Over the years, practitioners have been using legal empowerment as an approach to promote people centered justice. Yet, in most cases, we continue to still face the same justice challenges. Is this a question of tact, or should they rethink how they use legal empowerment as an approach?
On 8th July 2021, legal empowerment practitioners in East and Horn of Africa got together online for a roundtable discussion to discuss the impact of the legal empowerment approaches that they use to promote people centered justice. Please find a video of the discussion and a summary key takeaways down below:
The conversation begins by trying to establish the meaning of legal empowerment. From the various responses, how one organization understands and defines legal empowerment is shaped by the context within which an organization works, the communities and systems they interact with and strategies used to promote access to justice.
Communities recognize injustice and how it looks; the question therefore is how legal empowerment organizations work with and support communities to effectively and meaningfully address these injustices. There is plenty of evidence to show that people are already solving their own problems at ground level using alternative justice methods - how can we continue to amplify these alternative justice mechanisms to help people resolve their issues? Legal empowerment means supporting and working with people to get their issues resolved in a timely, affordable and user-friendly way. In Somaliland, the Children’s Legal Defense Centre (CLDC) works with children who are wrongfully detained and imprisoned. They work with families to know the law and how it applies to their case, explore available options towards justice for example, how to use a customary agreement to mediate a case before it goes to trial and/or how to use Shari’a within the criminal justice system to get a favorable justice outcome for the children.
Legal empowerment is about empowering people internally to have the confidence to assert their rights in their own capacity, as opposed to relying on institutions or individuals to do so. Community based paralegal programs are therefore central to legal empowerment approaches, as they not only recognize the agency of communities, but they are also designed to encourage communities to look for justice solutions to their problems.
Legal empowerment is also about educating people to know how to legally defend themselves should they come into conflict with the law and informing people about their rights. In the early 90s, Zambia transitioned from a one party state to a multiparty state. Civic education was conducted to encourage people to vote, as it was their democratic right to have a say in how the country should be run. However, community members would ask how voting was beneficial to them ‘What are you talking about ?Why should I vote, I am not voting for my uncle or son, I am voting for another person- how will this help me?’ The Paralegal Alliance Network in Zambia held several meetings with communities for them to appreciate the democratic process, their right to vote and how this was linked to the governance of the country. In Uganda, the Buliisa Initiative for Rural Development Organization (BIRUDO) works with communities where there is oil and gas exploration. They first organize these communities, inform them about their rights, and the communities in turn are able to engage with the various stakeholders in the oil and gas sector from an informed perspective.
Legal empowerment can also be about transferring power to the powerless and using the law as a tool of this transfer. However, we need to be alive to the limitations of the law. More often than not, the lawmaking process is unequal, as the people most affected by the laws do not take part in its development. This makes law a problematic tool, especially when advancing an agenda for poor and marginalized communities. In addition, the enforcement of laws still remains a great challenge. For example, in some cases, victims of sexual and gender based violence report violations to the police but systemic and systematic challenges within the legal system make it nearly impossible for victims to access justice. Legal empowerment approaches recognize these gaps and see the opportunity to involve communities in shaping the law; ensuring that the views and needs of communities are reflected in policies and laws and working with communities to change bad laws and challenge loopholes within the legal system that make the application of good laws difficult.
Organizations look to empower communities through legal knowledge so that they are then able to use that knowledge to transform their own lives as well as shape institutions and systems. In Kenya, some communities have been discriminated against and as such do not enjoy their citizenship rights. Through a series of campaigns and conversations, the Namati Citizenship Justice program has educated these communities on their nationality rights and their entitlements to these rights. At this point, the communities know the law. Communities then use this knowledge to apply for their citizenship documents. In interacting with the law, they realize that as it is, the law does not work for them. They experience unnecessary vetting processes to prove their identity, after which some members of the community are told that they do not meet the requirements to be Kenyan- despite having been born and bred in the country. This tool, the law, needs to be changed. The affected communities then begin the process of shaping the law so that it works for them. To this end, they have drafted a petition which has been presented in parliament by their local political leader for national action.
