“There is an inseparable link between the protection of individual and collective human rights and democracy. The field of battle in which democracy and human rights are tested is the administration of criminal justice, which encompasses all processes and practices by which a state affects, curtails, or removes basic rights.” - Cherif Bassiouni
The focus of donor agencies or development partners today is on the Millenium Development Goals – goals which make no mention of the fundamental right to justice. A right which perhaps more than any other is repeated again and again in the Universal Declaration of Human Rights (UDHR) and canvassed in close legal language and at extraordinarily length in the International Covenant on Civil and Political Rights, which most countries in Africa have ratified.
A right which surprised all development experts with the emphasis placed on it in the ‘Voices of the Poor’ series published by the World Bank in 2000 and which led to a number of western donor agencies moving ‘Justice’ up the development agenda and
leaving the World Bank wondering if their policy of developing the commercial courts and computerizing the courts was really hitting the spot.
As millions pour into grants and assorted loans to satisfy the demands of the legal establishment to ‘modernise’ the police continue to extort confessions, the backlog of cases in the courts grows apace, the prison numbers continue to expand and the ordinary person feels more and more powerless and resorts to taking justice into his/her own hands.
In 1998, Justice Joao Carlos Trindade, a judge of the Supreme Court of Mozambique, estimated that ‘justice’ was only accessible to 10% of the country’s population. He embarked on a two year research programme up and down the country, sitting in villages and towns, to enquire into the state of the administration of justice in the country. The South African Law Commission has also undertaken a similar study.
Both sought local solutions to local problems and their research posed searching questions about the relevance of the European justice models they inherited many years ago, a model that is expensive to maintain and applies proceedings that are both complex and unfathomable to the ordinary person for the simple reason that they are usually conducted in an alien language.
In the Congo, there was no judge or august institution to take the lead. The initiative arose from NGOs and faith-based organizations to develop mediation mechanisms for resolving disputes in the absence of any formal justice structure to adjudicate on a matter. The offices of the Catholic Commission on Justice and Peace in Bukavu and an NGO, Heritiers de la Justice, both have filing cabinets full of single page documents detailing the nature of the disputes they have resolved and the agreements reached in each, signed by the disputants to resolve it and move on with their lives.
In Jigawa State, Nigeria, initial scepticism of the Shar’ia court as an institution turned to admiration on observing the simple and fair manner in which the Sheikh dealt with a divorce matter. At the end of the 15 minute hearing, the man and woman were divorced and, heartily relieved, could return to their village, their honour intact and able to find new partners and start again.
Romanticised twiddle twaddle? Perhaps, but the point to be made here is that ‘justice’ as a development goal is not easy to quantify. As someone once said when asked how to define a ‘minority’: ‘you know one when you see one’. Justice is intuitive. You know it – you may not be able to articulate it or pass it down to cause and effect and specific intent, or even ‘outputs’ (numbers of judges trained, police equipped etc). It is multi-layered and encompasses the whole range of the human condition. Is the poor man who steals so that his family can eat more or less culpable than the corrupt functionary? The issues are complex.
The starting point for Justice Trindade, the South Africa Law Commission, the Congolese NGOs and faith-based groups and Nigerian Sheikh was: are we meeting the needs of the people we serve? Less the well off and the special interest groups who can afford the costs of the formal system – but ordinary men and women and their children in the villages?
This was also the starting point of an extraordinary meeting that took place in Lilongwe, Malawi last November to look at legal aid in the criminal justice process. The group of 120 or so people who came together could all be characterized as practitioners, whether they thought and wrote on the subject, investigated, mediated, represented, prosecuted or adjudicated - they all had long experience of the criminal justice system in their 21 respective countries from the continent.
They produced a declaration at the end that answered the keynote speaker’s challenge to concretise, give substance, shape and direction, prioritise and strategize. Above all the focus was on execution, implementation and innovation. There was practical, testing anew of what was accepted, settled and comfortable, and a questioning of whether sacred cows are sustainable. The conference explored new ways of making legal aid truly effective and expanding its nature and scope.
