Gender, Poverty and Access to Justice

Policy Implementation in Sub-Saharan Africa

David Lawson, Adam Dubin, Lea Mwambene, David Lawson, Adam Dubin, Lea Mwambene

• Publisher: Routledge
• Year: 2020
• Print ISBN: 9780367502799
• eBook ISBN: 9781315407081
• Edition: 1
• Topic: Business
• Subtopic: Business Development
• Index: Business

Access to justice is a fundamental right guaranteed under a wide body of international, regional and domestic law. It is also an essential component of development policies which seek to adequately respond to the multidimensional deprivations faced by the poor in order to improve socio-economic well-being and advance the progress of the Sustainable Development Goals. Women and children make up most of Africa's poorest and most marginalized population, and as such are often prevented from enforcing rights or seeking other recourse.

This book explores and analyzes the issue of gendered access to justice, poverty and disempowerment across Sub-Saharan Africa (SSA), and provides policy discussions on the integration of gender in justice programming. Through individual country case studies, the book focuses on the challenges, obstacles and successes of developing and implementing gender focused access to justice policies and programming in the region.

This multidisciplinary volume will be of interest to policy makers as well as scholars and researchers focusing on poverty and gender policy across law, economics and global development in Sub-Saharan Africa. Additionally, the volume provides policy discussion applicable in other geographical areas where access to justice is elusive for the poor and marginalized.

Part I

Access to justice in Sub-Saharan Africa

Justice policies on reaching the most vulnerable and extreme poor

1 Engendering access to justice for the poorest and most vulnerable in Sub-Saharan Africa

David Lawson, Adam Dubin, Lea Mwambene and Bisrat Woldemichael

Introduction

Nobel Prize-winning economist Amartya Sen argues that for social and economic development to be effective, the poor must be released from their unfreedoms (Sen, 2001). While the reasons behind such unfreedoms vary from country to country, the relinquishing of them depends, at least in part, on the ability of people to exercise their Right to Access to Justice.

Access to justice has become part of the Sustainable Development Goals (SDG 16), in recognition of its importance in social and economic development, as well as the obligation of states to create a gendered justice element in policies, programmes and justice institutions. Noting the transversal importance of justice, the United Nations (UN), in writing about SDG 16, stated that “the first step to fulfilling any aspect of the global sustainable development agenda for 2030 will begin with restoring security and human rights”.¹ Echoing this, James E. Goldston, executive director of the Open Society Initiative, in lobbying for the integration of justice into the post-2015 development agenda, claimed, “In short, we know that justice and governance are no less important to equitable and sustainable development than good schools, functioning health clinics and passable roads.”²

The Right to Access to Justice is commonly referred to as being different from other rights. What distinguishes it is its transversal and interdependent character in relation to other rights, especially socio-economic rights linked to the reduction and alleviation of poverty, gender inequality and other deprivations. Where, for example, the duty-bearing (local) government has failed to meet its obligations, an individual whose main water source is a dirty standpipe requires access to justice in order to enforce their Right to Access Clean Water. In essence, no right contained under international law can be fully separated from the Right to Access to Justice. If fully implemented, this can mean the difference between clean or dirty water, land or no land, liberty or imprisonment.

It is undeniable that access to justice is an enabling right that has the potential to give voice to those who are sometimes voiceless and provides the opportunity of holding accountable the duty-bearing state in protecting, fulfilling and respecting rights that guarantee basic human dignity. It is a right directly linked to broader goals of gender empowerment and poverty reduction and is at the centre of the global community’s commitment to fully achieving the SDGs – reducing deprivation and poverty, and working towards gender parity.

The latter point is, perhaps, of even greater relevance within the Sub-Saharan Africa (SSA) context than other regions. Over the last decade, despite strong economic growth and social advances in several SSA countries, the region continues to be home to the majority of the world’s extreme poor. Figures from 2015 suggest that about half of the SSA population live below the poverty line, with the majority being women. The number of extreme poor in Africa has risen from 278 million (1990) to 413 million (2015), with the World Bank (2019) estimating that by 2030 nine out of ten of the extreme poor will live in SSA. Interconnected and dynamic deprivations, combined with complex and often prejudicial gender mores, mean that extreme and chronic poverty are major challenges to the full realisation of access to justice, which is often costly, discriminatory, geographically distant and complex to achieve.

