The obstacles people living in extreme poverty face in accessing justice

THE OBSTACLES PEOPLE LIVING IN EXTREME POVERTY FACE IN ACCESSING JUSTICE

Avocats Sans Frontières is an international nongovernmental organisation. Its mission is to independently contribute to the creation of fair and equitable societies in which the law serves society’s most vulnerable groups. Its aim is to contribute to the establishment of institutions and mechanisms allowing for independent and impartial access to justice, capable of assuring legal security, and able to guarantee the protection and effectiveness of fundamental rights (civil, political, economic, social and cultural). ASF is active in Burundi, Rwanda, Democratic Republic of the Congo, Uganda, Tunisia, Nepal, Israel/Palestine, Kenya, Tanzania, Chad, and Timor Leste, and works in Colombia through our partner ASF-Canada.

Contact Francesca BONIOTTI, Director-General fboniotti@asf.be Shira STANTON, Expert – Social and Economic Rights sstanton@asf.be Jean-Charles PARAS, Expert – Civil and Political Rights jcparas@asf.be Rue de Namur 72 Naamsestraat 1000 Brussels - Belgium Tel. +32 (0)2 223 36 54 info@asf.be WWW.ASF.BE

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Table of Contents I.

Access to justice as a basic human right to guarantee all other human rights ....... 4

II. ASF’s mandate to ensure access to justice for people in vulnerable situations often means people living in extreme poverty .......................................................... 5 III. Both human rights and poverty reduction cannot be realised without access to remedy and justiciability ............................................................................... 7 IV. Case studies on how human rights violations in one area leads to difficulties in accessing justice .......................................................................................... 8 A. Case study one – Batwa in Burundi .............................................................. 8 B. Case study two – Congo Forest Basin residents, Lisala, Equateur Province, Democratic Republic of Congo .................................................................. 11 C. Case study three – Illegal pre-trial detention and indivisibility of human rights 13 V. Conclusion, with recommendations ............................................................... 17 A. The role of law in social, political and economic processes ............................ 17 B. Developing a global strategy for access to justice ........................................ 17 C. Enhancing the social role of lawyers and bar associations ............................. 18 D. States and donors must not sacrifice support for access to justice ................. 18

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I. Access to justice as a basic human right to guarantee all other human rights Access to justice is defined as a basic human right, and refers to the process and mechanisms that allow for a legal-based response based on a problematic situation, both individually and in the collective. Promoting the rule of law, as ASF does in post-conflict and fragile countries, involves strengthening access to justice for everyone, especially those who are disempowered and in vulnerable situations. Such access to justice is referred to in various international covenants as a basic right in and of itself and as a pre-requisite for respect of the principle of a fair trial.1 In the Global North, this access is generally facilitated by a system of legal advice and aid subsidised by the government.2 However, in post-conflict and fragile settings, these systems are rudimentary at best and non-existent in most cases. This void limits the access people living in poverty have to courts and other mechanisms for litigation resolution. Without possibilities to access justice, people’s ability to realise all their human rights is limited. This in turn, limits possibilities for development and the fight against poverty and insecurity.

In partnership with local actors, ASF develops and implements mechanisms that remove obstacles (such as logistical and financial constraints and shortage of lawyers) to effective access to justice for various types of people in vulnerable situations (people living in poverty, victims of sexual violence, minors in conflict with the law, victims of international crimes, victims of torture, etc.). These mechanisms are adapted to the legal, social and political context, to ensure their relevance and effectiveness.

ASF approaches access to justice as the foundation for ensuring that people can realise all their human rights – economic, social, cultural, political and civil. Without rule of law, decisions are decided arbitrarily, generally at the whim, and in favour, of those who hold the most power in society. Rule of law is a precondition for affirming and upholding the principle that all people have equal rights and are equal before the law. Without rule of law, it is impossible to hold duty-bearers to account through the systems that uphold the national laws and the international human rights framework, making the realisation of human rights unattainable.

As well as underpinning all human rights realisation, the interaction rights-holders have with the law has a profound impact on how they are able to live their lives in dignity, enjoying their full range of human rights. For example, illegal pre-trial detention affects not only the right to liberty and security of person, but also the right to work, the right to the highest attainable standard of health, the right to education, and the right to an adequate standard of living (see case study three about pre-trial detention and right to food). If someone is held illegally in prison over the period of months or years before their trial, they are likely to lose their job or miss school, and not have access to adequate health care or food. ASF approaches all of its programmes and activities with the idea that promoting legal mechanisms based on the rule of law and the international human rights framework can enable rights-holders, especially those in vulnerable situations, to have greater control over their lives by strengthening their capacities and power in relation to others in society with more social, customary, financial

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On the basis of, among others, the International Covenant on Civil and Political Rights, the European Convention on Human Rights (article 6), the right of access to a fair trial means concrete and effective access (CEDH, 4/122/1995, Bellet v. France). In the African Human Rights system, see article 7(1)(c) and CADHP, May, 7, 2001, Civil Liberties Organisation, Legal Defence Centre, Legal Defence and Assistance Project v. Nigeria.

