Rule of Law and Access to Justice: Perspectives from UNDP Experience+

Ramaswamy Sudarshan*
Justice is an area of increasing importance in development cooperation, and UNDP
views it as closely related to human development and poverty eradication, and as a
fulcrum for a human rights based approach to programming. Accordingly, access to
justice and human rights is an explicit service line in UNDPs democratic governance
practice. The other closely related services lines in democratic practice are
parliamentary development, electoral systems and processes, access to information
and civic dialogue, and decentralisation and local governance.
A well functioning justice sector is a precondition to spur economic growth.
Consequently, most programmes tend to focus in increasing the capacities of the
judiciary to deal with civil and commercial matters. However, for UNDP, rather than
simply a mechanism to foster economic growth, access to justice is more importantly
a means to prevent and overcome human poverty, by strengthening disadvantaged
peoples choices to seek and obtain a remedy for grievances.
Consequently, UNDP has become significantly active in justice programming over the
past years. At the global level, justice and human rights represented around 40% of
the overall Governance Trust Fund allocation in the 2002 Strategic Results
Framework (SRF).
Capacity Development is Key Programme Focus
UNDPs approach to justice sector programmes follows a capacity development
perspective in both substance and process. Capacity is understood as the ability to
solve problems, perform functions, and set and achieve objectives. A capacity
development approach opts for building on existing strengths, rather than substituting
them. The following principles underpin UNDP support for A2J:
1. The rule of law both for legal aid programmes and broader democratic
governance programmes, to ensure transparency and accountability.
+

Paper presented to the European Comission Expert Seminal on Rule of Law and the Administration
of Justice as part of Good Governance, Brussels, 3-4 July 2003. This paper draws upon the reports of
two UNDP workshops: Asia-Pacific Rights and Justice Initiative, Katmand, 28-29 May 2003; and
Conference on Justice and Security Sector Reforms, Oslo, 10-11 April 2003. Acknowledgements are
due to participants who contributed to these meetings, while responsibility for this version remains
with the author. A Practice Note on Access to Justice in the context of justice sector reforms has been
on the anvil, and is expected to be finalised shortly.
*
Advisor-Justice, UNDP Oslo Governance Centre, Norway

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2. Freedom from fear within the criminal justice area, judicial, prosecutorial,
police and law enforcement and security forces.
3. Freedom from want the poor, marginalized and vulnerable.
4. The right to development those excluded from development decisionmaking processes.

Definition of Access to Justice

Ability of people from disadvantaged groups to prevent and overcome human poverty
by seeking and obtaining a remedy, through the justice system, for grievances in
accordance with human rights principles and standards
Major areas in practice development (immediate causes of deficient access):

1) Normative
Protection
(Existence of
remedy):

a. By international and constitutional law

b. By legal and regulatory frameworks
c. By customary norms and jurisprudence

2) Capacity to seek a
remedy (legal
empowerment):

a. Legal awareness
b. Legal counsel
c. Capacity to access formal and informal justice
services

3) Capacity to provide
a effective remedy
(adjudication,
enforcement and
oversight)

a. Effective adjudication and due process: judicial,

quasi-judicial, informal and traditional systems.
b. Enforcement: Police and Prisons
c. Civil society oversight.

Substantive Scope of Access to Justice

Lack of access to justice is a defining attribute of poverty, and an impediment to
poverty eradication. Using a rights-based approach UNDP practitioners have four
major objectives:
1. To focus the problem on the immediate causes impeding access (lack of
safeguards to access or insufficient performance of them);
2. To define who are those most affected (the poor and other people who are
disadvantaged) claim holders,
3. To define who is in the position to ensure performance (institutions, groups and
individuals) duty bearers;
4. To focus capacity development analysis on the capacities of both of them to
address the problem.
The substantive scope on the access to justice involves the following steps:
1. Problem identification (Immediate causes): What types of safeguards are not
performing and impeding access?