The justice needs of communities can change over time. As experienced by BIRUDO, justice needs during oil exploration differ from those during land acquisition and differ from those during production of oil and gas. The communities should be supported at each stage with the appropriate methods that respond to their needs at the time, be it mediation, awareness, litigation etc. Legal empowerment allows for flexibility in approach that corresponds to the changing dynamics within a given context.
Transforming systems is people driven and led, it is a fantastic journey.
Kituo cha Sheria, an organisation that has been doing legal empowerment work in Kenya for 48 years, defines transformation as restoring a particular person or a system beyond what it used to be to a much better place. For example, if someone had faced injustice you don’t only restore them to that position they were before that injustice, but they are even at a much better place than they were at that moment the injustice took place.
Organizations acknowledge that transformation should not be just about transforming individual lives but also transforming systems and that this does not happen overnight. We are fighting deeply rooted structural inequalities, change will often be very slow and incremental. In Somaliland, as in many African criminal justice systems, the system is designed to arrest, convict and keep people in prison for as long as possible. However, a system constitutes people. CLDC in its approach tries to change the mindset of the judges, police officers, prosecutors and prison officials, one person at a time.
Recently, we (CLDC) were helping a young mother, who was arrested and accused of trading alcohol, which is a crime in Somaliland. The young mother was imprisoned together with her 2-month-old daughter. In court, the judge asked the CLDC lawyer why he was representing the young mother, yet it was against Sharia to trade in alcohol. The lawyer responded that everyone deserves a defense no matter what they are accused of.
The lawyer used the opportunity presented to him to speak to the broader roles of the law- it defends and protects. The law is for all. This is particularly important to underscore because in most contexts, persons deemed as ‘guilty’ - are not offered the protection of the law.
Transformation can also be seen in repeat clients or an increase in number of clients. For a repeat client, it is worth trying to establish if there is some change in them. Do they know the law, now? Have they tried to use the law to solve their legal problems? Did they share the information with their families or neighbors? More often than not, repeat clients come back more knowledgeable about the law and their specific justice problem. Once you share the relevant legal information with communities, it stays with them for a long time, no one can take away that knowledge from them and this in itself is transformative as communities can now decide to change their lives with the information they have. Repeat clients usually see the value in the information shared and support given. An increase in the number of clients can also mean that more people are now aware of their rights, they know where to get justice, and they want to be proactive in getting this justice, they want a say in what this justice will look like. That people are confident and willing to challenge systems, especially in contexts where communities were too scared to speak up, is a big win. The Citizenship program in Kenya notes that the simple act of accompanying a person to apply for their identity documents is transformative as clients become internally and externally confident to assert their rights - they feel confident that they know the law and that they have the support of a team that can help them navigate the barriers in accessing their identity. A client knows they are not alone in the struggle.
Legal Aid Forum (LAF) in Rwanda believe that they have substantially transformed the lives of their beneficiaries. In 2017, LAF conducted research on barriers/ challenges in accessing justice in Rwanda. Among many other things, the research revealed that there is a general lack of awareness of laws, people had to travel long distances to get a legal aid provider or justice, some legal processes took very long, people could hardly afford justice and that legal services are expensive. As a solution to these challenges, LAF embraced technology. First they conducted a survey of the most popular laws, summarized this content and put this in audio and text format. With simple mobile phones, people are then able to access this legal information free of charge via SMS without leaving their homes. People are also able to call a toll-free line should they need more information. Should there be a need, LAF provides lawyers at no cost. In 3 years of this service being set up, LAF had reached more than 1,000,000 Rwandans and stories from the ground illustrate how lives have been changed.
