Felix Marco Conteh, Sonkita Conteh, Lyttleton Braima, Aisha Fofana Ibrahim, Henry Mbawa and Yakama Manty Jones
(The authors are part of the Sierra Leone component of the three-country research being conducted by the Centre for Alternative Policy Research and Innovation (CAPRI)
This blog discusses emerging findings from a research into access to justice which confirm a long-held view that paralegals support social cohesion and help fill gaps in Sierra Leone’s justice system. These findings are from a three-country research effort, supported by the Open Society Initiative for West Africa and the International Development and Research Centre of Canada that is assessing and comparing the cost and benefits of different community-based justice services. Given Sierra Leone’s recent history, the study’s findings will be particularly relevant for policy making on access to justice and peace-building.
In 2003 the trial run of a paralegal program in Sierra Leone took off. This wholly civil society effort was meant to explore alternative methods of justice delivery in the rural areas of a country just beginning to recover from a traumatic decade of conflict, caused in part by a corrupt justice system. This experiment was inspired by experiences from elsewhere, particularly South Africa, where many decades earlier, paralegals provided justice services for blacks caught in the crosshairs of apartheid laws, as well as some very practical considerations. As part of the experiment, paralegals provided legal advice, information and representation on a range of civil and criminal justice matters.
Courts and police stations in rural areas had been destroyed during the war and the number of lawyers in the country was minuscule and concentrated in the capital, Freetown. Even before the onset of conflict, these justice institutions were highly problematic. The country’s Truth and Reconciliation Commission found for instance that there was no meaningful access to justice for most Sierra Leoneans – the police and judiciary were in effect instruments of oppression in the hands of an abusive executive. Against this backdrop of historical mistrust, how does a country address the critical need of access to justice at the community level?
Enter community paralegals
What began as a question has now morphed into a major national response to the many and varying justice needs of rural communities. The design of the Legal Aid Act of 2011 was largely informed by the paralegal experimentation which started in 2003. The law formally recognizes paralegals as justice service providers within a mixed system of civil and criminal legal aid. These paralegals use a variety of tools to tackle basic justice problems. They mediate, negotiate, navigate institutions, provide information, organize communities to take collective action and provide legal education.
With the number of accredited paralegal organizations across the country well below the optimal requirement, the ambitious aim of the legal aid act to embed a paralegal in all of the country’s 190 chiefdoms is far from being realized. However in places where they operate, paralegal organizations are providing communities with a menu of dispute–resolution opportunities not seen before 2003 – and community members, previously regarded as powerless and at the mercy of oppressive justice delivery structures, are increasingly drawing on these organizations and other entities, in ways that manifest their agency, in the process of making rational choices.
The Centre for Alternative Policy Research and Innovation (CAPRI) – Sierra Leone, is part of the three-year research effort involving researchers in Sierra Leone, Kenya and South Africa that is assessing and comparing the cost and benefits of different community-based justice services, as well as shedding more light on this phenomenon. This multi–country study was commissioned in 2018 on the back of a request by the African Centre of Excellence and Global Empowerment Network, a coalition of African civil society organizations interested in learning more about legal empowerment, the contribution of paralegals to community justice delivery, as well as gaps between law and legal services.
The Sierra Leone study focuses on paralegal interventions in specific areas of justice service delivery, namely family law, land, property and tenancy. While the study’s primary aim is to uncover, through quantitative and qualitative methods the social and economic costs and benefits of providing and seeking justice via the paralegal mechanism for organizations and clients, it aims to assess other issues as well. These include the impact of gender and anti-discriminatory practices on costs, benefits and outcomes of community justice services as well as the role of technology in the provision of community justice services. Seven paralegal organizations and the country’s Legal Aid Board are participating in the study.
Emerging findings: forum shopping and communities’ use of paralegals to preserve relationships
Some of the initial findings of the study make interesting reading. One in particular stands out. It supports the view that the paralegal methodology supports social cohesion in the process of resolving disputes. Focus group discussants across the country reveal crucial dynamics in the use of paralegals to resolve justice problems. Paralegal organizations, they observe, prioritize “the need to restore or solidify relationships, over determining who is right or wrong. This is in sharp contrast to the adversarial approach and binary outcome that is prevalent at the Local Court, Magistrate Court or police station. This nuanced understanding of the approach and outcomes available at the different dispute resolvers in the community has influenced community members’ choice of dispute resolution forum. The findings identify a number of considerations influencing forum shopping. These include the need to preserve or terminate a relationship and the desire to punish the offender or obtain immediate restitution, in addition to cost, time and accessibility of legal service.
If the service user intends to preserve the relationship with the other party to the dispute, they will normally approach a paralegal organization instead of the court or police. If they do not, the adversarial approach of the court and police come in handy. For example, a woman whose husband has reneged on his responsibility to take care of his family, is more likely to choose a paralegal organization if she wants to save the relationship so that they can live as a family. On the other hand, if she only desires to get the man to fulfill his financial obligations, and has no interest in the relationship, she will go to the police or the Local Court.
In certain types of cases such as debt or land dispute, initial findings suggest that disputants prefer directing their complaints to the police or local courts instead of to paralegal organizations. In these types of cases the desire to preserve relationships does not appear to be a priority for complaining parties. Research participants’ perception of the police and courts’ ability to deliver what they consider as binding, enforceable and sometimes punitive outcomes make them a more attractive avenue than paralegals for debt or land disputes. This does not mean however that paralegal organizations do not help communities resolve debt or land issues. In fact, the dockets of the participating paralegal organizations show that a significant number of the cases they handle relate to land and debt issues, although the overall majority of cases relate to family law.
While additional data collection and holistic analysis of the data may be required to form definitive conclusions on the other research questions of the study, it is clear from the initial analysis of the data that the availability of a range of dispute resolution mechanisms has provided more options for people in rural communities to choose from depending on their specific needs. On this front, the country has come a long way indeed since 2003. By self-consciously opting to use paralegals to preserve relationships during disputes, communities in rural Sierra Leone surface crucial questions about the goals and design of the country’s justice system. Is the adversarial approach relevant for all kinds of disputes and should it remain the most dominant dispute–resolution model? How can the right balance between the adversarial and alternative dispute models be achieved? As paralegal programs continue to spread, more evidence for such a determination will be generated but it will require studies like this to collate, analyze and provide some answers. It is hoped that this study’s additional findings will provide further guidance, including on more administrative questions of cost, and best ways to expand justice for all.
This blog was originally published on Namati on 23 September 2020.