section b
Legal aid interventions implemented by CSOs have generally been designed as pilots. This has implications for sustainability given yearly funding, and inadequate, short-term attention to identifying and documenting lessons for scaling up and replication. This weakness has been identified in nearly all case studies reviewed. Often, insufficient research and analysis has been carried out - especially on the root causes of disputes and violations. For instance, the Justice Centres Uganda, while working in the northern and north-eastern part of the country, dealt with both land and family disputes through mediation of one on one cases without establishing why an escalation of land and family disputes had occurred in these areas. The same applies to the Paralegal Advisory Services in Malawi and Uganda where the focus has been on removing prisoners from the prison system without necessarily stemming the inflow.56 This approach results in the focus on outputs and numbers of individuals cases handled without strengthening the justice system to effect wide-scale and sustainable change. Legal aid initiatives by CSOs have traditionally operated as parallel processes to the formal justice system and alternative justice mechanisms. For instance, Justice Centres record high numbers of registered cases but low rates of resolution as a result of the obstacles within the formal justice system that result in lengthy delays in case administration and case backlogs. There is increasing recognition of the need to support these systems if reforms are to be effective. Successful litigation efforts are dependent on reforms in the formal justice system. Likewise, KELIN in Kenya has moved away from an individual approach and has consistently partnered with the Traditional Authorities to address the rising disregard of widows’ property rights and of orphans affected by HIV/AIDS. In Burundi, ACCORD ensures that mediated land disputes result in a Memorandum of Understanding that is recorded and registered with the National Land Commission. Alternative dispute resolution mechanisms have been successfully utilized to avoid litigation and to expand the options for vulnerable individuals to access justice while maintaining harmony with their communities. For instance, widows and orphans are at times reluctant to take cases to the formal systems for fear of being perceived as airing family matters to outsiders - which might lead to their being shunned in the future.57 However, the absence of standards, guidelines and an oversight mechanism for mediation can result in poorly mediated processes that are instead injurious to the poor and vulnerable groups especially where cases are “settled but not resolved” and may encourage forum shopping and allowing disputes to fester.
A paralegal attending a Police interview of a child offender at police station ©PASI, Malawi
56 This has been the case in Uganda where despite efforts of the Paralegal Advisory Services to enhance access to justice for petty offenders (by 2011, at least 5,000 accused persons had accessed PAS services), a growing crime rate and increasing prison population (now standing at over 22,000) has meant that prisons remain largely overcrowded. See annexed case study on PAS. 57 Interview with FIDA Uganda Programme Director on lessons from engaging the Ker Kwaro in the Acholi region. Also, the Land and Equity Movement in Uganda (LEMU) has documented mediation in land cases in northern Uganda in which this issue is raised. See LEMU 2011; Examining the A-D-R-tistry of a Land Dispute Mediator in Northern Uganda, presentation to the Northern Uganda Land Partners Forum 18–19 July 2011.
36 Rule of Law and Access to Justice in Eastern and Southern Africa: Showcasing Innovations and Good Practices