For the past 16 years, HiiL has focused on the ordinary person ; understanding their needs and their justice journeys. A justice survey conducted by HiiL in partnership with the judiciary in Kenya found that only 10% of Kenyans use the formal justice system to resolve their disputes. One consequence of access to justice problems in the formal legal system is that many Kenyans resort to alternative systems of justice, such as mediation processes facilitated by paralegals and community-based traditional justice systems. This finding contributed substantially to the development of Kenya’s Alternative Justice System (AJS) Policy, which proposes a legal framework that systematizes the use of various AJS models whilst linking the informal and formal justice systems. Through the Open Government Partnership platform, Kituo is collaborating with the Judiciary on the implementation of the AJS policy. This policy greatly transforms the way in which people can access justice.
HiiL’s approach to transformation is driven by people centered solutions. So far, Hill has supported 175 innovators who come up with solutions to address everyday justice problems. The innovations must be validated by the communities they intend to serve. Out of this initiative there has been a mushrooming of innovators, working in communities, understanding their needs and building for their communities.
Frustrations in transforming a system is an all too familiar feeling, especially for organizations like Kituo that use strategic or public interest litigation to shape a system or change a bad law. Paper victories are common, and they are wins that should be celebrated. However, a win in court does not necessarily translate to a win at grassroots level, especially in cases where enforcement of a judgment comes up against the very structural challenges we are trying to overcome in the first place. As in PAN’s observation, when a system is not changed, there will be a pattern of repeat violations and an increase in the number of violators. In Zambia, there is an increase in the number of companies that continue to violate workers rights - there needs to be a fundamental shift in the labor policy framework for there to be tangible change. In the absence of this, PAN continues to create awareness for workers and remedy is at an individual level.
In HiiL’s case, the challenges have come from the formal justice system. What justice innovators propose as justice solutions does not fit into the straightjacket definition of what some actors within the formal system consider ‘acceptable’. As has been seen with the concept of community based paralegals, some advocates strongly feel that some innovations are encroaching into their space and threatening their livelihoods. Consequently, some innovators abandon their innovations as the push and pull weighs down on their work.
Challenges come from the very communities we work with. PAN gives the example of victims of gender based violence who report the violation and the police begin their investigations. During this process, some victims disappear only for PAN to later find out that family members of the victim have convinced them to drop the matter, especially where a family member is concerned. This is especially the case if the perpetrator is the breadwinner. Consequently, it becomes difficult to proceed with the case. This is not only a question of culture, it is also a question of poverty. Deep-seated inequalities force people to make unfair decisions between choosing justice and reporting a perpetrator who is the breadwinner of a family, or choosing economic support and abandoning the path to justice.
Despite the challenges, organizations acknowledge that there has been some change and improvement, even if it is not on the scale we hoped for. Transformation can be appreciated on a case to case basis. For instance, when you have a case involving an individual whose land was taken away and through a court decision is able to reclaim their land, or when you are able to bring some evidence in court that sees the release of a juvenile- it is transformative to get a child back home. These are great wins. The development, adoption and implementation of various legal aid laws, and the AJS policy in Kenya’s case, after years of advocacy, is a tangible transformative outcome. Within these frameworks in Kenya and Zambia, the State is obligated to provide legal aid services. For the very first time, the work of community based paralegals is legally recognized. This is a tremendous win that must be celebrated as we keep pushing for the full realization of legal aid laws. We need to be constantly on the lookout for those small positive changes and continue to build up on them for much bigger systemic change. Transformation can take place in different stages or phases of the legal empowerment process.
Legal Empowerment organizations should have more self reflection sessions and not just with external partners but internally. There is a danger in practitioners being really quick in implementation of activities, but not taking time to analyze lessons from the ground and what can we do differently to get better impact.
The starting point of any intervention should be the beneficiary. We need to consult more meaningfully with communities to better understand their justice needs and use approaches that suit them for us to attain the change that we need. We need the community to drive the change.
