Lawyers for the poor

Anton Y. is supposed to be released from prison tomorrow. An officer at the relevant ministry wants to order his parole. Two fellow prisoners are to be released as well. The officer needs a form for each prisoner, but there is only one form left. So she enters the names of all three prisoners on the same form and delivers it to the prison messenger the next day. The prison messenger puts the form in the file of the first inmate, who is released as planned. Anton Y. and the other prisoner are not released, however, because there were no forms for them. Six months after Anton Y.’s two-year sentence for stealing a motorcycle ended, he is still sitting in his cell.

How could such a miscarriage of justice happen in an African country? Was it personal sloppiness, as might appear at first glance? Not at all. The ministry officer knew that the lack of forms shouldn’t prevent all three prisoners from being released. Therefore she deviated from standard procedure and altered the one remaining form. The prison messenger, on the other hand, simply thought "one form – one file". Many prison employees are illiterate. The messenger followed the rules. Indeed, adhering to established procedure is necessary for a justice system to work properly.

Nonetheless, the story of Anton Y. shows that the prison administration and the ministry need to improve their operations and that they obviously do not communicate well enough. It is important to recognise that all these things are interconnected. More training for the prison employee wouldn’t help matters in the long term. The ministry itself has to improve the way it manages forms. For instance, it should create forms that conform to legal requirements, and it must make someone responsible for ordering new forms from the printer in time, so the ministry cannot run out of forms, as it did in Anton Y.’s case.

For these measures to be taken, the developing country must be willing to learn from mistakes – and implement the changes it deems necessary. Improvements will not happen unless people are willing to learn. When the GIZ cooperates with a country on behalf of the German government on legal and judicial reform, both sides learn by trial and error. Learning from failure is the best way to move forward.

Good monitoring can ensure that failures like the one that affected Anton Y. are recognised at all. It would reveal that ministry employees continue to run out of forms despite whatever preventative action they have taken. Additional inquiries would show that the printer regularly withholds ordered and printed forms because of the ministry’s failure to pay, and that the ministry needs a strategy to ensure reliable payment and to stop corrupt practices whenever possible.

This example illustrates what GIZ has learned in many years of experience: projects create learning opportunities both for the GIZ and its partner institutions. Monitoring and evaluation help to observe and analyse impacts in the socio-political context as well.

Deviations from standards signal that something needs to be done. It makes sense to consider every problems a part of the learning process. This low-key approach can be incorporated into day-to-day routines, which are then improved step-by-step.

Questionable customary laws

Many relevant GIZ projects focus on the state judicial system. However, customary judicial institutions matter very much in many developing countries – not only in Africa. Customary law is traditionally passed down from generation to generation. It reflects a culture’s values. Its norms, values and institutions exist alongside official law. In general, the people who have no access to official law rely on customary law. They typically make up the majority of the population. Most of them live in poverty.

The GIZ has learned that both official and customary law systems have advantages and disadvantages. The formal judiciary is often inaccessible to the poor because:

• it is too expensive,
• it is not present at the local level, and
• it uses an impenetrable jargon and often the foreign language of a former colonial power.

In any case, the poor are unfamiliar with official law. Conversely, the customary legal system is affordable, its dispute-resolution methods are familiar and the traditional authorities are accessible to everyone in the villages.

Unfortunately, decisions that are based on customary law are likely to discriminate against specific groups of people and are not always in line with human rights. In particular, women in rural areas are adversely affected. Moreover, conflicts between rich and poor villagers are also not always resolved in a fair manner. Those who belong to the influential upper class usually get their way.

To achieve progress, development agencies must take customary law into account. At the same time, the poor’s access to state courts must improve. Terms like "access to justice" or "legal empowerment" refer to building bridges between customary law and the state judicial system.

Flexible reform

Costs often hinder poor people’s access to the official justice system. The issue is not court fees, but lawyers’ fees. These are typically too high. In Germany, the government covers the cost of a lawyer for those in need. But the governments of developing countries usually do not have the financial means to offer this type of legal aid.

An alternative is to rely on paralegals, who have no formal legal training, but nevertheless understand the issues. They advise the poor at little or no cost. Paralegals normally work in the regions they come from. Both the local police and the village leaders who administer customary law trust them.

It makes sense to establish a system of paralegal experts, but doing so is often opposed by influential groups in civil society. The organisations of the legal profession in the country concerned have obvious objections. From the lawyers’ point of view, paralegals’ "dujmping prices" are likely to a have a harmful impact on the market for legal services.

West African countries tend to have a dual market for legal services. Lawyers work more or less exclusively in cities – which reflects the limited reach of official law. In rural areas, people rely primarily on customary law. When a paralegal system is to be established, the objections of the legal profession cannot be ignored. A compromise must be reached.

Consultative and inclusive

Such a compromise can be reached in a negotiation process. There often is a great deal of mistrust between private actors in civil society and business on the one hand and the government on the other. The art of negotiation and of reconciling competing interests is underdeveloped in many poor countries. That is particularly true in fragile states. Since the GIZ is accepted by state and non-state actors alike, it can serve as neutral mediator, initiating and moderating negotiations.

Such processes often change the way relevant actors relate to one another. Sierra Leone is an example. Working on behalf of Germany’s Federal Foreign Office, the GIZ acted as a mediator, making lawyers overcome their initial reservations and agree to the Legal Aid Act proposed by the government. Compromises had to be reached not only with the legal profession and the Ministry of Justice, but also with the NGOs that run paralegal services.

Fortunately, all of the relevant actors in Sierra Leone knew the GIZ and respected its contribution thanks to the agency’s other activities. It made sense, moreover, to share insights on paralegals’ work in other African countries.

In Sierra Leone, people from the GIZ’s various partners met personally for discussions and working groups. They built a basis for trust, and they continued to enjoy each other’s trust after the law was passed. Their personal relationship grew stronger as their mutual understanding improved, which, in itself, contributes to improving governance long term.

This example shows how legal and judicial reform must go beyond simply conveying knowledge. Implementing reforms in a consultative and inclusive way is the key to achieving results that are socially accepted and will last. This is particularly true in the field of justice.

The story of Anton Y. is sad. But it is comforting to know that many developing countries in Africa, Asia and Latin America are implementing legal and judicial reforms in order to protect human rights and improve the rule of law. A healthy legal environment promotes economic and social progress. Furthermore, many of GIZ’s partner countries are establishing administrative courts, which will give citizens new options for putting a check on government agencies. On behalf of the German government, the GIZ is supporting relevant reforms through a variety of projects. By promoting the introduction of a paralegal system in the African country that Anton Y. lives in, for example, GIZ hopes to improve access to justice for prison inmates.

Lothar Jahn is a GIZ consultant and supports GIZ projects that promote legal and judicial reform in southeastern Europe, Asia and Africa.
lothar.jahn@giz.de