2 With current austerity measures in Europe, this is though, not always the case. There have been debates and funding cut issues in the UK and Belgium, for example.

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and/or legal means at their disposal. ASF views access to justice as a basic means to protect the human rights of everyone in society, and focuses its efforts on fighting the human rights violations that tend to be the result of lack of political will, negligence and/or discrimination.

Justiciability of human rights are often highly correlated with the amount of power a person or community holds in society, and ASF attempts to strengthen the rule of law to ensure equality of opportunity.

II. ASF’s mandate to ensure access to justice for people in vulnerable situations often means people living in extreme poverty In post-conflict and fragile contexts, the people who are most marginalised in society or are in vulnerable situations are generally people living in extreme poverty.

When ASF refers to people living in vulnerable situations, we are referring to people who, for a variety of reasons, do not have access to effective justice enabling them to obtain a legal or lawful solution to their problem. ASF’s approach of increasing access to justice mechanisms is generally based on an analysis of the vulnerability context and its causes, and on the identification the rights-holders’ priorities.3 ASF classifies three types of vulnerability that prevent rights-holders from accessing justice: 1. The first relates to the situation of the rights-holder, and is correlated with her level of economic poverty, and her related options to use financial resources to access judicial mechanisms. It is also related to accessibility of information – does she know that her situation is one that violates her human rights and that according to the law, there are mechanisms of redress that are officially open to her use? Using the human rights 4A framework shows how the following issues constrain the rights-holder from seeking justice: Availability

Awareness of laws, administrative and legal procedures

Accessibility

Geographic distance from legal services; lack of financial means

Acceptability

Is the formal legal system relevant to customary/traditional legal systems to which people are accustomed? The parallel systems can be confusing when seeking justice.

Adaptability

Apprehension or resistance to the formal legal system, or the filing of complaints on certain matters (victims of sexual violence may face rejection or condemnation by the communities if they file a complaint).

2. The second type of situation that puts rights-holders in a vulnerable situation, making it difficult for them to access to justice, relates to the actual human rights violation or abuse. If someone has been placed in illegal pre-trial detention, his chances of accessing justice are extremely limited, just as if someone has been the victim of sexual violence, the

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ASF (2011). Study on legal aid in Burundi

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physical, emotional and social consequences make it all the more difficult to access judicial remedies.

Crimes and situations of violations

Examples of violated human rights

Illegal pre-trial detention

Rights to liberty, rights to health, right to education, right to food

Domestic violence

Right to health, right to housing

Discriminatory inheritance practices

Right to food, right to housing, right to education

Sexual violence

Right to health, right to education

3. Finally, the overall legal, political, and socio-economic circumstances can place rights-holders in a vulnerable situation; if political impunity for certain crimes is rampant, the possibilities that someone can bring a complaint related to forced evictions, environmental pollution or harassment or assassination of a human rights defender are very low. Most of the countries in which ASF works are also characterised by a high level of corruption on the part of the political actors, and generally in the judicial system. This means that the rights-holder will remain in his or her situation without access to remedy because the structure itself is adverse to such rights reclamation.

To fully understand the vulnerability rights-holders find themselves in, it is essential to view the interrelation among these three sorts of disempowering situations. When the overall structure perpetuates impunity, the crimes committed are likely to maintain a situation in which the victims of these crimes lack the financial or information resources to access justice.

Similarly environments of impunity perpetuate practices such as pre-trial detention.

The vicious cycle touching the rights-holder, the human rights violation/abuse itself, and the overall political and socio-economic system, frequently means that the rightsholder who finds herself in a vulnerable situation is also a rights-holder living in extreme poverty. For example in Burundi, ASF’s Legal Aid Study shows that the delivery of the “certificat d’indigence” (certificate of indigence) to people living in poverty is supposed to ensure that they have free access to justice (mostly in terms of waived fees, but also in terms of receiving free legal advice from paralegals).

However, in practice, not only there is no clear legal framework for delivery of the certificate, but people living in extreme poverty also face many abuses before obtaining this certificate, often being told that “poverty has a cost”. Living in poverty should give a person automatic access to mechanisms for free legal aid; but going to court can put the person at greater risk of further poverty and a victim of those who abuse the system. Because of these abuses in DRC and Burundi, ASF is reluctant to identify rights-holders in vulnerable situations who need assistance through this system of delivery of a certificate of indigence.

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III. Both human rights and poverty reduction cannot be realised without access to remedy and justiciability ASF intervenes in countries where human rights are not respected, where political violence and armed conflict reign, and where legal rules are flouted. Justice in these countries, too often arbitrary, does not guarantee the security of the population. Conflicts are not satisfactorily resolved before the local courts. People whose rights have been abused tend to resort to vigilante justice, which evolves into the law of the strongest or richest, and contributes to a climate of violence. This violence, both physical and structural, prevents rights-holders in vulnerable situations from being able to claim and realise their rights, as they are unable to benefit from the legal mechanisms meant to uphold and protect these rights. People living in extreme poverty live in a state of disempowerment in which their most basic human rights, such as the right to the highest attainable standard of health, education, food, water and sanitation, housing and an adequate standard of living are nearly impossible to realise.

