OGP and Access to Justice: Lessons from Sierra Leone, Indonesia and South Africa

Justice organizations in Kenya held a roundtable discussion on the benefits of the OGP Platform in promoting access to justice in Indonesia, Sierra Leone and South Africa. This meeting comes against the backdrop of Kenya submitting its first justice commitment.

Kenya’s Journey

Kenya joined the OGP platform in 2011. In 2016, the office of the Deputy President took over coordination of the OGP because the process needed an entity that had a coordinating mandate and that could impress upon ministries and agencies to stay committed to the co-creation process with civil society.

Between 2016 and 2019 Kenya has been fortunate to have facilitated the participation of both civil society and government actors in the OGP platform and is now perhaps one of the few countries that has, in the OGP steering committee, representatives from both government and civil society. Since its inception, Kenya has developed four national action plans, five sub-national action plans and has had 70+commitments.

There are four core areas that Kenya focuses on:

  1. Openness: how to increase access to innovation and diversify solutions for government, civil society and private sector for accountability
  2. Proactiveness: use of the OGP platform especially for change and to enforce transparency and accountability.
  3. Data: How to use data as much as possible for evidence and learning.
  4. Ownership: How to link OGP with existing frameworks.

The Access to Justice Commitments

It is exciting to note that for the first time, in its 4th OGP National Action Plan (NAP 4) Kenya explicitly includes an access to justice commitment focused on the implementation of the Legal Aid Act and the Alternative Justice Systems Policy. Access to justice remains a high priority especially for indigents without delays or denial. Both the Legal Aid Act and Alternative Justice Systems are imperative as they set in place legal and policy frameworks for the promotion of access to justice in Kenya. More about the commitment here : OGP: Kenya’s new commitment on Access to Justice

The main objective of the justice commitment is to increase citizen participation in justice delivery, promote transparency and accountability through the use of local alternative justice systems, while at the same time, expand legal aid capacity by supporting the indigent communities. This is particularly important because following the COVID-19 pandemic, there are a number of changes within the justice sector that have widened and exacerbated the justice gap. The introduction of virtual court sessions leaves out a majority of Kenyans who cannot access or use the internet. The OGP platform is a good opportunity to collaborate with the government to make justice accessible, as opposed to having civil society organisations push from the outside.

Sierra Leone is implementing its 3rd NAP which focuses on increasing access to justice through community-based justice services. This is an extension of the previous access to justice commitment of its 2nd NAP that had focused on increasing transparency in case management and establishing justice structures at the local level. Similar to Kenya’s commitment, Sierra Leone is building off of the government’s own policy agenda: ensuring access to justice by expanding community-based justice services. This also features explicitly in the present government’s policy agenda, which plans to overhaul the judiciary and justice service delivery in the country, particularly after the justice system has largely been decimated after 11 years of armed civil conflict in Sierra Leone.

Part of Sierra Leone’s government’s plan is to restore public confidence in the independence and impartiality of the justice system. Other plans include making justice accessible and available for all, by training a cadre of paralegals to support the sector, especially in the more extreme rural communities where services of trained legal practitioners are sparse. While the government’s agenda includes strengthening the country’s legal aid program, continuing to provide legal aid services to indigent and vulnerable citizens requires going beyond the services of the government paralegals provided through the legal aid board and includes community justice services provided by civil society.

In South Africa’s 3rd NAP, the justice commitment was largely influenced and informed by SDG16; viewing the sector as an enabler of driving justice that is accessible for marginalized communities. The commitment focused on institutionalizing community based paralegals through the Community Advice Offices as part of its wider justice network. It is important to note that this was the only commitment that was led by a civil society organization. The Community Advice Offices were looking at recognizing the essential nature of their work; starting on the formulation of a regulatory framework or legislation that was also going to address the issue of how these offices were going to access funding.

In Indonesia, the Indonesian Legal Aid Foundation engaged in the 2018-2020 cycle of OGP process to develop a justice sector commitment, particularly in improving the national legal aid system. More specifically, Indonesia committed to expanding and increasing the quantity as well as the quality of legal aid service through three targets: increase in the number of legal beneficiaries, increase in the number of local regulations on legal aid, and to improve satisfaction index by up to 25%.

However, it is important to note that, in Indonesia, co-creation with the Legal Aid Development Agency under the Ministry of Justice had been happening outside of the OGP process and that there had been substantive progress and achievement. For example, the local regulation which aimed to provide local funding to support legal aid had already been drafted and released before 2018. It was therefore decided to adjust the targets without changing the main justice commitment. The target is now, first, focusing on providing assistance to the local government in drafting local regulations, secondly, promoting the legal aid provision for the vulnerable, and third is drafting and implementing the legal aid quality standard.