Legal empowerment approaches should be more alive to the emerging issues and changing contexts. Most of us are operating under difficult circumstances, with shrinking civic spaces, lack of adherence to the rule of law and a complete disregard of constitutionalism. How have we adopted our approaches to reflect these changes? Or are we employing the same tactics and expecting different outcomes?
Organizations should focus more on quality and depth. Let us look at one life at a time. Have we been able to meaningfully change the life of that one client, who came to the office in search of legal aid, or who inquired about a legal problem through an SMS platform? For the paralegals we train, how do we support them to use the knowledge we have shared with them to bring change within their communities? How can we help them to use their knowledge that they have gained to bring change within their community? An organization can train 100 paralegals in a year or claim to have reached 10,000 clients, but one may find that out of the 100 trained paralegals, only a handful are serving communities. In addition, supervision of many paralegals presents its own challenges, thereby bringing into question the quality of legal aid services offered to communities.
We should collaborate more, especially when carrying out advocacy work. When we, working on one issue, speak with one voice and in one language, we are more likely to achieve more policy change.
Embrace a hybrid approach to technology. Kituo had begun using mobile phone based technology in 2015 to not only address the cost in accessing legal advice, but to address the logistical challenge in accessing offices where legal aid is offered. Being able to adapt to various justice needs in this way is what has kept Kituo going for this long. The COVID-19 pandemic has forced many organizations to use technology in carrying out their work.
However, we need to approach technology with caution. As HiiL advises, the general rule should be to meet people where they are. We are working within a space where transforming systems remains a great challenge, and the digital gap makes it even more difficult to realize the change we would like to see as a sector. In Tanzania, there is a decent percentage of mobile phone penetration. Based on this, an innovator designed a legal services application to make legal education accessible. However, what the innovator did not take into account at the time was the high cost of data. People would only switch on their data to do 1-3 things, then switch off their data. Looking for legal advice was not one of these 3 things. In addition, a majority of the smartphones were low grade. This means only a certain number of applications could be supported by the mobile phone- people were generally not willing to delete their other applications to make space for the legal services’ application. It just did not make sense. In Somalia, there was another innovator trying to provide legal knowledge around a reporting system for gender based violence. This service mostly targeted women. However, in most Somali households, the men own the phone, not the women that the solution was targeting.
Technology is good in terms of scalability, but not on its own. A hybrid approach, as in the case of CLDC in Somaliland, where an organisation uses both technology and in person connections is more effective.CLDC uses simple mobile phones as their main form of technology through which they are able to identify people who need assistance. They have also successfully given legal advice over the phone to persons who are in remote areas or in towns where CLDC does not work. However, within the criminal justice space, there is no substitute for proximity to people who are detained. There is no replacing sitting across from a mother or father, who is upset because their teenage son is arrested, and he cannot go back to school. In South Africa, an innovator saw that in the townships there are a lot of offices providing legal aid, but a majority of them handle thematic specific cases. The innovator created a platform that connects all legal aid offices to each other, making it easy to refer cases that are not within one’s scope. In this case, technology connects legal service providers to be able to intervene early enough, in whatever locality, once the client is paired with the appropriate service provider, services are administered in the traditional way.
The use of radio to create awareness has been effective to an extent. As Haguruka in Rwanda shared, they used radio to create awareness about their toll-free line and within 2 months they received requests from 200 beneficiaries. The number gradually increased to 800 people seeking legal advice in one month. However, Haguruka notes that while radio can reach numerous people, it is difficult to measure the impact of legal education on the listeners.
Perhaps the challenge for legal empowerment organizations is to work with stakeholders to shape technology laws that address the digital divide. In this way, legal empowerment may be better supported by technology.
What does legal empowerment mean to you? We would like to hear your thoughts. Click on the reply button down below to engage with us.
PS: Part II of this conversation will focus on the term impact; what does it mean to legal empowerment practictioners and programs? Feel free to reach out if you are interested in joining the conversation.