Without the benefit of these rights, accessing legal mechanisms, and thus justice to vindicate their rights, also becomes nearly impossible.

Many examples demonstrate that justice is closely related to poverty eradication and human development. As UNDP states, “There are strong links between establishing democratic governance, reducing poverty and securing access to justice. Democratic governance is undermined where access to justice for all citizens (irrespective of gender, race, religion, age, class or creed) is absent. Access to justice is also closely linked to poverty reduction since being poor and marginalized means being deprived of choices, opportunities, access to basic resources and a voice in decision-making. Lack of access to justice limits the effectiveness of poverty reduction and democratic governance programmes by limiting participation, transparency and accountability”.4 ASF and RCN5 assessed the main barriers people in southern Sudan in 2007 faced in accessing justice.6 The issue of court fees demonstrates the close links between poverty, access to justice, and the institutional difficulties people living in extreme poverty face just to bring their case to court: “Although court fees are not particularly high, most people cannot afford to go to court. One has to pay for the petition writing, for court fees, and fees are asked after the judgment to obtain an execution order and to enforce it. The ways fees are determined are not clear and judges have discretionary power to fix the fees. Sometimes court clerks do ask for fees for writing documents. Legislation is needed to fix fees or methods of calculation of fees.

There is no possibility of waiving fees for indigent people. The legislator will have to define provisions to ensure financial access to justice for all people including the poor.”

In another example of how poverty blocks access to justice, ASF’s work in southern Sudan also stressed the situation of women living in poverty, whose lack of access to financial resources led them to imprisonment: “Women are deprived of justice in many cases. Most laws, especially customary laws, do not protect them adequately, and when there is provision for

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UNDP (2004). Access to Justice: Practice Note, p.3, own emphasis RCN Justice & Democratie, an international NGO based in Brussels 6 ASF and RCN Justice and Democracy (2007). Equal access to Justice in Southern Sudan, Assessment Report, page 69.

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equal rights, the laws are not always equally enforced. As women have no property, they are commonly imprisoned because they have no means of paying compensation.”

ASF’s twenty years’ experience of working with rights-holders in vulnerable situations around the world has demonstrated that without access to justice, there can be no realisation of economic and social rights. And without realisation of human rights, especially economic and social rights, there will not be access to justice.

IV. Case studies on how human rights violations in one area leads to difficulties in accessing justice A.

Case study one – Batwa in Burundi "The law, in its majestic equality, forbids the rich and the poor alike to sleep under bridges, to beg in the streets, and to steal bread."

- Anatole France

Access to justice in Burundi plays a fundamental role in the post-conflict reconstruction of the country, and the rule of law remains omnipresent in the debates about how to rebuild a country in which the human rights declared are also the rights realised by all members of society. Making up 1% of the population in Burundi (alongside the Bahutu and Batutsi), the Batwa are considered the indigenous residents of Burundi, traditionally hunter-gatherers and forest dwellers, who over time have settled, but remain largely discriminated against by other members of society, and are among the poorest in Burundi.

Land plays a central role in most aspects of Burundian society, as well over 90% of the population makes their living from agriculture, largely subsistence farming. With an exponentially growing population, Burundi is the second most densely populated country in Africa (after Rwanda) and access to land is the seen as one of the main generators of conflict in the country – among neighbours, in families (especially related to women’s inheritance rights), and expropriation for politicaleconomic reasons. Because of the centrality of land in Burundian daily life, many Batwa express their frustrations about their state of extreme poverty as a result of their lack of land. ASF carried out a participatory baseline study in the region of Gitega, to identify the economic and social rights about which members of the Batwa community were most concerned.7 Both the men and women’s groups identified the right to food as the most pressing (most of the community members eat just once a day), and were confident that if they had access to land,

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ASF (2012). Droits économiques et sociaux des Batwa au Burundi.

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this could change. But on further analysis of why they are unable to realise their most basic human rights, the main issue turns out not to be access to land (even accessing land does not help people leave situations of extreme poverty; 60% of children in rural Burundi suffer from chronic malnutrition8), but rather lack of access to alternative forms of livelihood other than agricultural activities (subsistence farming).

