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Community Justice Services Policy Brief

HiiL POLICY BRIEF

Community Justice Services

March 22, 2022
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Building on the merits of informal justice and alternative dispute resolution processes, many countries have developed community justice or informal justice programmes. Although informal justice processes come in many different forms, they tend to have a participatory nature, strive for consensus, focus on social harmony and promote restorative (conciliatory) solutions. They are similar to mediation, but can also have elements of adjudication. Another advantage of informal justice processes or community justice services is that the community can help to ensure compliance of decisions. 

Community justice services seem to be an indispensable element of a justice system that provides equal access to justice for all. Gradually, policymakers are finding out how to scale the programmes to a regional or country level. In this policy brief, we list a number of critical success factors that we developed with insights from leading experts in the field of community justice services. We also used our experience in innovation labs for community justice services and benefited from our work with justice startups implementing projects in communities. The findings in this policy brief aim to inform municipal authorities, ministries of justice and leaders in the court system about the way they can scale community justice services, whilst respecting the needs and capabilities in the communities they intend to serve. 

We expect community justice services to grow, because formal justice systems cannot serve people at sufficient scale for all their pressing justice problems. Community justice services have to overcome barriers to growth, by finding sustainable revenue models, by developing an oversight and monitoring system connected to the formal justice institutions, and securing a long-term commitment from national governments or donors. 

1. Justice close to home: A gamechanger?

When working on access to justice for all, experts and practitioners point towards informal dispute resolution in communities as a way to close the access to justice gap [1]. Speaking about informal justice, one leading author mentions the perceived advantages that mirror the weaknesses of the formal justice system: financially more sustainable, fast, close to people’s homes, grounded in local culture, and easier to understand. Although informal justice processes come in many different forms, they tend to have a participatory nature, strive for consensus, focus on social harmony, and promote restorative (conciliatory) solutions. They are similar to mediation, but can also have elements of adjudication. Another advantage of informal justice processes or community justice services is that the community can help to ensure compliance of decisions [2].

Justice needs surveys show that informal justice and conciliatory processes are appreciated by users [3]. There is clear potential for growth. Unleashing this potential requires overcoming a number of risks and disadvantages, including lack of predictability and coherency, discrimination and exclusion of marginalized groups, weak procedural safeguards, and use of sanctions that do not conform with human rights and criminal justice standards [4].

1.1 Scaling models for community justice services

Building on the advantages of informal justice and alternative dispute resolution processes, many countries have developed programmes that have the ambition to scale towards the country level. This comes with increased standardisation and formalisation of the services, for which we found a number of models that are being used internationally.

The literature reviewing various forms of community justice programmes and interventions in a particular country is vast [5]. On our Justice Dashboard the reader can find references to examples and to the models. 

In this policy brief, we focus on how to scale such programmes in a systematic way, building on our data collection and our work with justice innovators and justice leaders in Africa, the MENA region, Latin America and Europe. In the past, we did case studies on Houses of Justice in Colombia, Local Council Courts in Uganda, Gram Nyayalaya in India, Abunzi in Rwanda, Judicial Facilitators in Latin America and worked with community paralegal programmes and organisations offering community mediation in a range of countries.

 

Community Justice Service Examples

Bangladesh

Village courts and ShalishBelgium

Justices of the peace (Vrederechters/Justice de paix)Burundi
BashingantaheColombia
Houses of justice or Casas de JusticiaEthiopia

Various states in Ethiopia have informal justice systemsFrance

Maisons de la justice et du droit (houses of justice) in major citiesIndia

Lok adalatsKenya

Community based paralegal programsLiberia

National Palava Hut ProgramNicaragua

Facilitadores JudicialesNigeria

Various systems of community justice guided by traditional rulersNorway

Conciliation boards in every municipalityPhilipines

Katarungang PambarangayRuwanda

Abunzi courtsSierra Leone

Paralegal program ran by Legal Aid BoardSouth Africa

Community paralegalsSwitzerland

Each canton has its own system of justices of the peace or other Schlichtungsbehör den (Autorités de conciliation)Uganda

Local council courts

The map shows some of the prominent examples of community justice services available in different parts of the world.