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2. Role and capacity analysis: Underlying causes
3. Accountability Analysis: Identification of who are duty-bearers in those areas, and
what type of capacity problems they have to perform their duties effectively.
4. Empowerment analysis: Identification of the capacity problems that the poor and
other disadvantaged people have to claim and exercise those safeguards.
5. Lessons and other resources needed to support strategies that strengthen their
capacities for accountability and empowerment accordingly.
Capacity development requires empowerment and accountability in both claim
holders and duty-bearers.
Claim holders also need to strengthen their capacities to become accountable in the
exercise of rights. Duty-bearers often need to be empowered with respect to other
duty bearers to be able to fulfil their obligations more effectively.
Obstacles faced by the poor and disadvantaged
1. Lack of awareness and legal knowledge.
2. Structural and personal alienation.
3. Lack of access to public services, which are often expensive and cumbersome and
with inadequate resources, personnel and facilities. Police stations and courts may
be non existent in remote areas, and the cost of legal processes (such as legal fees
and fines) is often unaffordable to the very poor. Quasi-judicial mechanisms may
also be non accessible.
4. Lack of organized civil society, which may be due to insufficient expertise,
resources and capacity to organize, as well as government restrictions.
5. As a consequence of their exclusion from the mainstream, there is a lack of
normative protection and sufficient recognition by policies and provisions, which
together with limited education and illiteracy leave the poor in a permanent
illegal status (e.g. prostitutes, street vendors).
6. Procedural discrimination, on economic grounds.
7. Lack of voice, participation and inclusion in policy and lawmaking processes,
including legislative drafting, consultation processes, arbitration and access to
media.
8. Corruption, individual or institutional.
9. Lack of democratic practices/cultures in some NGOs, community-based
organizations and groups, which are conducted through top-down processes in a
way that limits their ability.
Weapons of the Weak
1. International instruments and constitutions recognize fundamental human
rights, and their strong moral ground can be supported by vibrant civil
societies in many countries.
2. Conflict resolution mechanisms exist in indigenous and informal systems, and
poor people often perceive these as more accessible.
3. Poor persons can also build on community solidarity, group identity and
commitment to improve their situation.
Strategic Action Points

1. Pro-poor legislation, participation and inclusion in the legislative process.

2. Expansion of legal aid services to the poorest areas.
3. Strengthening of alternative dispute resolution mechanisms.

Barriers to Womens Access to Justice

1. Obstacles for womens access to justice may be found at two levels: structural and
individual.
2. Structural obstacles include the fact that the majority of the poor are women and
lack representation and participation in decision-making, while being
discriminated in access to economic resources.
3. Some obstacles are reinforced at both individual and structural levels, such as
illiteracy and lack of education, powerlessness, lack of awareness, economic
status reflected in lower wages, and those deriving from customary practices.
Strengths of Women
1. Women have a number of strengths for capacity development.
2. Women may benefit from peer support and formal and informal networking.
3. Women are socially pro-active and able to communicate and articulate their
problems.
4. Women are able to promote long-term social changes by their ability to influence
the future generation.
Strategic Action Points
1. Law reform to ensure gender equality and adequate representation/ court access,
including through special provisions.
2. Awareness, advocacy and outreach (thru. NGOs and community-based
organizations), and expanded legal literacy and legal counsel for women.
3. Gender-sensitive dispute resolution mechanisms.
4. Engendering budgeting processes to address womens access to justice.
5. Capacity development of law enforcement agencies to strengthen womens access.
Indigenous Peoples, Ethnic Minorities, Migrants and Internally Displaced Persons
Obstacles to justice in the case of indigenous people and ethnic minorities may derive
both from their minority status and from features of socio-political systems.
Weaknesses in minorities include lack of literacy and awareness of the justice system,
and ghetto mentality.
1.
2.
3.
4.

Systemic features reinforcing weaknesses.

Misperceptions by outsiders.
Biases within the legal framework and the justice system.
Persistence of a historical tradition of discriminating customary practices,
susceptibility of abuse by law enforcement officials.

