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Dollars and ‘Sense’: Accessibility and Affordability in Community-Based Justice

The annual World Justice Project (WJP) Rule of Law Index provides independent global insights on factors considered fundamental to the concept of the rule of law. It includes eight factors, which are each assessed based on four or more sub-factors. Factor 7, Civil Justice includes 7 sub-factors of which accessibility and affordability tops the list as sub-factor 7.1. In evaluating accessibility and affordability, the WJP measures people’s ability to afford legal advice and representation, access courts, and whether pathways to civil legal resolution are impeded by excessive fees, unreasonable delays, physical obstacles, language barriers or procedural hurdles.[1] The accessibility and affordability component also measures people’s knowledge of available remedies.[2] The discussion of accessibility and affordability in community-based justice that follows considers these indicators and whether greater investment in community-based justice services could lead to better performance on measures of access and affordability in civil justice.

Accessibility and affordability are critical components of people-centred civil justice. Canada has consistently received low scores on the accessibility and affordability component of the civil justice factor in the WJP Rule of Law Index. Out of a maximum possible score of 1, Canada received scores of 0.57, 0.58, and 0.58 for accessibility and affordability in 2022, 2021 and 2020 respectively. Canada’s scores on the accessibility and affordability component of the civil justice factor and the pattern of Canada’s scores in recent editions of the Rule of Law Index are similar to those of the three partner countries represented in the Community-Based Justice Research (CBJR) project; Canada, through the Canadian Forum on Civil Justice (CFCJ), is the fourth country represented in the CBJR project. On accessibility and affordability of the civil justice system, South Africa received scores of 0.51, 0.52 and 0.51; Kenya received scores of 0.45, 0.47 and 0.44 in 2022, 2021 and 2020 respectively; and, Sierra Leone received scores of 0.49, 0.47 and 0.51 in the 2022, 2021 and 2020 editions of the WJP Rule of Law Index. Across these (and other) countries and jurisdictions, ensuring a level playing field for all people experiencing and working to resolve serious civil justice problems is an ongoing challenge. Further, research from the CFCJ and others shows that the consequences of gaps and barriers in access to civil justice are often borne out with profound effects for people’s physical and mental health, family relationships, finances, safety, ability to remain housed and in other serious ways.[3]

It is in view of the shared landscape of accessibility and affordability challenges in civil justice and the potential to expand access to civil justice in cost-effective and sustainable ways through community-oriented justice services that the International Development Research Centre (IDRC) convened the CBJR project in 2018. As part of this ongoing multi-country research initiative, researchers at the CFCJ worked in partnership with researchers at the Centre for Community Justice and Development (CCJD) in South Africa, the Katiba Institute in Kenya, and the Centre for Alternative Policy Research & Innovation (CAPRI) in Sierra Leone.

Across the four countries represented in the CBJR project, “community-based justice service” was generally understood to mean a locally accessible service facilitating legal problem resolution within a given catchment area, with the focus of the project on experiences with select civil justice problems. In unpacking the term “community justice,” however, researchers at CAPRI offered additional insights based on responses from study participants. Rather than a service delineated by physical location, “community” was understood to include anyone accessing a given local justice service “irrespective of whether the service was in their community or not”.[4] Similarly, “justice” was understood both as a process and the resulting “social cohesion” or outcome of resolved disputes.[5] This broader application of “community justice” is arguably one of the ways in which community-based justice services in some jurisdictions might facilitate more expansive and accessible civil justice for diverse groups and, further, why investment in these services should feature in policy discussions on improving access to civil justice. To the extent that physical access to justice services is a defining element of overall access to civil justice (as outlined in the Rule of Law Index), the framing of “community justice” by service users in a way that minimizes the existence of physical barriers is significant, and certainly merits further consideration.

Taking other components of the Rule of Law Index civil justice factor in turn, community-based justice services examined as part of the CBJR project show promise for their potential to contribute to more accessible and affordable civil justice in several ways. Across the studies in Kenya, South Africa and Sierra Leone, the costs incurred to access community-based justice services are relatively low and, in many cases, include only fees related to transportation, phone services, photocopying and printing, and other ancillary expenses. Respondents to the CFCJ’s 2016 Everyday Legal Problems Survey identified similar expenses as part of the process to resolve civil legal problems.[6] Notably, however, access to legal advice, legal information and parallel services are provided for free through the community-based services canvassed for the CBJR Project—and many community-based justice services around the world—though a means test might be used in some cases to determine eligibility to access services based on income.[7] The cost of legal fees, and other legal costs, has been cited in legal needs studies in Canada and elsewhere as a significant barrier to engaging legal advice and legal representation for serious civil legal problems.[8] The absence of these costs from locally accessible justice services is key to the accessibility and affordability of these services, particularly for people who may not otherwise be able to access legal help. It should be noted as well that while some community-based justice services are supported by legal aid funding, for paralegal NGOs and other models, funding can be unstable and inadequate. In this respect, the price that some community-based services pay to make justice locally accessible includes operating at a financial loss, burnout and emotional stress among staff, and uncertainty about the ability to continue serving the community in the long-term.[9] These problems too could potentially be addressed with government and other investments of sustaining funding.

Resolving legal problems through community-based justice services was also often found to take less time than dispute resolution through other forums. In the study in Sierra Leone, for example, problems were typically resolved in 2-3 weeks (less time than through other services). Notably, at the same time that many community justice services avoided delays and lengthy dispute resolution, satisfaction among service users across studies was also largely positive. Users also offered reasons for choosing to resolve their legal problem(s) through a community justice service rather than other, more formal pathways. Being treated with respect, fairness, gender parity, location/proximity of services, low cost, and reputation of the service were recurring themes. Recognizing that, satisfaction with a given legal service, process or outcome is highly subjective and can be difficult to measure, where the question was broached, satisfaction levels tended to be on the higher end. Interestingly, as a proxy for satisfaction with legal services which were provided for free through community-based services in the study in South Africa, service users were asked about their willingness to pay for help they received if they had the means. Respondents indicated a range from approximately US $84 to US $446, much more than average spending on transportation, printing and telephone expenses.

