Increase financing and recognition for community based paralegals
As part of the NGOs FORUM 69th Ordinary Session of the African Commission on Human and Peoples’ Rights, organizations in Africa led by the African Centre for Democracy and Human Rights Studies (Gambia), Africa Centre of Excellence for Access to Justice, Paralegal Alliance Network (Zambia), Legal Resources Foundation (Zimbabwe), Paralegal Services Institute (Malawi), Kituo cha Sheria (Kenya), Community Advice Offices (South Africa), The Pathfinders for Peaceful, Just and Inclusive Societies and the Legal Empowerment Network organized a virtual side event on Access to Justice which took place on 12th November.
This virtual side event brought together paralegals, and organizations that support paralegals, from across Africa, policymakers, and state officials to continue a continent-wide conversation on how they can work together to support and bolster the important work of community-based paralegals.
A significant amount of access to justice work in Africa is led by community-based paralegals who work directly with communities. However, two main challenges hinder this significant work of justice: financing and legal recognition of community-based paralegals.
The session was inspired by AU Agenda 2063: The Africa We Want, which identifies justice as a key aspiration for member states. Agenda 2063 is to a great extent, aligned to the Sustainable Development Goals (SDGs); which are designed as a “blueprint to achieve a better and more sustainable future for all”. Of particular relevance is Aspiration 3 of Agenda 2063 which, through one of its enabling goals, correlates significantly with SDG 16. Their correlation amplifies the commitment to access to justice, on the continental and the global level, of the member nations of the African Union who also belong to the United Nations.
Putting people at the center of what we do is key to achieving sustainable justice
In Kenya, less than 10% of the population has access to formal courts, while the other 90% access justice using alternative justice systems. Kenyan law supports the use of alternative dispute resolution mechanisms to resolve conflict. However, the judiciary is currently grappling with how decisions from these alternative fora can be integrated into the formal justice system for accountability and documentation. Community-based paralegals could bridge this gap by documenting the disputes solved outside the formal justice system and filing them in court ; thus integrating the two spaces.
“Community-based paralegals are an important pillar in building the bridge of integration. They speak the languages of the community, they are well committed to cultures and the sense of restorative justice, and can act as record keepers of alternative justice systems to ensure judgment passed under these systems are filed in formal courts so that they become judgments that can be enforced in the future.” ~ Prof. Willy Mutunga
Mutual learning between the formal and alternative justice systems is critical in making law more responsive to the needs of people. This exchange has the great potential to enrich jurisprudence. The formal systems could borrow a leaf from the alternative justice systems where procedures are less rigid, conflict is resolved through consensus and restoration is a preferred outcome of a dispute. In this way we decolonize the formal courts and make the path to justice an empowering one; focused on people.
Community-based paralegals are instrumental in promoting people-centered justice in Africa. Unfortunately, paralegals are not formally recognized by most governments in Africa, neither do these governments provide resources to support the work of paralegals. The movement is at risk.
To sustainably address the existing justice gap in Africa, and support the crucial work of paralegals, we must strengthen partnerships between governments, civil society and legal sector actors. The Open Government Partnership (OGP) model formalises partnerships between civil society and governments and greatly improves engagement through multi-stakeholder initiatives. This is a proven impactful way of addressing access to justice challenges.
Advocates can be powerful allies of community-based paralegals.
The legal profession has been seen, in some instances, as an obstacle to the formal recognition of paralegals. Issues such as quality control, rigorous training, ethics and accountability of paralegals have been raised as concerns.
Advocates acknowledge that they cannot do the work of ensuring access to justice for all, alone. Several countries in Africa inherited their judicial system from former colonial powers- an infrastructure that has not developed to meet the justice needs of people , especially outside of the urban centres.
Community paralegals are therefore crucial in transforming the legal profession by accessing and opening up spaces out of reach by advocates.
“The legal profession shouldn’t be seen as blocking access to justice, but as promoting it. Make no mistake, the justice system is an ecosystem that benefits both community paralegals and lawyers.” ~ Stanley Nyamanhindi
In a continent where disasters keep expanding the gap between the rich and the poor, where civic spaces continue to shrink, it is crucial to have all justice stakeholders, working together, to change minds and attitudes, and come up with practical frameworks to ensure quick, affordable and accessible justice for Africans.
