For the sake of fairness: Justice in development

I spent four years co-directing a grassroots legal empowerment organization in Sierra Leone called Timap for Justice (“Timap” means “stand up” in Sierra Leonean Krio). One of our clients was a cigarette seller and sometime sex worker from the east end of Freetown—I’ll call her Kadiautu. A drunk off-duty police officer brutally beat Kadiatu after an argument one night, not far from the station.

While she lay unconscious, bystanders stole the boxes of cigarettes she had been carrying atop her head.  Kadiatu filed a complaint with the internal disciplinary department of the police but got nowhere.

There is a phrase in Krio, na fo biya no mo—“one should bear, nothing more.” People began saying this to Kadiatu: You are powerless. You should bear the suffering life has dealt you and move on and forget and survive.

But her boyfriend took her to the Timap office downtown, and a community paralegal there eventually met the officer. The paralegal’s promise that Timap would monitor the internal disciplinary board’s proceedings and, depending on the outcome, consider a civil suit for damages, led the officer to apologize publicly to Kadiatu and to offer to pay compensation. (More on Kadiatu’s story, and the story of Timap, is available here.)

The sight of a police officer bowing his head to a poor female street vendor astonished Kadiatu and her neighbors. Perhaps this is the essential guarantee a justice system should provide in any society: no one needs to simply bear arbitrariness or abuse.

Many agree that a functioning justice system is of paramount importance in its own right, and is also crucial for fostering development and reducing poverty.¹  John Stuart Mill put it this way, in On Liberty in 1859: “All that makes existence valuable to anyone, depends on the enforcement of restraints upon the actions of other people.”

A justice system—which I take to include the courts, the police, prosecutors’ offices, legal aid providers, administrative law mechanisms, customary law institutions, anti-corruption commissions, and property and commercial registries—shapes whether firms can rely on their contracts, whether citizens have recourse from breaches in policy or failures in service delivery, whether corruption and other crimes are punished, and whether the power of the executive has limits.

Ishac Diwan suggests in his recent post that the explosive movements for democracy in the Middle East may draw more fuel from desires for fairness and impartiality than from dissatisfaction with economic stagnation.  Satisfying those desires requires the reform of justice institutions.

But building an effective justice system is a thorny and fraught process.  Many attempts to do so have underperformed or failed because of, among other reasons, misinterpretation of local context, lack of political will, lack of patience, and inadequate capacity.²  Even when the outputs of interventions are successful—a new case management system is adopted, courthouses are refurbished, judges receive training—the relationship between those outputs and ultimate outcomes is difficult to predict or measure.  Have the interventions made the system more accessible, or more fair?

That is not to say that all justice reform is futile.  Here are a few examples, not of frogs turning to princes, but of moderate progress: Mobile courts in the Philippines allow judges to travel to prisons and underserved communities to adjudicate, and have led to the release of thousands of pre-trial detainees.³  A judicial reform project in Venezuela led to between 20 and 70% reductions in case processing times.⁴  Timap for Justice Sierra Leone, which I mention above, was found to empower clients and communities to achieve redress for grievances that had otherwise stagnated.⁵

Furthermore I would argue that, no matter the difficulty, those seeking to promote development cannot avoid grappling with justice institutions. Building a new road involves compensating land owners, which in turn often requires navigating plural, overlapping land tenure regimes. Supporting expansion of a health service creates new entitlements, which in turn poses the question of how citizens obtain redress in the event of a breach.  (The idea that questions of law and justice permeate development is the premise of the WB’s justice for the poor program).

Here are, in my view, four frontiers for justice reform going forward:

1) Building a stronger evidence base. We need methods for monitoring and evaluating justice institutions that address the distinct challenges of the field: outcomes that are difficult to measure, causal chains that are difficult to trace, and reforms whose results are sometimes inherently indeterminate.

2) Elaborating a context-responsive, problem solving approach. As with public sector management, justice reform has often been plagued by transplantation of “best practices” without an adequate understanding of socio-legal context.

3) Improving grievance redress for services like health, education, and water. Development efforts sometimes establish project-specific complaints handling mechanisms; those should be better integrated into countries’ justice systems, including administrative law mechanisms, ombudsman offices, and the courts.⁶

4) Synthesizing social accountability and legal empowerment. Measures like community scorecards and social audits have tended to focus exclusively on the nexus between community and service provider, or between community and local government.  Those efforts could be linked to legal aid and legal empowerment efforts that seek redress from the wider network of state authority in the event that local pressure fails.  (I elaborate this argument here).

I’d be grateful for readers’ thoughts, both below and through the consultation process for the World Bank’s approach to justice reform, which runs until March 15.

¹See, for example, Douglass North, Institutions, Institutional Change, and Economic Performance  1990, p. 54, claiming that the absence of a low-cost means of enforcing contracts is “the most important source of both historical stagnation and contemporary underdevelopment in the Third World”; Rick Messick, “Judicial Reform and Economic Development: A Survey of the Issues,” in 14 World Bank Research Observer, no. 1 (1999), p. 124–26, concluding that, although the specifics of causality are unclear, “history and comparative analysis support the view that a better judicial system fosters economic growth.”
²Scholars do report some successes, but also elaborate on the challenges facing justice reform efforts.  See, for example, David M. Trubek & Marc Galanter, Scholars in Self-Estrangement: Some Reflections on the Crisis in Law and Development Studies in the United States, 1974 WIS. L. REV. 1062; Eric Jensen and Thomas Heller (eds.), Beyond Common Knowledge: Empirical Approaches to the Rule of Law 2005; Thomas Carothers (ed.), Promoting the Rule of Law Abroad: In Search of Knowledge 2006; Linn Hammergren, Envisioning Reform: Improving Judicial Performance in Latin America 2007; Michael Trebilcock and Ronald Daniels, Rule of Law Reform and Development: Charting the Fragile Path of Progress 2008.
³Jay Rempillo, “SC Procures Three More EJOW Buses,” Court News Flash, 4 January 2010.
⁴Rogelio Pérez Perdomo, “Una Evaluación de la Reforma Judicial en Venezuela,” in Judicial Reform in Latin America: An Assessment for Policymakers, Center for Strategic and International Studies and Centro de Estudios de Justicia de las Américas (2006).
⁵A World Bank assessment of the program, in which researchers selected 42 cases from Timap’s docket and interviewed all parties involved, reported that respondents were “overwhelmingly positive” about their experiences with Timap. Respondents “praised Timap’s effectiveness in resolving disputes, particularly those that confront institutions or power relationships.”  The report found “strong evidence that Timap‘s interventions were indeed empowering their clients, the paralegals themselves, and the community as a whole to claim their rights and pursue cases that had previously stagnated.”  Pamela Dale, Delivering Justice to Sierra Leone’s Poor: An Analysis of the Work of Timap for Justice, World Bank, 2009, p. iv, 33.
⁶The empirical work of Varun Gauri and colleagues on courts in South Africa, Nigeria, Brazil, Indonesia, and India shows that courts have a substantial role in shaping health and education services.  Varun Gauri and David Brinks (eds), Courting social justice: Judicial Enforcement of Social and Economic Rights in the Developing World 2008, at p. 30–32.