The participatory baseline study comprised not only identification of priorities the rightsholders had, but also of discussion of the injustices they face not as inevitable, but as human rights which can claimed. The baseline study has demonstrated that both systemic and social discrimination in all these areas are key obstacles for rights realisation, and reinforces the concern voiced by the Committee on the Rights of the Child: “The Committee remains concerned that Batwa children suffer from discrimination in relation to the enjoyment of their rights, including the rights to health care, food, survival and development. The Committee is particularly concerned at the discrimination faced by the Batwa girls who do not attend school or complete primary or secondary school.”9 By addressing economic and social rights from an angle that does not focus on access to land, but rather on policies related to non-discrimination and State effort in respecting, protecting and fulfilling its human rights obligations could have a positive effect on land-related pressures; instead of allowing the State to argue that there is simply not enough land and too many people, legal action would remind the State that even if resources are scarce, there are still immediate obligations related to non-discrimination and policy formulation. For example, the Committee on the Rights of the Child’s 2010 Concluding Observations state that “The Committee encourages the State party to adopt a comprehensive national Plan of Action on children’s rights, which is operationalised in a Plan of Action and related sectoral plans that addresses fully all of the rights of the child enshrined in the Convention. The Committee also recommends that the State party provide a specific budget allocation and adequate follow-up mechanisms for full implementation of the Plan and ensure that it is equipped with an evaluation and monitoring mechanism to regularly assess progress achieved and identify possible deficiencies.” 10 This demonstrates that there are legal opportunities to hold the State to account for ensuring the necessary policy formulation. In addition, the same Concluding Observations note the gap between anti-discrimination laws and practice: “The Committee notes as positive that article 22 of the Constitution incorporates the principle of nondiscrimination. It remains concerned however that de facto discrimination of children prevails and is tolerated in the State party, in particular vis-à-vis girls with regard to access to education and succession rights …children belonging to the Batwa minority ...”11

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DHS (2010). Enquête Démographic et de Santé Burundi, page 18.

Committee on the Rights of the Child (CRC) 2010. Concluding Observations: Burundi. 55th session 1 September-13 October 2010.

10 Ibid.

11 Ibid.

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However, these legal opportunities have not translated into actual respect, protection and fulfilment of the human rights of members of the Batwa community. Burundi has ratified the various human rights treaties and conventions, and article 52 of the Burundi constitution from 2005 states that: “Toute personne est fondée à obtenir la satisfaction des droits économiques, sociaux et culturels indispensables à la dignité et au libre développement de sa personne, grâce à l’effort national et compte tenu des ressources du pays”.12 Despite this grounded legal framework, the application of the law remains problematic. The members of the Batwa community who took part in the participatory baseline study outlined the various ways that the lack of realisation of their economic and social rights meant that they were unable to access justice, or vice versa.

For example, many participants were kicked off their land either by authorities or by their more socially powerful neighbours of a different ethnic group. When the few attempted to reclaim their land via the justice system, they were stymied by corruption, and deceptive tactics on the part of their legal opponents that contributed to lengthy judicial processes, extending the amount of time they had no access to their land and decreasing the probability that they would regain this access. The heavy discrimination that the members of the Batwa community experience, as they are not accorded the social acceptance that majority of Burundians enjoy, contributes equally to their ability to even earn subsistence level livelihood and access to judicial mechanisms to address these discriminatory practices.

Disempowered to realise the right to food has consequences even more immediate for the Batwa community’s ability to access justice. Participants recounted how eating once a day not only had impact on the realisation of other rights, such as children too weak to go to school, but also that it also sometimes so severe, community members who were hungry stole food in order to eat. This often led to them being killed extra-judicially, with no effort on the part of the State to bring the perpetrator to justice, or led to their imprisonment, a punishment largely disproportionate to their offense.

Accessing justice via State legal mechanisms also seems impossible when the one against whom the complaint is represents the State. The Batwa community members talk about being forced off their land (without compensation) so that the State could build a “peace village”, theoretically meant to house those affected by the previous violent conflicts in Burundi, fomenting positive interaction among inhabitants of different ethnic groups. While the questionable success of these villages is not the subject of this briefing, the fact that the Batwa have been largely excluded from receiving this housing is relevant, as is the fact that when those evicted attempted to bring their complaints to court, this created a backlash when they attempted to seek work at the construction site of the village. The Batwa as a group were refused, being told that they were in conflict with the local authorities. Unable to generate a response on the part of the courts to their complaint about being forcibly evicted, members of the Batwa community were then discriminated against in accessing work, leading to problems in earning money to then buy food or send their kids to school or access healthcare.

During the participatory baseline study, it was clear that in addition to the difficulties the participants had in accessing justice, the fact that they were not aware of their economic and social rights aggravated the situation. By not seeing the lack of realisation of their economic and social as a violation of human rights protected by national and international law, attempting to access remedy via the legal system that was anyway non-responsive at best, hostile at worst, seemed to them absurd. After the activities with ASF, members of the

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“Everyone is entitled to the realisation of economic, social and cultural rights, which are indispensable for their dignity and free development, through national effort and considering the resources of the country,” (own translation).

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community have been working with ASF, receiving legal advice and support in claiming their rights. ASF is also reaching out to the community members, working with them on strategies for claiming the rights they identified as priority during the workshop. ASF has also been training local lawyers and civil society organisations in using the economic and social rights legal framework in their legal work, attempting to raise awareness that these injustices are not inevitable, but rather violations of human rights.