"OGP is not only just an excellent model, it’s a necessary model." Tshenolo Tshoaedi- Executive Director- Community Advice Offices-South Africa

The discussion acknowledged that, just like in Indonesia, there is great work going on outside the OGP platform. What OGP brings to the table is its network value: OGP convenes, connects, and catalyzes specific actions very much centered on citizens in a way that focuses on the values of transparency and accountability. It is a great way to achieve both civil society and government agendas.

Kenya’s experience with the OGP from 2011 shows that the platform has been looking at ways to incorporate technology that is inclusive and amplifies the voice of citizens, especially around responsiveness and service delivery. Secondly, OGP gives access for engagement and co-creation. It brings together organizations to engage with the government and contribute empirically through evidence. Third, there is historical collective memory: where actors in the co-creation space can hold each other accountable and can map out the progress incrementally. For example, in its first NAP , Kenya had judicial commitments related to the ombudsman’s office, putting together the National Council on the Administration of Justice and developing a platform that facilitates allocation and tracking of cases. Now at NAP 4, Kenya is looking at the judiciary in terms of those who are actually on the margins of justice even with the implementation of these robust systems.

Given their experiences in the previous action plan cycles, The Indonesian Legal Aid Foundation learned that OGP can be a strategic platform to pursue civil society advocacy in improving the national legal aid policy. In the 2020-2022 National Action Plan cycle, they are working towards the involvement of more civil society organizations who are working in the justice sector to propose more commitments around legal aid reform.

For Sierra Leone, the OGP platform provided an opportunity to take a look at the government’s commitments to promoting access to justice and build on that foundation. Often the government-civil society relationship is regarded as antagonistic, but OGP’s co-creation opportunity really helps to emphasize that we’re working toward the same goal. For instance, the access to justice commitment in the 3rd NAP consolidates the government’s commitment to achieving SDG 16 and as well as the Open Government Agenda, which are inextricably linked. The Ministry of Justice in Sierra Leone announced a number of plans, including using data to better understand people’s justice needs and why people want to resolve their disputes informally or through customary justice. Although some data already exists, OGP’s emphasis on open data is vital to building the evidentiary base needed for the relevant community-based justice structures by not only looking at what already exists, but also expanding on those that do exist. For South Africa, the OGP platform converged a bigger pool of stakeholders not only for co-creation, but also as a support and accountability mechanism.

"One factor to be considered for successful implementation of these commitments is that the government doesn’t have to do this alone because it does not necessarily have the capacity or the full expertise to solely implement. That’s why the co-creation process is great. A multi-stakeholder implementation approach involving the ministry of justice, the judiciary, the legal aid board, local courts, paralegals, community-based justice service providers, chiefs, local councils etc. would really work best. It’s important that all of these actors have the space and be part of this process and have the support to be able to all work toward their common goal." Eleanor Thompson- Namati, Sierra Leone

Challenges and lessons moving forward

The OGP process has had its fair share of challenges and lessons learned, which are being used to rethink and inform strategies.

The Sierra Leonean experience inspired actors to think out of the box regarding what justice should look like or means. There’s a need to shift perspectives and emphasis of those who lead justice sector work, especially if one comes from a traditional sort of legal background. Justice means different things to everyone and by its very nature, accessing justice is determined by justice seekers. Access to justice must be demand driven. There is a need to have consistent participation from all stakeholders. One of the ways of addressing this is by getting everyone, especially technical persons involved, early on in the process. This will not only ensure their buy-in, but ownership of the agenda, which translates to the high-level political commitment needed for implementation.

In Indonesia, there was a lack of political will and openness to co- create with civil society. From this experience, it was appreciated that there is not only a need to build awareness of OGP to various stakeholders, but to also identify a champion from within the government to support the OGP commitment.

The question around human and financial resources was always raised, especially since the process of drafting the commitment came after the national budget had been finalized. To enable civil society organizations to intensively monitor and engage with the government in realizing the commitments, there is need for continuous support from international and/or national funding agencies who have similar commitments in the justice sector.

In South Africa, both civil society and government experienced transitions that presented challenges in the implementation of the justice commitments. The champion, at the forefront of implementation from the side of civil society, passed away suddenly and the sector was unable to take leadership to move the commitment forward. Recall, that this particular justice commitment was being led by civil society. On the side of the government, the minister who was a champion and ally was moved to another ministry, causing a lull in implementation as it was not clear who was leading the process. However, it is important to note that access to justice work was still going on on the ground due to the formidable support system in terms of donor funding organizations and some civil society organizations that had been involved in the OGP process.

Lessons from the past have informed Kenya’s strategy in working towards a smooth transition. Kenya has not only deepened the bench, but has created an echo chamber around open government and the value it brings. The steering committee of the OGP process, which was mainly made up of the Executive, has been opened up to other arms of government, that is the Legislature and the Judiciary. Beyond the steering committee, there is a technical committee and cluster groups composed of government and civil society leads, which work together on their respective commitments. Meetings and briefs held with OGP leads are documented for reference and to facilitate a smooth handover when political transitions happen.

You can access the full recording here: https://youtu.be/un_RQs

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