Providing access to justice for all?

It is vital that the measures we use to gauge progress on achieving the Sustainable Development Goals offer the best possible chance of genuinely contributing to improved access to justice, argues Lisa Denney.

Four lessons for the SDGs from past rule of law assistance:

It is vital that the measures we use to gauge progress on achieving the Sustainable Development Goals offer the best possible chance of genuinely contributing to improved access to justice, argues Lisa Denney.

With justice now firmly integrated into the Sustainable Development Goals (SDGs), it is critical that we don’t sit back in our chairs thinking the hard work is done. In between the challenge of getting justice included in the SDGs and actually operationalising that in practice, is the vitally important task of ensuring that the measures we use to gauge progress on justice are meaningful.

Indicators are often seen as the technical, often quantitative, articulation of areas of development and for that reason are often left to statisticians to develop. But indicators are themselves deeply political – in the case of the SDGs they are essentially the definition of what we mean by justice. If we measure the percentage of detainees in pre-trial detention, for instance, that implies something different about our understanding of justice than if we measure people’s perceptions of the courts or discrimination of the justice system. Having ‘justice’ included in the SDGs as a goal area is thus just half the task: putting meat on the bones of what we mean by justice through the indicators we choose is the other hugely important half.

This task of determining global indicators is set to be decided in the next week. With that in mind, and recognising the deeply political and hugely influential nature of what those indicators end up being, it is important that the architects take note of what we've learnt about justice programming to date. This should help to ensure that our efforts to improve justice don’t fall back on outdated forms of normatively led rule of law assistance but rather are at the cutting edge of what we know about effective justice sector support, and help to forward that agenda. Four key lessons are set out here.

First, it is important that we start from a position that appreciates how justice actually works in societies and not how we would like it to work. Too much rule of law assistance has sought to replicate the justice institutions of ‘advanced’ or Western countries without appreciating the presence of different legal orders. This means recognising legal pluralism – the many different legal orders that exist in many countries outside of the formal justice system. It has been estimated that up to 80 per cent of disputes are solved through such non-state justice mechanisms in developing countries. This is important because it means meaningful justice indicators should not only measure formal justice, but justice as it is understood and accessed locally – be that through customary providers, religious groups or alternative dispute resolution, for instance.

Second, justice needs are different in different contexts and so while we may need some indicators that are comparable at a global level, we also need to ensure there is room for governments to select and measure indicators that are meaningful to their situation. For instance, improving justice in Liberia may require increasing the capacity of the courts, as well as the police, in order to ensure evidentiary standards are met when sending matters to court. Yet in Ethiopia, improving justice might relate more to decreasing political influence over the judiciary. And in Timor-Leste it might be about strengthening the customary justice processes at the village level to deal with land disputes. Because justice needs are different in different places, our indicators to measure progress should capture this variation.

As Claire Melamed argues, the focus needs to be on triggering progress at the country level and this means ensuring that countries have the flexibility to select indicators that measure the kind of progress that is meaningful in their contexts. This could also help to get around the skewed data collection that some have argued occurred as part of the Millennium Development Goals – whereby international attention and funds concentrated on those aspects of the goal areas that were being measured, to the detriment of other important aspects which were comparatively starved of funds. For instance, health indicators focused on maternal and child mortality and certain infectious diseases to the exclusion of other health needs; and a focus on primary school enrolment overlooked investments in secondary and tertiary education. Of course, the SDG indicators cannot cover everything and there is a need to prioritise. But in doing so it’s important to remember the power of indicators to shape funding allocation and therefore to think carefully about what the selected indicators suggest will equate to improved justice and what might get left out or overlooked.

Third, it is important that efforts to improve justice – and thus the indicators to measure progress – do not fall into the supply/demand trap. Much early rule of law assistancefocused on building courts, writing laws and training judges – essentially providing the bricks and mortar of what donor countries think a justice system looks like. Yet we know that simply gap-filling in this way on the supply side, focusing on the form of justice over the function of justice, does not produce transformational change. At the same time, however, focusing all our efforts on empowering individuals and communities to demand better justice is also unlikely to improve justice where there is no reasonable access to decent quality justice for such communities. Indicators thus need to strike a balance between the supply and demand sides of justice provision.

Fourth, we must recognise that justice goes to the very heart of the political settlement– to how power is divided and exercised within a given society. Achieving change in the justice sector means that there will be winners and losers and we should expect that there will be resistance to change from those who benefit from the status quo. This means that we need to be savvy to the ways in which indicators can be ‘duked’ to serve the interests of the powerful. For example, one way to improve pre-trial detention statistics would be to convict or release detainees. This does not necessarily equate to an improvement in substantive justice but does improve the statistic. There is no easy way around this and the SDGs will rely on the good faith of those signed up to committing to them. However, in selecting the final indicators architects should consider whether they pass the political ‘sniff test’ and whether they are likely to be able to withstand potential interference from those resisting change.

With these four considerations in mind, indicators can be developed that build on what the international community has learnt about justice and the challenges of improving it. These considerations are critical to getting indicators that are meaningful and provide the best chance possible of genuinely contributing to improved access to substantive justice. Outdated forms of rule of law assistance that focus disproportionately on the formal legal system, treat justice as the same across diverse contexts, fall into either the supply or demand trap, and overlook the ways in which justice can be politically instrumentalised won’t get us there.

Lisa Denney is an independent researcher based in Melbourne, Australia. Her interests include security and justice, conflict, non-state governance and political economy analysis. Lisa is also a Research Associate with the Overseas Development Institute, where she manages the Sierra Leone country programme of the Secure Livelihoods Research Consortium and works with the g7+ Group of Fragile States. Lisa holds a PhD in International Politics from Aberystwyth University and is the author of Justice and Security Reform: Development Agencies and Informal Institutions in Sierra Leone (Routledge). Lisa has undertaken research in Bangladesh, Cambodia, Fiji, Ethiopia, Kenya, Malawi, Nigeria, Sierra Leone, Sri Lanka and Timor-Leste.

Editor's note: the two global indicators being proposed to measure justice in Goal 16 are:

• 16.3.1 Proportion of victims of violence in the previous 12 months who reported their victimization to competent authorities or other officially recognized conflict resolution mechanisms
• 16.3.2 Unsentenced detainees as a proportion of overall prison population