1.2 Local problems, local and similar solutions

Community justice services tend to work on justice problems between people living closely together, such as neighbour problems, land issues, family problems, and problems with the local authorities. They address justice issues via mediation and conciliation as well as focus on bringing together people within the community so they contribute to solutions, which conform to social norms. Community justice services are more common in rural areas than in cities and are more prevalent across middle and low income countries. These services are provided by community authorities, trusted members of the community, or public officials elected or endorsed by the community. They can relate to customary justice in a tribe, or they may have roots in a religion. Community justice services can be connected to local or central government, with the potential to scale across borders. 

Community justice services have been an important facet of the communities they serve historically. They not only have a substantial reach in providing people-centred justice but they also achieve a considerable impact on people’s lives. They emerge organically and exist close to the people whose justice challenges they address. They are also the most frequently resorted to justice service delivery models across different countries. However, our analysis shows that there are barriers to scaling community justice services and issues with their effectiveness. 

At times, they face issues with integration with the formal legal systems especially in getting their decisions recognised or enforceable by the formal justice system. Funding challenges also remain. Owing to their informal nature, which grants them effectiveness, community justice services may be more likely to be dominated by power structures that exist in the community.

This policy brief takes into consideration the discussions that emerged during the roundtable conversations of the HiiL Working Group on Community Justice Services as well as cases developed by the members of the Working Group in analysing different characteristics of community justice services and makes policy recommendations for increasing their effectiveness. 

1.3 Methodology

To answer the question “How might we increase access to justice for people by scaling and improving community justice services?”, we formed a working group of external experts. To guide the discussions with working group members, we identified the following questions: 

  • How might we improve the effectiveness of community justice services?
  • How might we suppHow might we support community justice services with standardisation and tools?ort community justice services with standardisation and tools?
  • How might we connect community justice services with the formal justice system?
  • How might we develop the enabling environment for community justice services?
  • How might we make community justice services affordable and sustainable?
  • How might we build community justice services into a scalable operation?
  • How might we market a community justice services delivery model?

The working group engaged with these design questions and from this dialogue emerged the critical success factors that can help in scaling community justice services.

To select members for the group, we identified six experts that represented diverse demographics and expertise  (innovator, policymaker, investor, legal professional, civil society) from within and outside HiiL’s network. They are: 

  • Marcus Manuel, Senior Researcher, Overseas Development Institute, UK
  • Gard Benda, Founder, Bataka Court Model, Uganda
  • Maha Jweied, Fellow, Center on International Cooperation, USA
  • Juan Botero, Associate Professor, Universidad Javeriana Law School, Colombia and Consultant, HiiL
  • Chhavi Rajawat, Former Sarpanch, Soda Village, India
  • Christopher Marshall, Team Leader, Western Balkans Rule of Law Initiative, Chemonics

*Klaus Decker, Senior Public Sector Specialist from the World Bank, who joined us in the initial phase of the consultation. 

We organised six roundtable discussions between June 2021 to February 2022 to facilitate the conversations on the design questions among the experts. 

This policy brief summarises the findings of the round table discussions and lessons learnt from experiences of working group members in setting up community justice services including:

2. Critical success factors

In the sections below, we identified five critical success factors based on discussions with working group members and examples of community justice services that emerged from the conversations during the round tables. We also include main takeaways from the cases that we worked on with support from the members of the working group.    

2.1 Standardising effective working methods in a setting of scarce resources

Community justice services differ from village to village, from tribe to tribe. For example, studies show that in the Sahel region, each local tribe may have its own way of settling disputes, which may not be acceptable to another tribe in the same region [6]. Even among community justice services that did not emerge organically but have been systematically set-up as in the case of Houses of Justice in Colombia, working methods could benefit from further standardisation. Dispute resolution methods could depend less on the good nature and judgement of individual justice practitioners, more on best practices established by inter-agency coordination [7].

There is much to gain by standardising the practical steps that justice workers take to resolve a problem. A standard process can guide disputing parties through the various phases of dispute resolution, and give them an understanding of what to expect in terms of fees charged, documents required and the estimated time taken to resolve a dispute. There are two dimensions of standardising working methods, one is working methods within an organisation and two is dispute resolution methods offered to users.

