added a minimum amount of $100 to cover bailiffs’ fees, expert witnesses’ fees and witnesses’ costs, and the costs of official procedural documents such as summons or certified copies of court decisions. In a country where the minimum monthly salary amounts to $277,69 the study concludes that the Gabonese court fee structure and the high amounts charged to users are likely to prevent access to justice. This conclusion is confirmed when put into perspective with other costs incurred by users of the judiciary in Gabon. Indeed, the Doing Business Report 2016 states that, in contract claims in Gabon, the costs incurred by users, and consisting of attorney fees, court fees and enforcement fees, represented 34.3 percent of the total amount claimed in court, with court fees representing 4.1 percent of that amount.70 For instance, based on the numbers of this report, suppose that litigant ‘A’ claims an amount of $1,000 in court. The total costs incurred by ‘A’ will amount to $343, with court fees of $41, attorney fees of $162 and enforcement fees of $140. If ‘A’ loses his case, he will not recover these out-of-pocket costs. In addition to the high cost of the justice system, the lack of easily accessible official information on court fees is also a major hurdle to access to Justice in Gabon to the extent that litigants wanting to access courts will have to incur additional costs having to visit said courts themselves or contacting an attorney to find information thereon. Cote d’Ivoire - Cote d’Ivoire is also a West African country, formerly under the French colonial empire. After the country gained independence in 1960, its judiciary was reformed but its legal system maintained influences of the French legal system. Cote d’Ivoire’s court fee structure is explained in detail in the decree No.2013– 279 ”charging fees and expenses in civil, commercial, administrative and social matters of 2013”.71 The decree can be found electronically, and regulates court fees as well as the fees of other regulated professions such as mandatory lawyers’ fees and notary fees. In Cote d’Ivoire, court fees encompass initial filing fees and registrar’s fees, official and certified copies, notary fees, bailiff and other court officers’ fees such as licensed auctioneers, and expert witness fees. Litigants shall make a deposit to the registrar before the beginning of the proceeding in order to cover the fees or taxes paid to court officers and bailiffs or tax authorities. Filing fees cover all the procedural work done by the court and its registrar (Greffier), from the filing of the case to the drafting of judgements or orders of the court, to the appeal phase. The filing fees are statutorily fixed. However, in the event that a case was struck off before a judgement on the merits was issued, or in the event of interim proceedings or of cases involving minors, the amount of those fees is to be reduced by half. Below is a table of the main court fees charged to users in Cote d’Ivoire: 68 Banque Africaine de Développement, Fonds Africain de Développement, “Profil de Gouvernance, République Gabonaise”, at http://www.clientearth.org/ressources-externes/gabon/Droit-acces-justice-Aout-2014.pdf. 69 See http://www.lenouveaugabon.com/une-gouvernance/2606–9213-hausse-des-salaires-des-fonctionnaires-le-point-sur-un-casse-tete-public-au- gabon. See e.g. http://www.loidici.com/Quisuisje.php. 70 See http://www.doingbusiness.org/data/exploreeconomies/gabon/#enforcing-contracts. 71https://cotedivoire.eregulations.org/media/decret%20portant%20emoluments%20des%20frais%20de%20justice%20en%20matiere%20civile,%20com merciale,%20administrative%20et%20sociale_2.pdf Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 89 Table C.7 Type of court fees Amount Filing fees $10 (6,000 XAF) before a court of appeals $7 (4,000 XAF) before first instance tribunals Registrars’ fees $9 (5,000 XAF) Certified copies $0.34 per page Plain copies $0,17 per page Court clerk travel costs $0.52 per kilometer + to a travel allowance calculated based on the time spent traveling Bailiff fees Service of process $60 $86 for proceedings before the court of appeals or higher courts. To collect an official signature $17 from a judicial or administrative authority Expert witness fees For a request to appear $17 For the drafting of a report $26 requested by the court Travel costs $0.52 per kilometer + to a travel allowance calculated based on the time spent traveling If litigant ‘A’ goes to a first instance court to claim an amount of $1000, ‘A’ may have to pay: ($7 for filing fees) + ($9 for the registrar’s clerk’s fees) + ($60 for a bailiff’s serving a defendant) + ($43 for a subpoena to request the appearance of an expert witness and to cover his drafting of a report) + ($1.36 for a copy of a 4-page judgement) = $120,36. But if ‘A’ went to court to claim $300 or $100,000, he may also be charged the same amount of court fees. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 90 Appendix D. Legal Aid Examples from Developed Countries The right to legal aid is enshrined in a number of leading international human rights documents such as the European Convention for the protection of Human Rights and the International Covenant on Civil and Political Rights. Said international standards typically set out a two-prong test that individuals must meet to be eligible for legal aid. First, insufficient means to pay for legal assistance (the “means” test). Second, a demonstration that the interests of justice so require, that is, the State must decide whether the public interest in the proper administration of justice requires that the applicant be provided with legal assistance (the “merits” test). Case law has taken into account three factors in determining whether this second criterion has been met: the seriousness of the offence and related severity of a potential sentence; the complexity of the case; and the personal situation of the applicant.72 It follows that legal aid is not guaranteed in every case. When granted, however, legal aid may comprise either a full coverage of legal costs, including court fees and legal representation, or a partial coverage or subsidy. Table D.1 below compares the financial thresholds applicable in various national legal systems and the corresponding coverage. Table D.1 Financial Thresholds in Select Legal Systems Country Income Maximum income for full Income Maximum income for coverage of single partial subsidy for applicant single applicant Australiaa Monthly 120 percent below poverty Depending Depending on State line on State Asset =/< allowed income Matterb Not available Francec Monthly €1,180 Monthly €1,362–1,680 = 25–55 percent United Statesd Yearly 125 percent below poverty NA NA line Finland Monthly €600 Monthly €800–1300 = 80–25 percent Netherlands Yearly (y-2) €25,600 NA NA Assets €21,139 Polande Discretionar Discretionary Discretionary Discretionary y Russiaf Discretionar Discretionary Discretionary Discretionary y South Africa Monthly Rand 5,500g after tax Not available Not available Ownership Yes – maximum R500 of thousand house No – max value of belongings R100 thousand Sources: a Australia: Legal Aid Act, Legal Assistance Guidelines, reprinted with Amendments: 17 February 2016, p. 58. b E.g. criminal proceeding in territory matters will not benefit from legal aid if the cost of granting it is likely to exceed AU$100k. More details at Legal Aid Act, op. cit. note 13, pp. 6 et. Seq. c €1,180, see at https://www.service-public.fr/particuliers/vosdroits/F18074. d Legal Services Corporation, fiscal year 2016 budget request, at http://www.lsc.gov/media-center/publications/fy-2016-budget-request. In 2016, 125% of the federal poverty line: $14,830 for individuals, $30,375 for a family of four. 72 For an analysis of international case law on the merits test, see “The European and International Standards on the Right to Legal Aid”, Open Society Justice Initiative (2014), at para. 21 et. seq., available at https://www.opensocietyfoundations.org/sites/default/files/international-minimum-standards- right-legal-aid_English-20150210.pdf. Voices of the Vulnerable: Promoting Access to Justice in Sub-Saharan Africa l 91 e In Poland, there is no legislation addressing the provision and organization of legal aid. As a result, there is no specific framework or criteria of eligibility. In practice, however, indigent defendants in criminal cases may receive legal aid on the condition that their case falls within the scope of cases for which defense is mandatory, see at Open Society Foundation, “Legal Aid in: Poland”, p. 1. f Burmitskaya, E. 2012. “World’s Models of Legal Aid for Criminal Cases: What can Russian Borrow, Lambert Academic Publishing. g Approximately $400. In addition to financial thresholds, some jurisdictions set the exhaustion of all other means as a pre-condition to receiving legal aid. For example, in France, Germany and Finland among others, legal expenses insurances must be exhausted first. However, in Finland, legal aid can be granted so as to cover the deductible of such insurance, provided that the individual would have otherwise qualified for free legal aid based on his or her income.73 It is also important to stress that in some countries, certain types of victims are automatically eligible for legal aid regardless of income. In France for instance, victims of crimes may access legal aid free of charge, without consideration of income. In South Africa, children automatically qualify for legal aid in criminal cases.74 Sources of funding – Legal aid schemes are typically funded by a combination of public and private sources. However, because international conventions and national constitutions mandate governments to ensure that legal aid is available, public funds are usually the most common source of funding. Legal aid, or legal assistance, typically arises in the form of a government subsidy, favorable tax policy frameworks75, or legislation requiring or encouraging the legal profession to offer pro bono services. It can also be directly provided by the government through the use of public defenders, legal aid centers, or hotline services. However, public contribution to legal aid schemes naturally varies from one country to another. For instance, legal aid schemes in European countries such as France are largely publicly funded whereas U.S public involvement in its legal aid scheme remains limited. In particular, civil legal aid in the United States is mostly managed by private sources while much of the budget for criminal defense comes from state or local government. Box 2 below compares various jurisdictions’ overall judiciary budgets and the corresponding proportion of public involvement in their legal aid scheme: Table D.2 Country 2016 total 2016 Public Percent of annual Public Public Contribution to public expenditure contribution Expenditur Legal Aid in allocated to Legal per capita e on Justice million aid system in million 1. Australia AU$962 AU$250,9 26,9 percent AU$10,46 2. France €8,000 €405 5,1 percent €6 3. Finland €899 €67.7 7.5 percent €12.45 4. Netherlands €10,000 €432 4.4 percent €25.7 5. Poland No info €23 No info €0,72 6. Russia (2012) €11,000 €119 <1 percent €0.83 7. Tanzania Tzs393,000 < Tzs5000 < 1 percent