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Strengths of Indigenous Peoples
1. Existence of traditional justice
2. Strong sense of ethnic identity and group cohesion
3. support of a rich cultural background
Strategic Action Points for Access to Justice for Indigenous Peoples
1. Strengthened legal frameworks for IDPs and ensuring legal recognition of
indigenous peoples.
2. Developing adequate legal aid systems with sufficient mobility and cultural
adequacy, e.g. through mobilizing indigenous NGOs.
3. For indigenous and ethnic minorities, effective adjudication and due process
require cross-fertilization of traditional institutions and human rights values.
4. Lessons are needed on working with religious leaders and insiders (gatekeepers,
persons with authority, tribal elders/chiefs), identifying major shortcomings of
traditional institutions but building on them and instilling human rights values.
5. Further knowledge is needed on strengthening linkages between informal and
formal systems, including appeal to formal systems, and defining the mandate of
informal systems for minor crimes/sentences.
Persons living with HIV/AIDs and persons with physical or mental impairment
Persons living with HIV/AIDs face very significant obstacles to access justice:
1. Social stigma and feeling of shame (which may prevent them from seeking a
remedy in order not to disclose their status).
2. Family and community impact of revealing their condition.
3. Special economic hardships, which are aggravated by discrimination in the
workplace.
4. Institutional and social biases.
5. Social alarm leading to the risk of criminalizing HIV/AIDs
Persons with physical or mental impairment
This group of disadvantaged people also suffer from social ostracism.
1. There are fewer non-governmental organisations working in this field.
2. Physically or mentally impaired people face other important obstacles such as
special difficulties in accessing information, and inadequacy of justice services.
3. Inadequate skills in judges, police, etc., who may find it difficult to distinguish
persons with mental impairment from those under the effects of alcohol or drugs.
4. Mentally impaired persons are susceptible to be used by others in criminal
activities without proper awareness.
5. Due process guarantees in determining the existence of mental impairment are too
weak.

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A major strength of people from these two categories of disadvantaged population is
the strong willingness and commitment on the part of their members to overcome the
obstacles they face in leading normal lives, without discrimination.

Strategic Action Points

1. Comparative studies on legal frameworks incorporating HIV/AIDs and disability
issues and compilation of ground-breaking jurisprudence against discrimination.
2. Mapping NGO and government work in this field.
3. Reaching out to networks of persons with HIV/AIDs and physical or mental
impairment.
4. Establishment of sensitive judicial procedures (e.g... fast-track, in-camera
proceedings) and mechanisms for effective redress.
5. Exploring the role of quasi-judicial bodies (ombudsman, national human rights
commissions) in dealing with HIV/AIDs and disability-related cases.
6. Support for sensitive prison reforms to ensure prevention of HIV/AIDs and nondiscrimination of these groups.
Decentralisation and its Implications for Access to Justice
Traditional priorities of many development programmes in the area of access to
justice have focussed on the higher judiciary, i.e., High Courts, Courts of Appeal
Supreme Court. With decentralization as a component of national governance
strategies, the focus must shift to lower courts, provincial and other local institutions.
These institutions can provide remedies that are closer to the ordinary citizen. Acting
on this premise, UNDP has been engaged in training of local justices in Sierra Leone,
and training of local and cadi courts in Gambia.
Justice and Security Sector Reforms (JSSR) in Post-Conflict Contexts: Challenges
1. How to balance the relationship between traditional and formal/official justice in
situations in which the formal/official system is weakly institutionalized, and does
not operate throughout the country, while recognizing that traditional justice may
not be rights-respecting.
2. How to reconcile the need for immediate results without jeopardizing long-term,
structural reform efforts, particularly with regard to the judicial system;
3. How and whether to foster demand for JSSR and advance reform initiatives when
elected officials and the sectors leadership do not support the process;
4. How effectively to sideline the losers or spoilers of a JSSR programme.
Pointers for National JSSR Programming
1. JSSR is an essential pre-requisite to conflict prevention and sustainable peace and
2. development;
3. JSSR is an inherently political endeavour;