Service providers working in community-based justice organizations are often themselves members of the communities being served. In helping people navigate legal situations, service providers across studies were able to communicate in the same language as justice seekers and work in a manner that respected the social and cultural norms of the area and the population. In this way too, what community-based justice services offer and how they work aligns with defining elements of people-centred justice, and the accessibility components of the Rule of Law Index’s civil justice factor.

The positive findings across studies in the CBJR project beg several questions. To the extent that community-based justice services check many of the boxes for accessible and affordable civil justice (in the context of the Rule of Law Index), would providing these services at scale improve access to civil justice on the ground, and move countries towards better overall civil justice performance? For countries like Canada with consistently low Index scores on accessibility and affordability of the civil justice system, are funding and other investments in civil justice being allocated in the most effective ways? Should community-based justice services receive more support? What can we learn from community-based justice services that might contribute to improvements in other areas of civil justice or the justice system more broadly?

Across research carried out on community justice mechanisms, a culturally sensitive, responsive, timely and generally agreeable level of service provided by community justice services commonly translates to high levels of satisfaction with the dispute resolution process and outcomes.[10] These local justice mechanisms provide a necessary service for the communities they serve, and they often do so at little or no cost to users. It is worth considering how to better support community justice mechanisms and how their services might be scaled for broader impacts.

The collection of studies from the CBJR project provides a rich body of insights into the costs and benefits of community-based justice mechanisms, far more extensive than could be discussed in this article. Links to the final in-country reports from the CBJR project report are included below. The final pan-project report is forthcoming.

 

By Lisa Moore
Director, Canadian Forum on Civil Justice

_____________________

[1] World Justice Project, Rule of Law Index 2022 (Washington DC: World Justice Project, October 2022) at 18.

[2] Ibid.

[3] See generally, Trevor CW Farrow, Ab Currie, Nicole Aylwin, Les Jacobs, David Northrup and Lisa Moore, Everyday Legal Problems and the Cost of Justice in Canada: Overview Report (Toronto: CFCJ, 2016) at 16-21.

[4] Felix Marco Conteh, Yakama Manty Jones; Sonkita Conteh, Henry Mbawa and Ibrahim, Aisha Fofana, Costs and Benefits of Community-Based Justice in Sierra Leone (Sierra Leone, CAPRI, 2022) at 3, online: IDRC <https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/61131/Costs%20and%20Benefits%200f%20Community-based%20Justice_SierraLeone.pdf>.

[5] Ibid.

[6] Supra note 3 at 15.

[7] Different types of community justice services were examined for the CBJR project, including several that are supported by legal aid funding and require a means test to determine eligibility to access services. There are other community-based justice services that lack official recognition by the state and are not supported by legal aid funding or they receive private funding or are funded in other ways.

[8] Supra note 3 at 10.

[9] See for example, Sophia Mukorera and Winnie Martins, Cost-Benefit Analysis of the Services Offered by CAOS (Pietermaritzburg, South Africa: CCJD, 2022) at 9-33, online: IDRC <https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/61139/IDL-61139.pdf>.

[10] See for example Felix Marco Conteh, et al, The Costs and Benefits of Community-based Justice in Sierra Leone (Sierra Leone: CAPRI, January 2022) at 19-29, online: IDRC <https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/61131/Costs%20and%20Benefits%200f%20Community-based%20Justice_SierraLeone.pdf?sequence=1&isAllowed=y>; Katiba Institute and University of Nairobi, Alternative Approaches to Access to Justice in Kenya: A Cost-Benefit Analysis (Kenya: Katiba Institute, 15 November, 2021) at 37, online: IDRC <https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/61056/IDL-61056.pdf?sequence=5&isAllowed=y>; Sophia Mukorera and Winnie Martins, Brief 5: Cost-Benefit Analysis of the Services Offered by CAOS (South Africa: CCJD, 2022) at 12-13, online: IDRC <https://idl-bnc-idrc.dspacedirect.org/bitstream/handle/10625/61139/IDL-61139.pdf?sequence=2&isAllowed=y>; Ab Currie, The Community Being Helped is the Resource that is Needed to Extend Access to Justice to the Community (Toronto: CFCJ, August 2020) at 13, online: CFCJ <https://cfcj-fcjc.org/wp-content/uploads/The-Community-Being-Helped-Is-the-Resource-That-is-Needed-Ab-Currie.pdf>.

Comments

  1. This is really intriguing. Are legal clinics (which offer state-funded advice and representation) examples of community-based justice services ?

    Or are community-based justice services more similar to courts that do neutral dispute-resolution through mediation and adjudication?

  2. Hi Noel,

    Great question. The studies in Kenya, Sierra Leone and South Africa each looked at different community-based justice models. The study in Sierra Leone examined the state-backed Legal Aid Board and paralegal NGOs backed by philanthropic funding. The study in South Africa looked at community advice offices (CAOs), which are operated and managed by community-based paralegals. There are over 3,000 CAOs and they use various structural and financial models: stand-alone community-based organizations; some are affiliated with university law clinics; some with intermediaries; and some work with ‘umbrella’ non-governmental organisations. CAOs are not formally recognized or regulated and instead rely on self-regulation and donor support. The study in Kenya took a more broad-based approached and looked at costs and benefits across several models accessible to justice seekers: court based initiatives (Court Annexed Mediation); state-based initiatives; community based initiatives (traditional); civil society based initiatives and religious and community based initiatives.

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