This collection brings together leading academics and practitioners, all with extensive experience in the aforementioned areas, to explore access to justice in an SSA context through analysing the intersecting dimensionalities of justice, gender and poverty. The book is a complementary extension to a series of outputs and events that aim to share experiences of measuring and outlining economic and social deficiencies, as well as the programme and policies of “What Works for the Poorest” (see Lawson et al., 2010, 2017, 2020). In doing so, it extends the “What Works” series by considering the discrimination, prejudicial gender roles and customs that impact an individual’s rights to access justice. We hope that such a focus will further raise awareness of access to justice’s importance within development.³

This volume also builds on the Nordic Africa Institute (NAI) Policy Note entitled “Ensuring Women’s Access to Justice: Engendering Rights for Poverty Reduction in SSA” (Lawson et al., 2019), which explores the role of effective budgeting with regard to access to justice at the intersection of justice, gender and poverty. In the 13 chapters of this book, we focus on various forms of justice deprivation, exploring the types of policies, programmes and law reforms that can be used to advance greater access to justice. Furthermore, the range of case studies highlight how different countries have responded in different ways, in some cases creatively addressing the challenge of providing justice to women and girls.

Access to justice defined

“Access to justice” is a broad term, frequently used without clear definition, though commonly regarded as a medium through which human rights can be protected, promoted or enforced. It is often understood as ranging from access to formal justice mechanisms (such as courts) to broader secondary categories of justice (such as ombudsman) when demanding access to health care, education and social services. It can also refer to informal justice mechanisms, such as customary courts and laws, which are common to many parts of SSA and are discussed later in this book. The informal justice system is often the most common route of justice-seeking, as it is affordable and – given that the majority of SSA’s population continue to live in rural geographies – more accessible to the poor, marginalised and geographically distant. Ibrahim, for example, (Chapter 7 of this volume) highlights that the vast majority of Sierra Leoneans (over 80%) will seek redress through informal systems. Elsewhere, in Burundi, it is estimated that up to 80% of people take their cases to the Bashingantahe institution in the first or sometimes only instance, while in Malawi between 80% and 90% of disputes are processed through customary justice forums (United Nations Development Programme [UNDP], 2006:21).⁴

While access to justice is a broad and amorphous concept, with no single definition fully capturing all conceptualisations of the term, the World Bank’s (2007) definition presents a comprehensive starting point for understanding its baseline objectives and significance. This definition presents access to justice as meaning people – particularly the poorest and most disadvantaged – being able to access fair, effective and accountable mechanisms for the protection of rights, control of abuse of power and the resolution of conflicts. The UN defines access to justice in similar terms, highlighting the role of both informal and formal institutions. According to UNDP (2005:5), access to justice is “the ability of people to seek and obtain a remedy through formal and informal instructions of justice”.

While there is no accurate estimate of how many people lack justice of some form, it is reasonable to assume that most poor people – either knowingly or unknowingly, and especially in developing countries – are or will be deprived of access to justice in some form or another. Furthermore, though access to justice and legal empowerment deprivations affect the poor generally, they are particularly impactful on women. A UNDP (2008:78) report on legal empowerment and property noted that, “Much of the misery in the developing world is due to statutory and customary property systems which disenfranchise women. From national to village levels, justice for women needs reform.” In SSA, women in particular confront a host of obstacles and challenges that men are less likely to face. These include sexual violence, biased and antiquated inheritance and land laws, cultural mores, as well as other discriminatory practices that perpetuate cycles of poverty and marg...

Table of contents

• Cover
• Half Title
• Series Page
• Title Page
• Copyright Page
• Table of Contents
• List of illustrations
• List of contributors
• Foreword
• Preface
• Acknowledgments
• Part I Access to justice in Sub-Saharan Africa: justice policies on reaching the most vulnerable and extreme poor
• Part II Women – violence and vulnerability
• Part III Advocacy and vulnerability for Sub-Saharan Africa’s poorest
• Index