Upload
avocats-sans-frontieres-asbl
View
217
Download
1
Tags:
Embed Size (px)
DESCRIPTION
To illustrate the interdependence and indivisibility of all economic, social, cultural, civil and political rights for the elimination of extreme poverty and social exclusion, by emphasizing that the realization of certain rights are essential to the promotion and protection of others.
Citation preview
THE OBSTACLES
PEOPLE LIVING IN EXTREME POVERTY
FACE IN
ACCESSING JUSTICE
2
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
Shira STANTON, Expert – Social and Economic Rights
Jean-Charles PARAS, Expert – Civil and Political Rights
Rue de Namur 72 Naamsestraat
1000 Brussels - Belgium
Tel. +32 (0)2 223 36 54
WWW.ASF.BE
3
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
4
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
1 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.
5
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
3 ASF (2011). Study on legal aid in Burundi
6
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 rights-
holder 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.
7
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
4 UNDP (2004). Access to Justice: Practice Note, p.3, own emphasis 5 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.
8
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 political-
economic 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,
7 ASF (2012). Droits économiques et sociaux des Batwa au Burundi.
9
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 rights-
holders 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 non-
discrimination. 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
8 DHS (2010). Enquête Démographic et de Santé Burundi, page 18. 9 Committee on the Rights of the Child (CRC) 2010. Concluding Observations: Burundi. 55th session 1 September-13 October 2010. 10 Ibid. 11 Ibid.
10
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
12 “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).
11
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
13 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. CNCD-11.11.11 et RRN.
12
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
15 See, for example, the Yalisika case, currently being taken up under ASF’s sexual violence programme in DRC. 16 More information available on request from ASF.
13
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 non-
threatening 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.
14
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
17 Open Society Foundations (2011). The Socioeconomic Impact of Pre-trial Detention 18 Article 9.3, UN 1966 International Covenant on Political and Civil Rights; Article 5.3, European Convention on Human Rights.
15
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.
16
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 Art. 20.1 20. (1) 24 Civil Liberties Organisation v. Nigeria, ACHPR, Communication n°151/96, 1-15 November 1999
17
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
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;
2. 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
18
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. 26 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. "