The main thrust of the declaration was that the definition of legal aid must be broadened to include legal advice and assistance as well as education; that this form of legal aid should be available at every stage of the criminal justice process: in the police station at interview, the court at first appearance and on first production in prison; and that it should be open to a range of other actors to provide, ie not only the lawyers, but also law students, NGOs, CBOs and faith based groups.
This may not sound revolutionary. But it will mean a great deal to the two million South Africans who will pass through a police station each year without the most basic legal advice or assistance. You might also consider whether this is happening on a routine basis in your country and cast a closer look at what is starting to happen in Malawi.
In 2000, four NGOs started the Paralegal Advisory Service in a remarkable partnership initially with prisons extending to the courts and police in 2003. Today, 37 paralegals offer appropriate legal advice and assistance on the front-line of the criminal justice system, ie in police stations, courts and prisons.
Over five years, they have grown and developed and have helped over 30,000 prisoners to represent themselves in bail applications, pleas in mitigation and conducting their own defence. They have facilitated the release of more than 2,000 prisoners who were unlawfully or unnecessarily detained. They have helped reduce the pre-trial prison population from an average of 50% to a stable mean of 22% today.
Who are they? They are ordinary people who have completed secondary education with ages varying from 20-40. Just under half of them are women. They complete a series of practically oriented training courses over 12 months and it costs around $400 per month or under GBP250 to field each paralegal.
Lawyers do not see them as a threat simply because they do not seek to compete with them but to complement their work. In Malawi with only 300 lawyers for 11 million people, there just are not enough lawyers to go round.
They aim at a working ratio of one paralegal to 100 prisoners each day. The information they provide is accurate and the service they offer is both free and appropriate to the legal needs of the person at the beginning of the criminal justice process, ie interview by police, bail, case follow up of overstayers, first appearance at court etc. They do not encroach on the specialist’s patch by holding themselves out to advise in individual cases or represent people in court. The criminal justice agencies have grown to admire their discretion and professionalism (they work to a strict code of conduct in prisons and police stations) and they have carved out a respected and valued niche for themselves – surely the fundamental test of ‘sustainability’.
Currently, outside Malawi, the programme is operating in Benin (as the Projet d’Assistance Judiciaire aux Detenus – PAJUDE) and in Kenya (the Kenya Prisons Paralegal Project – KPPP). Interest has been expressed in starting a similar scheme in Niger, Tanzania, Uganda, Ghana, Nepal, Bangladesh and Cook County, Illinois, USA. Like the community service scheme that originated in Zimbabwe in 1994 and is now operating in 13 countries up and down Africa and attracting interest from countries outside the continent, the Paralegal Advisory Service, made in Malawi, offers a flexible model that can be adapted to any other country with similar problems.
Between 18-25 April this year, the XIth UN Congress on Crime Prevention and Criminal Justice will take place in Bangkok, Thailand. This five-yearly gathering of government ministers, senior criminal justice actors and NGOs provides an important forum for keeping policy makers’ eye on the ball and not allowing them to be distracted by the ‘war’ on narcotics and terrorism. It can serve to sidestep political agendas of the day and focus on the state of our criminal justice around the world, the quality of that justice and peoples’ access to it. It is a reasonable hope that the government of Malawi will table the Lilongwe Declaration for adoption by Congress and so raise the voice of the millions of poor people passing through our police stations and prisons each year without advice or assistance.
A former Chief Justice of Nigeria wrote: “The rule of law is not a western idea, nor is it linked up with any economic or social system…As soon as you accept that man is governed by law and not by whims of men, it is the rule of law.” (Adetokunbo A Ademola). And without the rule of law, the MDGs may be attained but they cannot be sustained.
Further information is available from Clifford Msiska, National Co-ordinator, Paralegal Advisory Service, Malawi [email][email protected]; a film (13 minutes, Path to Justice, 2004, directed by Pierre Kogan is available from PRI (Lilongwe) [email][email protected]; materials on starting up the PAS are also available. The Lilongwe Declaration and conference papers are available from www.penalreform.org The report will be published in English and French in June 2005.
* Adam Stapleton is a former criminal lawyer and adviser to Penal Reform International.
* Please send comments to [email protected]