That members of the Batwa community have access to justice to claim their rights is obviously essential for the realisation of their economic and social rights. But beyond that, it is clear that without being able to access legal mechanisms to resolve conflict, the risk of deteriorating back into violent conflict is omnipresent, as one of the Batwa members related a threat from her neighbour who had been attempting to expropriate her land, “If war ever returns to this country, the first victims to be slaughtered will be the Batwa”.

B. Case study two – Congo Forest Basin residents, Lisala, Equateur Province, Democratic Republic of Congo The Congo Forest Basin is the second largest rainforest in the world, and over half of it is found in the Democratic Republic of Congo (DRC). More than forty million Congolese depend on the forest for food, shelter and medicine. Forest dwellers often live in a situation of extreme poverty, made all the worse by external pressures of logging companies and illegal deforestation.13 The national Forest Code (Code forestier – loi 011/2002) from 2002 was meant to create a legal framework to protect and manage the forest and its social and ecological functions, in order to create an administration that contributes to national development and ensure that the forest dwellers can actively participate in the management of the forest for their own benefit. While this proclaimed purpose sounds positive, the legal documents and texts supporting this code became numerous (reaching almost forty) in only six years, with at three ordinances, five decrees and thirty administrative decisions (arrêté). In addition, the land, mining and agricultural codes that were meant to support the Forest Code often had conflicts of interest. Adding to the multiple and confusing means of accessing the legal system, the Forest Code does not include any guidance or national plan of action regarding allocation of space or resources, nor does it require any sort of environmental impact assessment or participatory mechanisms for governing the rules of property rights and land usage.

A moratorium on new foresting titles for logging companies was imposed in 2002, although regularly violated because of lack of financial and human resources dedicated to its enforcement.14 After reviewing these foresting titles, the national government decided to convert 80 foresting titles into perpetual concession by 31 December 2011, against the advice and advocacy efforts of national and international NGOs. In order for logging companies to be granted these concessions, they were by law required to negotiate the “clause sociale” of the “cahiers de charges” (the concession title). This social clause was introduced with the stated aim of ensuring that the foresting communities also benefited from the exploitation of the resources from their homes. Previously, it had been the case that a logging company could

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ASF, et al. (2010). Gestion Alternative des Conflits Forestiers par la Société Civile en RDC : Expériences, Pratiques et Défis.

14 Rigot, Véronique (2011). Forêts congolaises : Quand l’exploitation industrielle entretient des conflits sociaux. CNCD11.11.11 et RRN.

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negotiate the exploitation of a community’s territory for no more than a sack of maize and beer; at best a shoddily built school was “donated”.

ASF decided to intervene not only in order to prevent such unfair negotiation outcomes, but also in order to prevent the grave human rights violations that stemmed from such outcomes. It had happened that when community members went to complain or protest against such unfair conditions, the logging companies, in conjunction with local police and government officials, raped, beat, arbitrarily arrested, and even killed community members, as well as destroyed their property.15 The idea was that if ASF could support the communities in the contract negotiations, not only could such violent outcomes be prevented, but the communities would gain enough economic advantage from the exploitation of their forest, they would also be better placed to realise their economic and social rights.

Specifically, ASF worked with seven communities (each comprising multiple villages, generally remote with few easily passable roads) in the area of Lisala, in the Equateur province of DRC, not only informing them of their rights in the contract negotiations, but also accompanying some of them in through the negotiations, working with the local administration, and helping to formulate the demands that ensure that all community members benefit (often, for example, ensuring that women’s needs are taken into consideration). During this time, the communities expressed their frustration with their inability to meet with either representatives of the logging companies or with the local administrators, who were generally not there to uphold the rule of law, but for their own personal interests.

Members of these communities find themselves in a situation of extreme poverty, and even as they try to access justice in relation to the protection of their homes and surroundings, they are blocked in their attempts. When the logging companies negotiate to have the social payments based on the amount of wood cut, the community members attempt to verify that the amount actually cut the amount reported (the logging companies generally under report).

These efforts are hindered because the community representatives do not actually have the possibility to take time away from their work, they lack materials necessary to travel the large distances (often over 100km without any roads) for this verification, and the lack of places to sleep while undertaking this endeavour. The logging companies refuse to transport the community representatives in their vehicles and often the logging company refuses to tell the representatives where they will be working and when. Similarly, the logging companies gave little notice when they would come to negotiate with the communities, not allowing members from more remote village enough time to join in the negotiations. It ended up happening that most of the communities negotiated with logging companies under pressure, intimidation and constraints, including being exploited by the territory’s administrator. 16 According to Article 8 of the Congolese Civil Code, Book Three, contracts are rendered invalid if not negotiated under free consent of both parties. This would technically mean that the contracts negotiated by these communities are null and void. However, with their limited

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See, for example, the Yalisika case, currently being taken up under ASF’s sexual violence programme in DRC. More information available on request from ASF.

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access to local government administrators who are ready and capable of helping them, and even less access (physical and financial) to courts and lawyers to get these contracts officially recognised as invalid, the communities are disempowered to do anything to protect their environment, and consequently, their ability to realise their rights to food, work, health, housing and adequate standards of living.