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4. JSSR programming needs to correspond more closely to the socio-economic
5. development levels of the crisis and post-conflict countries in which it takes place;
6. JSSR planning must take into consideration all financial factors that may impinge
upon sustainability;
7. Although the institutions of the justice and security sector are interdependent,
JSSR programming in crisis and post-conflict countries needs to recognize that the
scarcity of resources -- financial, human, infrastructural, technological, and
political implies that not everything can be done at once and that simpler
initiatives often produce more effective and sustainable reform;
8. National parliaments need to be more involved in JSSR programming, both as a
partner and target of programming;
9. The exchange between the institutions of the justice and security sector and civil
society organizations needs to be expanded and strengthened so that it becomes a
productive partnership rather than an adversarial relationship;
10. JSSR programming can be more closely integrated into social violence prevention
11. initiatives and more tightly linked to small arms control projects;
12. Transitional justice programming addressing the legacies of the conflict Truth
Commissions, Special Courts, reconciliation, etc., and remedial efforts required to
rebuild judicial systems so that they can provide day-to-day justice.
Illustrations of Current UNDP Engagement with Rule of Law and Access to Justice
This section provides a capsule account of a selected set of programmes in which the
UNDP is currently engaged in different regions.
AFRICA
UNDP is facilitating the establishment of a SADC Judicial Secretariat, to be based in
Johannesburg. This initiative was proposed by the Deputy Chief Justice of South
Africa in order to enhance the integrity and independence of the SADC judiciary
which has been under threat from executive interference in several countries in the
region. Assistance has also been sought and being considered for the hosting of an
annual SADC Judicial Colloquium where judges from the region can share
experiences and lend support to their colleagues as well as enhance their interaction
with civil society.
In Chad, UNDP is designing an EU-UNDP co-funded national conference to analyse
the status of justice in a corruption and impunity-ridden society and to prepare a
national justice reform strategy.
In Sierra Leone, UNDP has been involved in the training of Justices of the Peace and
their clerks and bailiffs for duty in rural locations during the critical post-conflict
period in Sierra Leone. The Office of the Chief Justice developed the programme in
cooperation with the Sierra Leone Law School and the Institute of Adult Education of
Fourah Bay College and the Ministry of Justice. Training for the 87 court officers
covers principles of justice and rule of law, procedures, limits and description of
jurisdiction, human rights and related topics. The programme gives special emphasis
to historical problems of justice for women and children, international principles and
standards of human rights, and issues related to the truth and reconciliation process
and the special court for war crimes

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LATIN AMERICA
UNDP is supporting comprehensive programmes to reform judicial processes and the
justice systems in Guatemala, Haiti, Peru and Paraguay. All principal actors such as
ministries of justice, the courts, attorneys-general, legal aid officials and civil society
organizations have been drawn in.
In Costa Rica, Panama, Argentina and Ecuador, for example, UNDP-IDG is engaged
in supporting consensus-building processes aimed at elaborating national agendas for
reforming the justice systems.
In Venezuela, Brazil and the Dominican Republic, UNDP-IDG has engaged in
programmes to contribute to judicial education particularly in relation to human rights
issues.
UNDP and RBLAC are embarking upon a research project aimed at identifying
obstacles to access to justice, focusing on disadvantaged groups (women, children,
indigenous people, prison and institutional inmates, etc
ASIA
In Vietnam, UNDP has been involved with others in the design a project intended to
provide assistance to the government of Vietnam from 2003 to 2010 addressing the
following reform objectives:
1. reform the legislative process for purposes of efficiency and the production of
high quality legislation;
2. enhance the efficiency and effectiveness of law implementation by State
Agencies;
3. ensure the adequacy in quality and number of human resources at all relevant
levels, inclusive of civil servants and professionals engaged in the judiciary;
4. to enable popular access to the legal system by the development of appropriate
and efficient legal information and legal dissemination systems.
Another aspect of the initiative in Vietnam is to establish a Trust Fund/Facility into
which the donor community could contribute resources for continuous support to the
above and related projects.
In Indonesia, recently a UNDP team visited Aceh during the week commencing 17
February, as part of the Public Expenditure Review (PER) Mission, led by the World
Bank. The specific remit of the UNDP team was to make preparations for drafting a
section of the PER pertaining to justice and the security sectors in Aceh thereby
providing a critical analysis of resources and their effectiveness in delivering basic
services to people, including justice and police services, and management of
development. This would serve the purpose of informing funding strategies of
donors.
Also in Indonesia UNDP, EC, DFID and others are supporting the Partnership for
Governance Reforms in Indonesia. The Partnership has been charged with the
responsibility of convening a series of Law Summits, involving the judiciary,