There is a great need to have critical conversations between the legal profession, governments, and civil society organizations working with paralegals, on how they can partner to bridge this gap and ensure that justice delivery and human rights responsiveness is more people-centered. Stakeholders urgently need to find an agreeable framework on how to regulate, train and recognize paralegals.
Sustainable funding is key to achieving access to justice for all.
Approximately two-thirds of the world’s population, that is 5.1 billion people, lack access to justice. For the longest time, the responses to injustices suffered by communities was, and have been, through legal aid. However, most legal aid approaches are top-down, and do not include the voices of communities, making systemic change very slow.
Grassroots legal empowerment organizations have been identified as a sure way of promoting access to justice for all. However, they work under the threat of closing down anytime because their programs are underfunded, and accessing resources can be really cumbersome. By availing sustainable funding avenues and mechanisms, and relocating the power in the grant making process closer to the people it affects most, funders strengthen and empower existing grassroots justice groups to help communities access the law and secure justice.
A perfect example of such a funding body is the Legal Empowerment Fund (LEF). The Fund seeks to provide local groups with renewable, long-term, core funding that would enable them to address inadequate legal protections and lack of access to justice.
“Meeting the needs of legal empowerment groups by ensuring that they have adequate resources and that we meet communities where they are, is really important for us” ~ Atieno Odhiambo.
To bring about systemic change, it would be incredible if governments and other funding bodies emulated the Fund in involving the whole ecosystem in the process. LEF seeks to make grant making very participatory by speaking with and consulting different stakeholders, including grassroots and grasstops organizations, academics and donors, with the aim of understanding the needs of those on the ground.
LEF focuses on funding the justice ecosystem irrespective of thematic area. By giving the authority of thematic focus to the grantees, donors not only ease the application process, they also open up the fund to many organizations from the grassroots. This makes grant making people centered and more about the lived reality of the communities.
To make a better investment case and also widen their funding net, community based paralegals could identify and work with allies who aren’t traditionally in the judicial system. Such allies could include healthcare workers, schools, farmers, cultural practitioners, etc. This is not only because access to justice cuts across many other goals and aspirations such as access to healthcare, zero hunger, quality education among others, but also because access to justice is really a multi-stakeholder goal.
The role of the state in recognizing and working with community based paralegals.
Many African countries are grappling with the question of recognizing and regulating the community based paralegal sector. It is important to note that the call for regulation is coming from the justice sector itself. The sector wants to be accountable and ensure that it is not creating a harmful environment for community members, and that their safety mechanism of making sure that access to justice services are delivered, particularly at community based level, does not cause further marginalization to already disadvantaged and disenfranchised communities.
Nigeria has so far been successful in formalizing paralegal services. The Legal Aid Council of Nigeria has been mandated to ensure that people access justice. They do this by working with both formal institutionalized paralegals and individual community based paralegals.
As any other pioneering body, the Legal Aid Council of Nigeria has faced a number of challenges in the implementation of legal aid. One major challenge has been standardizing the work of paralegals in order to reduce cases of exploitation. Together with institutions that work with paralegals, LACON recently came up with a code of ethics that is intended to guide paralegals in their work.
Another challenge has been the issue of licensing and regulation. LAC Nigeria is currently in talks with major tertiary institutions in Nigeria to adopt their curriculum to ensure that there is formal training of paralegals and licensing. LAC commits to the licensing of paralegals in 2022.
LAC Nigeria looks to hold conversations with corporate and other donor funding agencies about supporting the work of community based paralegals and investing more in people-centred justice .
What happens next?
- The outcome of this conversation was presented at the 69th Ordinary Session of the African Commission on Human and People’s Right to form the basis of advocacy on increased financing and recognition of community based paralegals and how this relates to achieving the AU 2063 Agenda.
A follow-up meeting between legal empowerment practitioners and the AU will be set-up to discuss in detail how we can work together to increase support and funding for Aspiration 3 and how we can implement people centered justice in the next 10-year phase of Agenda 2063.
Strengthen linkages between Aspiration 3 and SDG16 to support advocacy at the global stage.