These communities do not possess the financial and knowledge resources necessary to approach the contract negotiations on an equal level as the logging companies. The logging companies are able to abuse the system, ensuring that officials either do not interfere with their dealings, or actively help in achieving them. Living in a situation of extreme poverty means that the structure is able to continue oppressing these rights-holders, preventing them from claiming their rights. The problem is of course much larger than the Congo Forest Basin, and starts with the incoherent legal basis guiding the economic activities in the forest. This makes holding duty-bearers on the local level to account all the more difficult. Being empowered to know and claim their rights depends largely on the possibility for a nonthreatening environment in which the duty-bearers take their responsibility seriously. The local government administration should understand that its role is to facilitate and arbitrate the discussions between the communities and the logging companies (the administrateur de territoire), to ensure that the logging companies are not harming the forest by cutting down more trees than is allowed, and by arbitrating demarcation disputes among communities that are often exploited for gain by the logging companies (the coordinateur de l’environnment du district). It also means that local administrative officials and police do not intimidate, harass or harm community members on behalf of the logging companies in order to get them to sign a contract that is not in their best interest, and do not frighten them into not protesting the actions of the logging company. Protecting rights-holders from logging companies and their potentially dangerous pursuit for higher profit necessarily means working to ensure that the rule of law is strong enough so that the State works to protect the rights-bearers and not the companies’ bottom line. Only through strengthening rule of law is sustainable and widespread change human rights realisation possible. Without it, rights-holders living in extreme poverty will continue to have problems accessing justice meant to protect their human rights.

C. Case study three – Illegal pre-trial detention and indivisibility of human rights The most recent ASF intervention strategies in the sector of access to justice originate in the following theory of change, which rests on the hypothesis of a causal relationship between access to justice mechanisms for vulnerable people and a quality legal/judicial response based on the rule of law. Because law itself can be instrumental in oppressing specific groups, acting on access to justice with a human rights-based approach is essential for bringing about a positive social change for people in the most vulnerable situations.

ASF initiatives are based on an integrated approach that involves both tackling the causes of a problem and including all the relevant actors to achieve the largest impact possible. Using a human right-based approach, ASF’s initiatives aim to effectively implement the principle of the indivisibility of human rights. The way ASF deals with massive pre-trial illegal detentions in the African Great Lakes region (Burundi, DRC, Rwanda and Uganda) is an illustration of this human rights-based approach, where the issue is seen as a violation of prisoners’ civil, political, economic and social rights.

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The use of pre-trial detention (PTD) as part of a criminal investigation process is used in most countries around the world. The usefulness of this procedure is not challenged by ASF provided that it remains exceptional and respects the strict conditions laid down by law and upholds human rights norms as required by the rule of law.

However, pre-trial detention is nowhere near exceptional in its use: it is estimated that “On any given day, an estimated three million people are behind bars awaiting trial. In the course of a year, approximately 10 million people will pass through pre-trial detention.”17 This reality is even more dramatic in many countries where the vast majority of detainees are held illegally. This means that upon their arrest, detainees are deprived of their most basic rights, with no access to a lawyer, with no opportunity to be heard by a judge, and facing the possibility of spending months or years in a prison cell, forgotten by the legal system and with no hope to have their case "entitled to trial within a reasonable time.”18 Worldwide, tens of thousands of detainees have no access to justice. This is especially the case in the African Great Lakes region where prisoners face systematic violations of their civil, political, economic and social rights.

ASF has been involved for over ten years in an integrated strategy, partnering with local lawyers and bar associations. The actions taken are both structural (to improve the system) and individual (to assure legal assistance for all cases). The structural approach acts on the system as a whole, focusing on all actors in the criminal justice chain. In Burundi, ASF is a leading member of a justice strategies sector group, established in 2010, working to eradicate illegal pre-trial detention. This group includes representatives from the Ministry of Justice, the judicial authorities, national and international NGOs, and representatives of the international community (donors, UN, ICRC). The working group identifies the causes of the problem and propose possible solutions and actions in the short- and medium-terms. Within the framework of its membership in this group, ASF conducted a statistical evaluation of the prison population and organised training and coaching sessions for judicial officers (judges and prosecutors) and members of the bar association with the support of the expert members of its International Legal Network (ILN). In addition, ASF led the process of drafting the National Strategy for Legal Aid (SNAL) that prioritises the prison population as first recipients of structured legal aid.

This structural approach is parallel to a systematic judicial assistance provided on a pro deo basis to all new prisoners in targeted prisons. The aim of pre-trial legal activities is both to free prisoners who are illegally detained, and to convince the administration and judicial institutions to change their practice in line with the rule of law. ASF’s action is based on its overall themes of promoting the social role of the lawyer (and of the bar association), and of supporting the establishment of a sustainable mechanism of legal aid.