With the help of experiences shared by the working group members, we have developed the following insights on standardisation and effectiveness:

  • What can help in standardising dispute resolution methods offered to users are guidelines on how to resolve and decide disputes [8]. Community health care workers and other helping professions tend to be effective because they can access evidence about what works through guidelines. These guidelines can offer best practices on dispute resolution techniques such as mediation and practical steps that justice workers can apply when resolving a dispute, instead of dealing with cases individually.
  • Specialisation is recommended. Best practices for family dispute resolution are different from those for issues at work or neighbour disputes.
  • On the flip side, standardising may not be suitable in all contexts, especially if resources available to justice workers are limited. In such situations working with what is available becomes imperative. For instance, an extensive fact-finding process regarding the level of noise in a community may be too expensive. So ideally, guidelines should offer options for less costly solutions if resources are limited.
  • Guidelines and other ways to standardise procedures should be used by providers of community justice as a means to an end, not as rules that need to be observed. Currently, informal justice is effective because it is flexible. Justice practitioners should use their experience and their intuition as well.
  • Standardisation requires resources and time for reflection. The experience of Joint-Jurisdictional Wellness Courts in Minnesota shows that a well-resourced organisation can achieve standardisation and develop high quality methods, even if the target group is small and has very specific needs.
  • The example of Bataka Courts suggests that guidelines can also be used in order to standardise adjudication processes.
  • The experience of Bataka Courts demonstrates that guidelines can be used in training modules to further increase the capacity of justice workers, including how their work is embedded in the laws of the state, rules and procedures of the justice system and conforms with international human rights. They can also be used to standardise the adjudication processes.Selection processes for community justice workers can be standardised as well. Experts believe that community justice services work best when the justice workers are chosen by the local communities themselves, especially in the case of a closely-knit community. If communities select or nominate people who they trust the most, they will be more likely to accept the decisions of the community justice workers. This will also increase compliance and help the community justice workers in gaining legitimacy.
  • In order to empower the disadvantaged and to promote equal access to justice for all, programmes may want to ensure that women, the poor and minorities become members of panels and/or are selected as community justice workers.

2.2 Monitoring outcomes

Although community justice services are used frequently and legal needs surveys show they tend to be quite effective in resolving disputes, outcomes of the community justice services have not always been viewed in a positive light. Studies indicate that community justice providers are sometimes not very effective in resolving disputes. Outcomes may also be unfair to certain members of the community, especially the minority and marginalised members. Questions are also raised about the patriarchal nature of existing power structures and bias against women at the community level [9].

NGOs, government agencies or international donors investing in community justice services want to be sure that engagement with community justice services leads to respect for human rights [10], protection of the rights of all members of the community and brings people the outcomes they want from dispute resolution. But how can they ensure the quality of the overall programme improves over time? And how can they avoid that an isolated example of questionable behaviour in one village damages the reputation of a countrywide programme?

Systematically monitoring outcomes is a critical success factor related to these challenges. For each type of dispute, a number of desirable or undesirable outcomes can be identified. Disputants, practitioners and/or community members can be asked to what extent each of the outcomes has been achieved. Quantifying these results helps in highlighting areas where existing justice services are successful and where they are failing to meet people’s needs. Impact data also helps to attract investors looking for measurable returns and social impact. It enables governments who undertake performance-based budgeting to identify service delivery models that are effective in resolving disputes [11].

With the help of experiences shared by the working group members, we have developed the following insights on monitoring the outcomes, noting that few community justice systems have introduced systematic outcome monitoring yet:

  • Service providers need to fully understand the outcomes that people want from the resolution of the justice problem. For example, they need to examine the kind of outcomes that people may want from a family dispute, employment dispute and so on. A successful monitoring of outcomes has been developed by the Joint-Jurisdictional Wellness Courts in Minnesota that address problems related to driving while intoxicated and substance abuse. These courts have monitored restorative justice outcomes in terms of driver licences being reinstated, participants becoming employed or continuing their education, abusive relationships ending, long-term sobriety and reduction in recidivism.
  • User satisfaction with outcomes can be monitored across four dimensions: distributive justice, restorative justice, effective problem resolution and transparency of the outcome (meaning: why this outcome and not another one) [12].
  • A simple starting point to monitor outcomes can be that justice workers who live in proximity of local communities ask people if the interventions that were used to resolve disputes were effective and whether a change in approach is required.
  • To monitor these outcomes, eventually a systematic data collection and analysis team and procedure needs to be established. This process may grow step-by-step from asking a few simple questions to users.
  • User satisfaction surveys can capture the experience of users of the dispute resolution system, in terms of procedural fairness, cost effectiveness, and outcome of the dispute. Similarly, legal needs surveys can also examine if people are generally satisfied with the outcomes offered by community justice services in a country.

2.3 Combining the strengths of informal justice and rights-based dispute resolution

Formal justice systems in lower and middle income countries have been derived from their colonial past, and they have replaced the traditional ways of solving disputes or the informal justice systems [13]. Today, informal justice systems are coming into prominence again, thanks to their dispute resolution methods such as mediation and focus on restoring relationships and harmony in the community. They are seen as successful because they are oriented towards solutions and outcomes that enable people to continue working and living together. A similar trend is present in high income countries where mediation or ombudsman procedures are alternatives to the formal, adversarial procedures operated by courts.

A formal court procedure aims at fair and transparent processes, ensuring equality of arms between the parties, whereas community justice outcomes sometimes have been found to discriminate against women, the poor and marginalised groups. This point also has been raised in relation to mediation in high income countries. A critical success factor for community justice services is to combine the strengths of the two types of procedures. Protection of fundamental rights that the formal justice system is designed to protect may be successfully combined with restorative ways of resolving disputes that community justice services promote.

The Working Group members began by asking firstly why such an integration is needed and if it is, what could be the nature of such an integration? To answer the question of how to integrate formal and informal justice systems, we developed the following insights using experiences of working group members:

  • An example of integration between the formal and informal justice systems is the system of judicial facilitadores that operates in eight countries in Latin America. The programme, funded by the Organisation of American States, trains volunteers from local communities in resolving disputes using mediation and conciliation. Facilitators show the settlements they achieved to judges and obtain their feedback. The volunteers discuss progress on operational plans in monthly meetings with local judges who supervise the programme [14].
  • Another link between formal and informal justice can exist through a system of appeals. In other words, if disputing parties are not satisfied with the outcome delivered by the informal justice system, they can approach the formal justice system for further action. Many informal justice systems have set up appeal mechanisms. For example, Local Council Courts in Uganda allow disputing parties to appeal decisions in the court of the chief magistrate [15].
  • In the context of low-income countries, functionaries of the formal justice system may want to consider keeping aside the formal dress code of robes, gowns and wigs as well as the elaborate courtrooms when collaborating with community justice workers. This is because people, and also community justice workers, can find it intimidating to interact with government officials who have received formal education and training and are higher above in the hierarchy in the justice system. In absence of markers such as the formal dress code, and courtroom set up and infrastructure, the functionaries of the formal justice system are likely to look more approachable.
  • Judicial professionals from the district or similar levels of the formal legal machinery can participate alongside the community leaders to resolve disputes in a more overseeing role. The community leaders can simplify proceedings to suit the needs of local communities while the judiciary can ensure disputes are resolved in a fair and transparent manner. People who cannot travel long distances to visit a court can benefit from the participation of such a neutral third party instead of community members who may have biases. This may be a way to achieve protection of fundamental rights that the law guarantees.

2.4 Making community justice services affordable and financially sustainable

Resolving disputes through customary justice in rural communities is generally affordable in terms of transaction costs. The fees remain minimal, operating procedures are flexible and community gathering places are accessible for people [16].

Many community justice services in high income countries rely on the work of volunteers [17]. In low-income countries, they are funded by grants from international donors, local nonprofits or sometimes through village-level contributions as in the case of Bataka Courts. This leads to grant and donor dependence, not allowing a scalable and sustainable service to emerge. Those funded by the government do not receive adequate funds so their infrastructure and service delivery is affected [18].