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attorney-general, law ministry, and others, for developing an integrated justice reform
plan.
In East Timor, since the inception of the Transitional Administration, UNDP has been,
and continues to remain, engaged in programmes to enhance the capacity and training
of the judiciary and prosecution services as well as that of the ministry of justice.
In Sri Lanka, UNDP is leading a mission to reinvigorate a judicial/rule of law
presence in the war-ravaged parts of the state and to devise ways of adapting court
and dispute resolution structures that were developed in the Tamil-Eelam controlled
parts of Sri Lanka so that these conform to generally accepted standards.
In the Asia region, UNDP is planning to convene an inter-regional conference in New
Delhi in October 2002, focussing on how to change attitudes and approaches of the
justice sector towards the poor and disadvantaged, redress well documented gender
bias. Participation from NGOs and justice sector actors from Africa, Latin America,
South and South-east Asia is expected
Some Lessons Learned from Access to Justice Initiatives
1. Transparent, effective, accessible, competent and impartial justice is not only an
essential generator of economic development and wealth, but is also vital for the
legitimacy of regimes, for good governance, respect for human rights, and the
fight against poverty.
2. A justice reform programme should be holistic and improve the system at the
institutional, cultural and regulatory levels by establishing appropriate priorities.
3. Civil society, the media and the private sector should participate in the reform
process from the onset.
4. Substantial investments are needed in effective means to protect citizens rights
and impartial and rapid systems for resolving conflicts (e.g. introduction of oral
hearings and immediacy in the civil law).
5. Working simultaneously in constitutional, criminal, civil and administrative law
has proven to be politically convenient and has reduced normal resistance to
change.
6. National ownership of the initiatives is crucial to make changes sustainable.
7. Legal empowerment of the poor, as well as other disadvantaged groups,
contributes to good and democratic governance and poverty reduction.
8. Judicial reform must also encompass the indigenous population (e.g. need for
translators at the judiciary).
9. It is desirable to establish of national commissions after a national election for
improvements in the rule of law. Guatemala is an illustration.
10. There is a strong link between the establishment of the rule of law and the
sustainability of peace accords.
11. Reinforcing civil society oversight is critical for effective accountability and
prevention of impunity. Besides, civil society and the media fulfilling watchdog
functions can enhance accountability and participation, although this requires
access and free flow of information.
12. Support to enforcement institutions (police and prison systems) as well as support
to civil society oversight is generally weak, with some exceptions. Police reform

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is a pending issue in most countries, and prison reform is too often a low priority
in countries with scarce resources.
13. Developing the capacities of informal institutions and alternative dispute
resolution mechanisms, which are often perceived as more accessible by
disadvantaged people, and their sensitisation on human rights and gender.
14. Extension of justice to remote areas, and interface between formal and informal
systems for the protection of rights.
15. Sensitisation of justice professionals (judges, lawyers, etc.): how to transform
awareness into reality. Impact and sustainability of human rights
education/awareness strategies.
16. Promotion of professional codes of conduct.
17. Strengthening financial and political independence of judicial and quasi-judicial
bodies.
18. Building on the potential of national human rights institutions and judicial
activism.
19. Strengthening access to information, and improve adjudication through simplified
procedures and fast-track.
20. Strengthening coordination and dialogue among national institutions with a role in
the justice system.
Evaluation of Access to Justice Programmes
Justice performance is hard to evaluate. It is important to distinguish between outputs
and outcomes of justice sector reform. We need to have target indicators projecting
results based on specific objectives as defined in a project document; benchmarks to
compare internal data from the justice sector with data from a different sector;
milestones establishing intermediate goals; and situational indicators e.g.
workload of judges, length of trials etc.
There is a great of more work that needs to be done on indicators related to the
provision of justice to citizens in the context of the development of general sets of
indicators on good governance. That is because justice is the first among public
virtues in a good society, and therefore, ought to be the first charge on the resources of
states.