The legal assistance programs conducted by ASF in these four countries are conducted in partnership with national bar associations in each country. Hundreds of lawyers are involved

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Open Society Foundations (2011). The Socioeconomic Impact of Pre-trial Detention Article 9.3, UN 1966 International Covenant on Political and Civil Rights; Article 5.3, European Convention on Human Rights.

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and thousands of prisoners have already benefited. In 2011, ASF advised and provided legal assistance to 2,917 people in illegal pre-trial detention, up from 1,574 in 2010. These legal assistance programmes are complemented by training sessions and coaching by experts in ASF’s ILN, research studies, and tools for lawyers and judges.19 To reinforce this approach, ASF is examining how the principle of the indivisibility of human rights can be put into action through the integration of the issue of the violation of economic and social rights of detainees. Indeed, despite all these actions, the magnitude of people kept in illegal pre-trial detention remains high in each of these countries, making it impossible for them to realise their human rights. While many detainees have been released or rapidly brought before a court, hundreds of other people are arrested and placed in prison illegally, replacing those who have since left. Obtaining long-term results necessitates focusing on the primary cause of the problem: the violation of the law and the non-respect of detainees’ human rights by judicial authorities and States.

For ASF, developing a human rights-based approach implies integrating the principle of indivisibility of human rights at the heart of its intervention strategy. In order to change the situation of illegal detainees, the first intervention is to reinforce their civil and political rights by addressing the actual pre-trial detention. But to accelerate this change and to make it sustainable, it is necessary at the same time to take into account the violation of their economic and social rights that pre-trial detention imposes.

Evoking the severity of the economic and social violations experienced by detainees leads directly to the question of extreme poverty and vulnerability. Few detainees gain access to both their legal rights (including through the access to a lawyer freely chosen and paid by them) and their economic and social rights, including their right to food and the highest attainable standard of health, which are violated as a consequence of the detention, as they have little or no access to adequate food or healthcare. For thousands of other inmates, these rights are completely inaccessible, often leading to situations depriving them of the right to life.20 The severity of the consequences of pre-trial detention affects not only the rights of the accused, but also his21 family and community life, and the impact on the social and economic rights of those beyond the actual detainee is often underestimated.22 The vast majority of

19

ASF (2011). Study on legal aid in Burundi; , ASF and University of Toronto (May 2011). Presumed innocent, behind bars: the problem of pre trial detention in Uganda; ASF (2010). Vade Mecum for lawyers on pre-trial detention, DRC. 20 MONUC Communication (DRC), 21 July 2008 : « Dans cette prison de Mbuji Mayi (Kasaï Oriental) qui abrite 425 prisonniers au lieu de 200 conformément à sa capacité initiale, une nouvelle série de décès dans la nuit du 13 au 14 juillet est venue s'ajouter au bilan. Quatre détenus sont encore morts de faim, et le nombre total de morts depuis un mois dans cet établissement est de 10 ».

21 The vast majority of pre-trial detainees are men.

22 Open Society Foundations (2011), op cit.

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people in pre-trial detention are already extremely economically vulnerable, and their pre-trial detention aggravates their situation of poverty and that of their families. Incarceration for the accused is not only a limitation to personal liberty and a forced removal from his family and community environment, but generally also leads to the loss of his means to earn a living (i.e., he is fired from his job due to his absence). His family also spends more of their resources attempting to free him from detention, as well as time, effort and resources to bring him food and other necessities prisoners to which do not normally have access. Pre-trial detention increases poverty, making access to justice even more difficult for the majority of detainees.

And the situation is of course more dramatic when this detention is illegal.

The individual and collective human rights consequences of pre-trial detention should be taken into account, not only by policy-makers, but also by those in charge of the individual judicial situations (lawyers and judges). This is the first step to finally engage in a process of eradicating all illegal detentions, and less frequent use of prison custody. Realising human rights necessitates making it a priority to better understand the dynamics between detention, lack of access to justice, and situations of extreme poverty.

A second area of intervention involves the question of political and legal responsibility of the State in the treatment of detainees. This objective requires actions adapted to different contexts that go through the authorities' awareness, advocacy and the launch of legal action and public interest litigation before national and regional courts.

Based on the principle of indivisibility of human rights, ASF plans to expand its programme fighting illegal detention in 2013 by focusing on the issue of the right to food for detainees in the DRC. In addressing this issue directly, ASF will focus its interventions combining civil and political rights and the right to food.

The right to food for detainees is embedded in the broader context of prison conditions.

Various international standards, including the UN “Standard Minimum Rules on the Treatment of Prisoners” recommends standard rules by which States are encouraged to harmonise the way their regulations and internal practices are implemented, saying: “Every prisoner shall be provided by the administration at the usual hours with food of nutritional value adequate for health and strength, of wholesome quality and well prepared and served.” 23 Another approach is to emphasise that the conditions of detention may in itself constitute "cruel, inhuman or degrading treatment". For instance, the African Commission on Human and Peoples’ Rights held a violation of Article 5 of the African Charter on Human and Peoples’ rights in the fact that "insufficient food" was given to prisoners.24 The possibility of using the courts is an important step for protecting all human rights. This method is, however still largely underutilised, sometimes because of a lack of information, but often due to a lack of resources. For ASF, which operates in fragile contexts, implementing the principle of justiciability of a right, such as the right to food, requires specific skills from lawyers and free legal assistance for those who cannot afford to pay a lawyer. Without access to justice, full economic and social rights realisation is unattainable. Without such mechanisms, none of the detainees in the DRC, who are denied the right to food, have the means to seek justice for this right.