The system may only exist in some rural communities, or be piloted in one part of a city, not reaching countrywide coverage. In order to achieve consistent quality, guidelines and operational working methods need to be developed and improved. Training is needed. Monitoring outcomes for each justice problem that is being addressed requires interaction between users and practitioners. Aggregating outcome data on a programme level requires a registration system and analysis.

With the help of experiences shared by experts, we recommend the following insights and approaches to make the community justice services affordable and sustainable:

  • Making the case for funding of community justice services is important. Justice is underfunded in absolute and relative terms (compared to other sectors) [19]. Making the case includes demonstrating and improving the return on investment for community justice services, as well as improving delivery mechanisms [20]
  • Along with national public and donor based funding, community justice services can make use of user contributions, contributions by NGOs in the community or funding through local taxes. These services tend to make extensive use of volunteers and free public resources such as school buildings and local government offices.
  • Development finance institutions and impact investors can be a temporary source of revenue for setting up a more sophisticated system of community justice services. To attract this kind of capital, community justice services need to monitor outcomes with the help of indicators.
  • For sustainable funding, community justice services should become a government-provided or government-supported service, with a reliable stream of contributions by users or communities. Ministries of justice must then have a separate line for community justice services. In the case of the Sierra Leone Legal Aid Board, the government has funded the services substantially at 9% of the justice budget, which is much higher than most of the OECD countries that offer community justice services. However, it must be noted that such high levels of funding are not sustainable. So it becomes important to utilise other sources of funding such as user contributions and volunteers who can help in subsidising the cost of operating the community justice service.Offering efficient community justice services at a national level can lead to very substantial economies of scale. Estimates from experience of Sierra Leone Legal Aid Board indicate that unit costs in low-income contexts can be cut from $500 to just $25 per client, a 25-fold reduction [21].
  • The resources needed by community justice services are small compared to the ones needed by courts and lawyer services. A partial shift in funding from the formal to informal justice systems could help in improving services delivered by community justice workers [22].

2.5 Building scale from the ground up

There are many barriers to scale the community justice practices. Only a few countries succeeded in successfully scaling community dispute resolution mechanisms to a level where they resolve 20% or more of justice problems. The models mentioned in section 1 each have their own trajectory towards achieving regional or national coverage. 

Scaling should occur by developing a model that can be replicated and then piloted to test effectiveness and sustainability. Using experiences of experts, we have developed the following insights on scaling:

  • Scaling will not be effective if the goal also seeks to preserve uniqueness in practices followed for dispute resolution at the community level, which may differ depending on the context, culture and geography [23]. HiiL’s case studies on Houses of Justice in Colombia and Local Council Courts in Uganda reveal that working methods remained ad hoc. The local justice workers or members of the community justice service adopted a general model of service provision to what suited them or to the context. What results is a variety of different local services, with uncertain results and impact overall.
  • The origin of the community justice service itself may limit its potential to scale [24]. In Ethiopia for example, different informal justice services cover different states, depending on which tribe has the majority. In the Sahel region, each local tribe may have its own way of settling disputes, which may not be acceptable to another tribe in the same region [25].
  • Some approaches have been tried and failed. Mobile courts that go to the community level in Bogota, Columbia for example, are popular. But in terms of costs per case resolved and sustainability, mobile courts are not attractive. We have not seen any other country where mobile courts exist as a sustainable model for a region or a country.
  • Existing structures can be used and strengthened. Locally chosen community leaders may work in a country like Uganda where communities already bring certain issues to them. In Serbia, there are fewer identifiable structures and places that people would choose to visit. In some countries administrative bodies exist at the local level that already deal with disputes. Elected representatives may be drivers of change, but also be part of power structures that compete with neutral, third parties delivering community justice.
  • The role of national organisations such as the Legal Aid Board in Sierra Leone can be important in achieving scale as well.
  • If we start by thinking “How to achieve scale?” we will realise that we need something that is more transformational. Setting ambitious goals at the outset is important - even if providing justice through community mechanisms at scale will take another 20 years is an ongoing progress. The routine project-thinking of “How are we going to solve this problem in two years?” may not help.

