ACCESS TO JUSTICE – what do the people say?

14 May 2018 - 09:45

OF all the data unearthed by the research organization, AfroBarometer, and presented to the judges attending the recent core skills week in Cape Town, none is more surprising than this: though levels of mistrust of the courts are high across all the African countries surveyed, no fewer than 72 percent of participants believed that the courts have the right to make decisions that everyone must obey.

Against the widespread perception of court officials as corrupt, and the low levels of “trust” in the courts, the contrasting view that acknowledges judicial legitimacy is both startling and a possible basis for court-driven improvement.

The data, outlined for the judge-participants by AfroBarometer’s Sibusiso Nkomo, started the week’s work with some unexpected electricity: most of his audience were alarmed by the figures that showed the serious lack of trust in the court system reported by people surveyed in 36 African countries.

Nkomo explained that the research had been aimed at unpicking issues around access to justice, long understood to be a crucial indicator of democracy and good governance. A series of questions were asked by the researchers, aimed at a deeper understanding of how people experienced the courts, the judiciary and justice itself.

Across all 36 countries, and across divides of economic background, gender and education, the most universal complaint related to the delays experienced in trying to access justice. Perhaps that is not surprising. My own research, in a completely different project, relates to SA cases from the early 1900s, and indicates that the period from commission of a crime to its resolution by way of high court trial and sentence, would often be no longer than three months. In modern times, however, anecdotal evidence suggests that delays of many years are quite common, with civil cases faring little better. The AfroBarometer research shows that whatever the actual length of delays, people throughout the continent are critical and want speedier resolution of disputes, criminal or civil.

In general, countries acknowledged as democratic do significantly better in AfroBarometer’s survey on access to justice. “On average, citizens in democracies report higher levels of trust in the courts, lower levels of bribe-paying and perceived corruption, and greater ease of obtaining assistance than those living under more autocratic regimes,” says the report. Not surprisingly, when a country is experiencing conflict, or its immediate aftermath, access to justice is seriously compromised.

Some of the data might shock the judiciary in certain countries. Take this example: over the last decade, courts have suffered “far more losses than gains” in public esteem. Across 18 countries involved in monitoring from 2005, trust has dropped six percentage points. Several countries have shown some improvement, including Benin, Namibia, Zambia and Zimbabwe, but not one country has shown “consistent gains” throughout the decade – and sometimes the situation has become a great deal worse. For example, “trust in the courts dropped 28 points in Mozambique over the same period and 20 points in Ghana.”

The report is well worth reading through, even if you skip the charts – though most people will want to see how their own country shapes up against the rest. For one thing, there seems to be some room for individual judges to respond to the problems raised by respondents such as that “judges don’t listen”. Even the problem of perceived corruption, often expressed as having to pay money to the judge, might concern genuine fees of some kind that have nothing to do with the judiciary itself, and it might be worthwhile for judges to consider asking litigants questions about their experiences, and offering a word of explanation about “fees” paid for example, as a routine part of court dialogue.

The report’s conclusion, on the significance of the findings across the continent, is of great importance for judges to bear in mind when considering how the justice system operates in their own jurisdictions:

“While widely seen as legitimate, Africa’s legal systems fall well short of providing their citizens with adequate access to justice.

“Even in the highest-performing countries, such as Lesotho, Botswana, and Cape Verde, sizeable proportions of the population lack trust in the courts, perceive judges as corrupt, and encounter significant problems in dealings with the judicial system.

“Some of the poorest performers on access-to-justice indicators are post-conflict countries such as Liberia and Sierra Leone. These systems, especially Liberia’s, display a classic post-conflict pathology of exceptionally high demand for justice services imposed upon an overwhelmed and decapacitated legal system that is failing to meet citizens’ needs. Building equitable and accessible justice systems in these countries must be a top priority.

“But we also note that neither peace nor democracy guarantees that citizens enjoy adequate access to justice. A case in point is Ghana, where perceptions of extensive corruption and reported difficulties in obtaining court assistance make the legal system anything but a model for the continent. Ghana and the other countries covered by this analysis can learn a great deal about how they can improve their access-to-justice performance by listening to what ordinary Africans have to say.

“Understanding the perspectives and experiences of the people who have used the system, as well as those who have not – who have perhaps even deliberately avoided it – can contribute to building a more complete understanding of current challenges, and to designing a roadmap for improving access to justice for all citizens.”

Click here to download the pdf....(2MB)