23 24

Art. 20.1 20. (1) Civil Liberties Organisation v. Nigeria, ACHPR, Communication n°151/96, 1-15 November 1999

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Access to justice is the main issue at the heart of both the human rights-based approach based on the principle of indivisibility of rights, and, consequently, of concrete strategies to fight practices that both generate and perpetuate extreme poverty.

V.

Conclusion, with recommendations

ASF’s major challenge in promoting the rule of law is to ensure that more and more people in vulnerable situations, including extreme poverty, can live under the protection of the law to escape this vulnerability. The law, and the institutions needed to implement it, should not be an additional barrier for individuals and groups who are marginalised, excluded, and living in poverty. On the contrary, the use of law should represent an opportunity to get out of the vulnerable situation. But in many contexts, a variety of factors prevent people in vulnerable situations from realising this right. For millions of people, while access to the law should reduce their vulnerability, their situation of poverty is itself a barrier to access justice.

To contribute to equal access to justice for all, particularly for individuals and groups in vulnerable situations, ASF is implementing various strategies and actions that can serve as recommendations to realise all human rights through the use of the law, especially focused on people living in extreme poverty.

A.

The role of law in social, political and economic processes

Recognition of the importance of access to justice goes hand in hand with the recognition by the States and citizens of the central role of law in the process of social and political transformations. This recognition will allow everyone the opportunity to access justice.

The Arab Spring revolutions and other recent developments show that one of the most significant risks faced by these populations is the use of the law in a manner contrary to human rights. There is also the risk of not serving the cause of people and groups in vulnerable situations in particular because of their poverty. The question of the role law plays is at the heart of the process of change experienced by these countries. However, a main issue in building a democratic state is to restore the population’s confidence in the justice system, essential for creating a system based on the rule of law. People will respect the law (and consequently, institutions and the state) if they know that it also protects those normally marginalised, and it is no longer a factor of oppression and injustice. The major challenge now is to accompany new political processes, is to highlight the central role of law and respect for human rights and implement the principle of indivisibility of human rights.

B.

Developing a global strategy for access to justice

Developing sustainable access to justice requires a strategy adapted to the context that targets priority audiences and maximises domestic resources. ASF’s strategy involves acting simultaneously on three levels:

1. Making the right to access to justice effective for people living in the most

2.

vulnerable situations. ASF sets up activities and processes (mechanisms) to ensure that all rights holders can access justice and obtain legal decisions on their rights; Building the capacity of NGOs, bar associations and State services so that locally operated information, advice and legal aid services can be put in place and operate

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sustainably;

3. Advocating in favour of laws and national policies in order to ensure the right to access to justice and the effectiveness of such access to justice.

C.

Enhancing the social role of lawyers and bar associations

Lawyers and bar associations play an essential role in establishing mechanisms for access to justice because their profession is to guarantee the sustainability of both mechanisms and the quality of legal and judicial services. The commitment of these key actors in favour of people in vulnerable situations is crucial to implement an increasingly complex law and approaches based on human rights.

In the formal justice sector, lawyers play a fundamental role, particularly as a function of their involvement in bar associations; this role was recognised and reaffirmed in the Basic Principles on the Role of Bar Associations adopted by the 8th United Nations Congress on the Prevention of Crimes and the Treatment of Offenders.25 Lawyers should play a fundamental role in organising legal information, advice and assistance for the benefit of those rights-holders otherwise unable to access to the justice system. In accordance with ASF’s general strategy, and until permanent institutional mechanisms for legal aid for the majority of people are put in place, ASF promotes the development of pro deo services, while using the pro bono model as a complementary mechanism. Pro deo and pro bono services must be implemented without compromising the quality of service provided to clients.

D.

States and donors must not sacrifice support for access to justice

The context of multiple crises should not lead to a commitment to reduce engagement (strategic, financial26 and human) in the justice sector, as it will reduce the chances of people in vulnerable situations to realise their fundamental human rights and aggravate the consequences of this crisis in both fragile countries and those with stronger bases in the rule of law. Access to justice should not only be seen as an obligation, in terms of respect for the right to fair trial, but as an opportunity to fight against practices that increase and perpetuate poverty and insecurity.

25

Article 4, Convention held in Havana, Cuba from 27 August to 7 September 1990.

As highlighted in the report of the United Nations Office against Drugs and Crime on the "Access to Justice, Defense and Legal Aid, 2008": "Few legislators, facing an electorate generally in favor of the public order propose, as budgetary priority, to increase funding for legal representation of indigent defendants. " 26

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