Access to justice and legal empowerment

Legal empowerment is a key ‘demand-side’ response to addressing deficits in the rule of law. It entails extending legal provisions to the poor, and encouraging them to be more proactive in claiming their rights (Roseveare, 2013). Legal empowerment initiatives enable citizens in actively using the law and shaping it to their needs.

According to Maru (2010, pp. 84-85), five key principles define legal empowerment:

• Concrete solutions to instances of injustice: Legal empowerment seeks to solve people’s daily problems of injustice, including intra-community disputes and rights abuses that arise from traditional authorities, state institutions and private firms.
• A combination of litigation and high-level advocacy with more flexible, grassroots tools: Including community education, organising, local advocacy, and mediation along with the use of litigation and high-level advocacy.
• A pragmatic approach to plural legal systems: Engaging with a range of providers, building linkages between then and advocating for their evolution.
• Empowerment: Cultivating the agency and power of the people.
• A balance between rights and responsibilities: Ensuring self-sufficiency by supporting community and self-help organisations and by advocating for the fulfilment of citizen obligations.

Legal empowerment interventions include the provision of legal aid and community paralegals, capacity building and awareness-raising for both citizens and providers (UN, 2011a), and public interest litigation. The right to legal aid in criminal cases is enshrined in many human rights treaties and in most national constitutions. In fragile and conflict-affected contexts, formal legal aid schemes are often established, but are limited by the lack of lawyers in the country. Other civil society initiatives, such as reliance on community paralegals, can provide awareness-raising, advice and mediation (Maru, 2010b).

Public interest litigation, whereby concerned individuals or civil society organisations take legal action on behalf of the general public or disadvantaged groups, aims at social change beyond the outcome of that particular case. Such litigation and subsequent political action can contribute to structural change that influences societal inequalities. In some cases, constitutional and judicial reform processes can result in a rise in public interest litigation. If its efficacy is not evident, however, such use of legal action as a strategic approach to change can lose perceived value over time (Domingo and O’Neil, 2014).

The importance of access to justice and property rights

Ensuring access to justice and establishing the rule of law through institutional reform and the removal of legal and administrative barriers are central to legal empowerment. Laws are ineffective if citizens cannot use the justice system to realise their rights, or if the institutions enforcing the law are ineffective, corrupt or captured by elites (CLEP, 2008).

Women, youth and other socially excluded groups are particularly likely to face barriers accessing justice institutions. These groups can be excluded because institutions are remote and unaffordable and they lack the time and resources to access them. They may also be unaware of their rights. In other cases, the institutions themselves may be discriminatory.  In many countries, women’s access to justice is obstructed by statutory and customary law that is biased against women, or is not gender-sensitive. Young people also have specific needs related to their age and vulnerability. They are particularly susceptible to mistreatment and abuse by the police and other justice sector personnel, and are also affected when parents or guardians are victims of crime or are sanctioned through the justice system. Youth need to be recognised as rights holders, and juvenile justice systems must be designed and implemented in line with children’s rights (Grandjean, 2010).

Property rights are a key pillar of legal empowerment. Family law, inheritance law and property rights, including dispute resolution, are key issues in extending access to justice to citizens, particularly for women. Women are often dependent on men to inherit land and housing and to gain access to land. Property rights have an economic role in that they contribute to the protection of economic assets and secure livelihoods. They also help to establish clear ties of rights, responsibility and recognition within a community. Vulnerable groups and women suffer the most from a lack of property rights. In many contexts, the state does not provide adequate protection of property rights to the poor, who are subject to arbitrary evictions without compensation, and powerlessness in disputes over assets with powerful actors (CLEP, 2008).

The role of legal empowerment in improving accountability

Legal empowerment can contribute to increasing accountability through a combination of advocacy, mediation, education, organising and litigation to make dysfunctional legal systems work for citizens. Local authorities and service providers can be held to account through social accountability measures that involve the participation of citizens in monitoring and advocacy (Maru, 2010). The accountability of providers to women and vulnerable groups, including women, can be improved. Experience from Papua New Guinea shows that rights awareness raising activities involving village courts and village leaders, as well as youth and women, enabled the latter to better understand and claim their rights. As a result, women have been accepted as village court officials and play an active role in monitoring decisions (UN 2011a).

• CLEP. (2008). Report of the Commission on Legal Empowerment of the Poor: Volume 1 – Making the Law Work for Everyone. New York: Commission on Legal Empowerment of the Poor/UNDP.
  See document online
• Maru, V. (2010). Allies Unknown: Social Accountability and Legal Empowerment. Health and Human Rights in Practice, 12(1), 83-93.
  See document online
• Maru, V. (2010b). Between law and society: Paralegals and the provision of primary justice services in Sierra Leone and worldwide. New York: Open Society Institute. See document online
• Roseveare, C. (2013). Rule of law and international development. London: DFID.
  See document online
• UN. (2011a). Progress of the World’s Women 2011-2012: In Pursuit of Justice. New York: UN Women. See document online
• Domingo, P. & O’Neil, T. (2014). The politics of legal empowerment. London. ODI. See document online
• Grandjean. (2010). No rights without accountability: Promoting access to justice for children. In S. Golub. Legal Empowerment: Practitioners’ Perspectives, 265-283. See document online

• Paralegals are ‘community activists who not only have a substantial training in legal principles, but also familiarity with local community norms and practices and an ability to offer advice and advocacy services that go beyond narrow legal advice’ (CLEP, 2008, p. 92).