3. Outlook

Community justice services or informal justice are an indispensable element of a justice system that provide equal access to justice for all. Although informal justice processes come in many different forms, they tend to have a participatory nature, strive for consensus, focus on social harmony and promote restorative (conciliatory) solutions. They are similar to mediation, but can also have elements of adjudication. Another advantage of informal justice processes or community justice services is that the community can help to ensure compliance of decisions. 

Building on the advantages of informal justice and alternative dispute resolution processes, many countries have developed programmes that have the ambition to scale towards the country level. This comes with increased standardisation and formalisation of the services, for which we found a number of models that are being used internationally.  

We expect standardising and outcome monitoring to be used increasingly, so that community justice providers can ensure quality and protect women, the poor and minorities. Policymakers can build the capacity of community justice workers with the help of guidelines that describe step-by-step processes for resolving justice problems.

When considering external interventions in community justice services, policymakers are now likely to be oriented towards strengthening the fabric of the community, stimulating the parties to conflicts to identify outcomes that are effective for their relationships, whilst promoting dialogue about improving relationship structures.

We expect community justice services to grow, because formal justice systems cannot serve people at sufficient scale for all their pressing justice problems. Community justice services have to overcome barriers to growth, by finding sustainable revenue models, by developing an oversight and monitoring system connected to the formal justice institutions, and securing a long term commitment from national governments or their donors.

4. Authors

This policy brief was written by Kanan Dhru (Justice Innovation Advisor), Manasi Nikam (Knowledge Management Officer) and Prof Dr Maurits Barendrecht (Research Director) at HiiL

[1] Wojkowska, E. (2004). Doing Justice: How informal justice systems can contribute, UNDP;  Ubink J., (2011). Customary justice: perspectives on legal empowerment, legal and governance reform: Lessons learned, International Development Law Organisation; Coburn, N. (2013). Informal justice and the international community in Afghanistan, United States Institutes of Peace; Coyle, D. and Dalrymple, S. (2011). Snapshots of informal justice provision in Kaski, Panchthar and Dhanusha Districts, Nepal.

[2] Harper, E., (2021). Customary Justice: From Program Design to Impact Evaluation.

[3] HiiL, (2012). Towards basic justice care for everyone: Challenges and promising approaches.

[4] Ibid.

[5] Röder, T. J. (2012). Informal justice systems: challenges and perspectives. Innovations in Rule of Law, 58; Conteh et al., (2012). The Costs and Benefits of Community-based Justice in Sierra Leone, Technical Report; Chirayath, L., Sage, C., & Woolcock, M. (2005). Customary law and policy reform: Engaging with the plurality of justice systems.

[6] HiiL (n.d). Community Justice Services, Last accessed on 22/02/2022

[7] Botero, J., (2021). Case study on Houses of Justice in ‘Delivering Justice, Rigorously’.

[8] HiiL, (2021). Delivering Justice, Rigorously.

[9] International Development Law Organisation, (2019). Navigating complex pathways to justice: Women and customary and informal justice systems.

[10] UN Women, Unicef, UNDP Publication, (2017). Informal Justice Systems, Charting a course for human-rights based engagement – A summary.

[11] HiiL, (2020). Charging for Justice: SDG 16 Trend Report 2020.

[12] HiiL, (2021). Delivering Justice, Rigorously.

[13] Botero, J.C, (2013). The three faces of justice: Legal traditions, legal transplants and customary justice in a multicultural world (thesis), Georgetown University.

[14] Quintanilla, E. (2004). Support for the Administration of Justice in Nicaraguaó: The Rural Judicial Facilitators Program. World Bank.

[15] HiiL, (2021). Case Study on Local Council Courts in Uganda.

[16] Harper, E., (2021). Customary justice: From programme design to impact evaluation, International Development Law Organisation.

[17] Victoria State Government, Australia. Justice and Community Safety. Last accessed on 20 March 2022; Magistrates Association, UK. Last accessed on 20 March 2022.

[18] HiiL, (2021). Case Study on Local Council Courts in Uganda.

[19] Manuel, M. and Manuel, C., (2021). People-centred justice for all: A route to scaling up access to justice advice and assistance in low-income countries

[20] Ibid.

[21] Ibid.

