Research in the arid lands of Kenya, for example, finds that the state justice system typically plays a marginal role even in enforcing rights around some of the most serious issues faced by the Samburu and Turkana—including disputes over natural resources, cattle rustling, sexual offenses, and murder. Instead, local processes are often viewed as more equitable, accessible and affordable, with community members frequently withdrawing cases from local courts, preferring instead to use mechanisms based on local norms. Development actors in such contexts are increasingly questioning the efficacy of state-focused, top-down justice reform, and the lasting impact that the dominant approaches of the last several decades have had on enhancing the justice systems used by most poor people most of the time.
Encouragingly, there is increasing recognition that while multiple rules systems and legal orders (a situation known as ‘legal pluralism’) regulate conduct within all societies, a defining characteristic of effective ‘development’ is the steady emergence of greater coherence between these constituent elements, and the emergence of legitimate overarching mechanisms for reconciling lingering differences. In contexts lacking such coherence, some development agencies are beginning to engage with the range of formal, informal and hybrid institutions present at the local level. Donors cite a need to move away from foreign ‘best practice’ models and instead promote context-specific ‘best fit’ solutions that draw on local experiences and promote accessible and socially relevant dispute resolution processes. To their credit, groups within a range of development organizations have been recommending this type of approach for some time; yet despite these welcome efforts, there has been remarkably little systemic progress in engaging with local justice systems.
Why has there been little progress in operationalizing a different approach to justice reform?
There are certainly powerful institutional imperatives reinforcing the status quo. Development assistance, across a variety of sectors, targets formal institutions that are familiar to practitioners, even though such institutions may play only a relatively minor role in shaping how the broader system actually functions, especially as it is experienced by marginalized groups. Similarly, lawyers that staff the world’s legal development institutions learned the primacy of formal institutions in prestigious (Western) law schools, and professional norms predispose them to regard ‘the law’, and the optimal process for reforming it, as essentially similar across different country contexts. For their part, development practitioners tend to offer technical solutions to what should instead be viewed as adaptive problems, because providing technical solutions is what ‘real professionals’ do. Furthermore, it is often easier to measure impact in the formal sector as opposed to community-based processes: measuring ‘best practice’ outputs (laws passed, staff trained) or infrastructure development (courts built) is often far easier than understanding the inherent messiness surrounding how and why disputes are resolved in specific contexts, or what the international community can do to help reduce injustice around issues that are complex, unstable and often deeply contentious.
What can be done to make justice reform more effective for marginalized communities?
There are certainly technical aspects of, and credible ‘best practice’ approaches to, enhancing the effectiveness of the justice sector; there are indeed professional legal skills and sensibilities that apply across contexts. The problem in developing countries, however, is that this knowledge applies to only a small sub-section of the overall rules systems under which most people, and certainly most marginalized groups, actually live. The enduring challenge is thus working out how to make justice projects more responsive to local idiosyncratic realities, and how to ensure that any change process is legitimate in the eyes of key stakeholders. The World Bank’s Justice for the Poor (J4P) program, which currently operates in more than ten countries, endeavors to grapple with these challenges. This work, in concert with the innovative activities of other agencies, provides at least three reasons to be optimistic about the future.
First, donors are increasingly supporting contextualized monitoring and evaluation that gives projects the flexibility to operate outside the state justice sector. Evaluating the performance of the justice sector is difficult. Justice outcomes may be hard to measure, and fundamental questions remain about how institutions and equitable processes emerge, but donors like DFID, AusAID and others are undeterred. These organizations are exploring evaluation methodologies that take into account the complex and non-linear nature of ‘progress’ in justice reform. DFID has embraced a ‘Drivers of Change’ approach that seeks to better understand the local political economy of change to meet the needs of the poor. AusAID is supporting the J4P program in Vanuatu to build a stronger evidence base through engagement with local groups around issues of land leasing and natural resource governance. Lessons from these activities contributed to the design of AusAID and NZAID’s 5-year land reform program, Mama Groun.
Second, donors are also beginning to embrace more realistic timeframes for implementation and results. The World Bank, through the WDR 2011, is increasingly recognizing that progress in creating legitimate institutions will be difficult to measure, may occur on non-linear trajectories, and take decades to consolidate, even in the fastest reforming countries. Other donors are working to develop extended project implementation periods which take into account uneven project trajectories. AusAID, for example, is evaluating the merits of a proposed 18-year timeframe for its ‘Revitalising Indonesia's Knowledge Sector for Development Policy’ program.
Finally, a range of development projects are increasingly incorporating justice and dispute resolution components that engage with both national and local dispute resolution processes. Multinationals now regularly include dispute resolution safeguards in infrastructure projects. Increasing numbers of legal empowerment projects are endeavoring to link state justice system with local development processes. In Nigeria and Sierra Leone, World Bank health sector teams are partnering with the J4P program to incorporate social accountability within lending activities.
These activities certainly do not mean we understand how equitable justice systems emerge. But they may suggest that development institutions are beginning to move away from focusing exclusively on ‘best practice’ solutions to those problems that inherently require a different approach. The core of this new approach is crafting context-specific ‘best fit’ solutions that respond to problems as perceived by actual users of prevailing justice systems, and in which safe spaces are created for local experimentation, the legitimate assertion of rights, the timely mediation of disputes, and effective real-time learning. This learning process may occur both inside and outside the state justice system, and on a timeline and trajectory we do not yet (and perhaps cannot ever) understand. The challenge for development agencies is to reconfigure their structures, approaches and incentives to make it more likely such processes become an everyday reality.
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