Informal Justice Systems: Charting a Course for Human Rights-Based Engagement

This study seeks to identify how engagement with informal justice systems (IJS) can build greater respect and protection for human rights. It highlights the considerations that development partners should have when assessing whether to implement programmes involving IJS, the primary consideration being that engagement with IJS neither directly nor inadvertently reinforces existing societal or structural discrimination - a consideration that applies to working with formal justice systems as well. According to the report, if done in ways to respect and uphold human rights, IJS can be a mechanism to enhance the fulfilment of human rights obligations by delivering accessible justice to individuals and communities where the formal justice system does not have the capacity or geographical reach.

Commissioned by the United Nations Development Programme (UNDP), the United Nations Children's Fund (UNICEF), and UN Women, the study involved a comprehensive literature review and country-specific case studies. Qualitative and quantitative data collection was carried out in Bangladesh, Ecuador, Malawi, Niger, Papua New Guinea, and Uganda. Desk studies of 12 countries were also conducted on the basis of literature from academia, UN agencies, non-governmental organisations, governments, websites, and conferences. According to the report, until recently, engagement with IJS was not a part of development interventions in justice systems. Consequently, there is relatively little documentation on the outcomes and impact of programmatic interventions, although there is now more consideration of IJS in sector-wide approaches to justice programming.

The study found that despite some overall similarities, a chief characteristic of IJS is their degree of adaptation to their socio-economic, political, and cultural contexts. Programming for IJS needs to take its outset in the context in which they operate, including how they interact with formal systems. In addition, recognition of value of IJS to a society or a community and of their flexibility to individual circumstances can help avoid programming that would distort the positive elements of the IJS.

Many of the lessons learned about justice-sector programming can and should also be applied to IJS, including the need to holistically combine various forms of interventions and to coordinate the work of different actors and approaches. In a similar way to planning for sector interventions generally, a thorough baseline analysis is a necessary starting point if wishing to work with IJS. While planning for support of justice sector institutions requires information on caseloads, resources, and linkages, as well as needs, programming for informal justice demands greater understanding of people's legal preferences, needs, and choices, as well as the cultural, social, and economic realities that condition these needs.

The report points out that, although IJS do not fully respect and protect women's rights in many contexts, the study finds that women creatively seek a just resolution and the protection of their rights. While women may fare better in formal or parajudicial systems, they often face social pressure and logistical and economic difficulties preventing them from accessing the formal justice system. Engagement with IJS should be tied to raising awareness within IJS of women's rights and of the range of choices and access available to women to seek justice, remedy, and protection.

Among others, the study identified the following specific interventions:

• State Law Reform Processes to Enhance Compliance with International Human Rights Guarantees - There are synergies between IJS' programming interventions and broader human rights engagement, such as encouraging the ratification, domestication, and implementation of international human rights instruments, as well as the implementation of recommendations of international treaty bodies. Programmatic interventions to enhance compliance with international human rights guarantees may seek to bring IJS more clearly within legislative and constitutional standards. Activist organisations use strategic litigation to bring about change in legal standards. Where the legal environment is favourable, strategic litigation can help to change the law, raise awareness, and build coalitions.
• Education of Adjudicators - Education interventions can be designed for training current, practicing adjudicators. The content of training can encompass a range of subjects, from guidance on the law in relevant domains, to techniques of documentation, dispute resolution, and legal procedure, as well as professional ethics, human rights, and judicial organisation. Training could be specific to build the awareness and capacity of adjudicators in relation to children's and women's rights. Training could also be provided to other participants in the proceedings, such as those who represent and assist children, fulfilling the right to be heard.
• Education of Users - Legal Awareness-Raising - Strengthening legal awareness extends knowledge of rights, provides an important foundation for the community to demand the protection of those rights, and offers remedies where those rights have been violated. A lack of awareness and understanding of their rights often disproportionately affects the most disadvantaged groups in society, including women, the economically poor, and geographically isolated communities. Community empowerment through the heightening of legal awareness is vital to encouraging IJS to be responsive to the community and mitigates the risk that the IJS could be captured by an elite. In some contexts, the use of media, radio, and television campaigns are effective. Other means of educating people include street theatre, information kits, or flyers on how to initiate legal action or bring a dispute to IJS. Legal information kiosks or mobile legal clinics can also travel particularly to remote areas to conduct community education initiatives on legal rights. Trusted and familiar social networks, such as teachers, religious leaders, community groups, or others with non-legal specialty skills, can substantially contribute to public awareness of the law and legal rights.
• Procedural Regulation and Self-Regulation - Emphasising international human rights standards in IJS' procedures offers avenues for interventions. This is particularly important for meeting the obligation under the Convention on the Rights of the Child to respect the views and interests of children. IJS address many issues directly relevant to children, such as ones involving land, custody, and guardianship, so hearing and respecting the views of children is a critical procedural and substantive consideration. Programming can influence IJS' procedures to better incorporate international guidelines on child victims and witnesses, and can be used in all situations where the interests of the child are affected. Improving, updating, and distributing practice manuals and guidelines are worthwhile programming activities and provide greater procedural transparency, consistency, and fairness in IJS. Such guides can be extremely useful, but literacy levels and language proficiency must be taken into account.
• Accountability Mechanisms: Transparency, Monitoring and Oversight - Requiring or promoting the recording of case outcomes is one measure that can promote transparency, enhance oversight, strengthen enforcement mechanisms, and, in some circumstances, promote legal certainty. Requirements of public hearings and open admission to the court or adjudication forum, including for the general public and observers from civil society organisations and the media, provide clear transparency measures. Where recording of decisions is not possible (perhaps due to literacy levels) or not accepted in IJS, public hearings can provide an accountability and transparency mechanism between IJS and the community. Community groups, such as grassroots women's groups, can develop their own records of the proceedings and monitor the pattern of the decisions as well as procedures followed in IJS.