Report looks to Africa for cues in tackling access to justice issues

By Terry Davidson

Law360 Canada (April 26, 2023, 11:46 AM EDT) -- A Toronto legal scholar hopes Canadian policy-makers will take note of a report detailing research done in three African countries on the costs and benefits of using paralegals and other community-based resources to increase access to justice.

The report, titled Community-Based Justice Research Project: Exploring Community-Based Services, Costs and Benefits for People-Centred Justice, was spearheaded by the Canadian Forum on Civil Justice (CFCJ), a non-profit organization based at Osgoode Hall Law School.  

Co-authored by Osgoode law professor Trevor Farrow, the paper reviews access to justice studies conducted in South Africa, Kenya and Sierra Leone on how grassroots justice initiatives are closing gaps between citizens and legal assistance.

Generally, the CFCJ report found the three African countries to have made important strides in shrinking this divide via the use of various paralegal services, as well as community legal clinics, social workers and other tools.

Ultimately, it found the benefits of community-based justice to have outweighed the costs of providing it.

Trevor Farrow, Osgoode Hall Law School

Trevor Farrow, Osgoode Hall Law School

“I want a number of people to take notice of this report and the issues it raises,” Farrow told Law360 Canada. “I want governments and policy-makers to notice, to think about the value of providing a wide range of justice services, because, as we know from the research, people will be better off if we get to them early and if we invest in justice, and we actually save money by investing in justice as opposed to not.”

One way community legal services save money, he said, comes at least partly in the form of the reduction of stress for those needing help.

“What we know from this and other studies … is that investing in legal services … is less than the money saved in terms of impact on people’s lives. For example, fewer trips to the doctor [and] fewer draws on the state in terms of court time or [the] time of other government officials having to deal people experiencing legal problems,”

Farrow was asked why these three countries were looked at for the CFCJ report, given their political, social and economic environments are vastly different from that of Canada.

To this, he referred to a lack of access to justice as a shared problem.

“It’s a fine balance because culture matters; history matters; social and political context matter,” he said. “There is no doubt that local context needs to be front and centre when understanding any kind of social, political or legal problems and solutions. Having said that, when you think about some of the shared problems and crises that we’re all dealing with — even if we’re dealing [with them] in different contexts and different ways — we do have shared problems and interests around accessible justice.”

 The report states that the “lack of access to justice around the world is now commonly recognized as a global crisis.”

“As we have discussed elsewhere, even prior to the COVID-19 pandemic and its aggravating impacts on many types of justice problems, it was estimated that approximately two-thirds of the world’s population … lack meaningful access to justice.”

Still, it states, the “access to justice movement is presently experiencing a dramatic global revitalization.”

“The three African-based studies generally focus primarily on paralegal delivery of community-based services. This approach is viewed primarily as an alternative to formal court systems that often lack accessibility, are expensive and are remote from the social institutions of communities that situate problems of justice and fairness in their everyday social and community contexts.”

It notes that the paralegals in all three African research projects dealt with problem resolution, relationship building and mobilizing resources — albeit in different social and economic contexts.

Knowing how these paralegals work in these settings “might influence the public discourse on … access to justice,” and reveal “what community-based justice means, beyond legal action, lawyers and courts,” it states.

In the South Africa research, it was found that paralegal services were legislated and considered “the instrument of choice for expanding access to justice,” and noted a system of Community Advice Offices (CAOs) and “community-based paralegals” (CBPs).

These CBPs often performed tasks beyond legal remedies — resolving problems in ways which re-establish relationships between the disputing parties, for example. Also, they were often familiar with other formal and informal resources in the community, and thus able to bring these into play.

“This aspect of the work of community-based paralegals in South Africa seems to be the fundamental strength of the CBP approach,” states the CFCJ report.

Despite some weaknesses when it came to funding, case management and levels of resourcing, CBPs were found to “resolve problems that produce tangible benefits for people and estimated cost savings for government-funded programs.”

In a news release issued after the publishing of the report, South African researcher Busiwana Winne Martins said that “[b]ecause support workers are close to the community, they understand their problems and socio-economic conditions.”

Those “who work in the grassroots justice structures … are able to translate difficult legal and bureaucratic language into frames that local people can understand and help them to resolve their justice issues,” Martins said.  

In Kenya, land disputes made up the largest of cases at 30 per cent, followed by partner and spousal disputes at 23 per cent and child-related matters at 13 per cent. The remaining types of disputes included trouble with the authorities, police action, physical assaults and theft.

The aim of the Kenyan study was to “understand a range of both formal and informal access to justice initiatives and institutions.”

The research noted the use of community-based institutions — some run by “elders” and religious groups — and state-based initiatives, where courts and tribunals focused on alternative dispute resolution. Civil society organizations, primarily funded by NGOs, were also used for justice solutions.

The research project in Sierra Leone focused on community-based services provided by paralegals from legal aid and NGO justice services.

In the tracking of 260 cases, it was found that there was a high level of unmet legal need. Problems included land disputes, family and spousal neglect and tenancy issues.

A cost-benefit analysis “showed a positive balance of cost and benefit for the use of paralegals calculated in terms of tangible benefits.”

Overall, it was found that more than half of those who used paralegal services “had gained more than they lost,” while others had either “recovered more than they had lost” or at least “recovered what had been lost.”

Savings for Sierra Leone’s government from the use of paralegal services were estimated to be around US$5 million.  

These cost-benefit analyses could “provide encouragement for future cost-benefit inquiries, particularly in ways that — as far as possible — allow for comparisons across jurisdictions,” states the CFCJ report.

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