[22] Knake, R. N. (2018). The Legal Monopoly, by Renee Newman Knake,

[23] International Development Law Organisation, (2019). Practitioner Brief: Navigating complex pathways to justice: engagement with customary and informal justice systems.

[24] Harper, E. (2021). The enduring utility of customary justice in fragile and post-conflict states: why development actors need to stop searching for magic bullets and solve the political economy and human rights challenges associated with justice programming. The Journal of Legal Pluralism and Unofficial Law, 53(3), 342-355.

[25] HiiL, (n.d). Community Justice Services, HiiL Justice Dashboard, Last accessed on 22/02/2022

Table of Contents

Cases:

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Case: Tribal-State Joint Jurisdiction Wellness Courts

CASE

Tribal-State Joint Jurisdiction Wellness Courts

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Photo by Wellnesscourts
Community Justice Services – Policy Brief / Case: Tribal-State Joint Jurisdiction Wellness Courts
The above reproduced Joint Powers Agreement between the Leech Lake Tribal Court and the Cass County District Court is reproduced from Cass County Leech Lake Band of Ojibwe Wellness Court: From Common Goals to Common Ground Presentation (last accessed on 7 February 2022).

Key fact and figures

Year of establishment
2006
Scope of service
Wellness court that serves as diversion for driving while intoxicated cases
Geographical scope
Cass County, Minnesota, United States of America
Legal entity
Tribal Court and State Court
Type of justice problems addressed
Public Safety
Regulatory embeddedness
Memorandum of Understanding between the courts. (For the first year, it was based on a “handshake” between the courts.) Both courts are exercising jurisdiction together.
Costs of services for citizens (average and range)
For every taxpayer dollar invested in the program, there is a $1.13 return after 5 years.” [1]
Average processing time
About 2 years

Background and History [2]

In 2006, the Leech Lake Band of Ojibwe Tribal Court and the Cass County District Court of the state of Minnesota, with the Cass County Probation Department and Minnesota Department of Corrections, entered into an agreement to create the multi-jurisdictional Cass County and Leech Lake Band of Ojibwe Wellness Court. [3] The first of its kind in the United States, the specialized wellness court’s jurisdiction is jointly shared by both the Tribe and the State and developed in response to the number of repeat-Driving While Intoxicated (DWI) offenders who were also members of the Leech Lake Band of Ojibwe Tribe.

Notably, these cases – which are criminal in nature – were previously only handled by the state court because tribes in Minnesota are generally without criminal jurisdiction. [4] But through this post-conviction, post-sentencing DWI court – available to both tribal members and non-members within the jurisdiction of Cass County– tribal and state court judges jointly preside over proceedings that focus on improving the wellness of the individual coming before them rather than meting out punishment.  This voluntary program is open to individuals who are 18 years of age or older, have committed multiple DWI offenses, and have been determined to be chemically dependent.  In addition, the program screens participants to ensure that they are physically and mentally willing and able to participate in the program and meet its conditions, such as willing to: undergo treatment, seek employment and/or pursue their education, and accept court sanctions for failure to follow through with the court’s expectations. [5]

Individuals who participate in the program embark on a journey over two years that encapsulates a people-centered approach to justice: 

  • Phase 1 – Treatment Stage (3 months) – Participants undergo a chemical assessment and treatment program and attend court sessions every two weeks.
  • Phase 2 – – Transition Stage (minimum of 6 months) – Participants apply the recovery skills they learn to sustain sobriety and maintain individualized case plan and attend court sessions every two weeks.
  • Phase 3 – Living Well Stage (minimum of 12 months for felony convictions and 6 months for gross misdemeanor convictions) –Participants continue to abstain and maintain recovery and attend court sessions monthly. [6]

The mission of the Wellness Court is to reduce the number of repeat substance dependent and DWI offenders by using a coordinated team approach. [7] This involves the Tribal Court Judge, the County District Judge, the prosecutor, the defense attorney, law enforcement personnel, social services workers, probation and treatment specialists, who work together to break the cycle of substance abuse, addiction, and crime among selected non-violent offenders. [8]

Critically, court sessions are held concurrently in the Tribal and District courtrooms and connected by interactive videoconferencing. This gives clients the option of appearing in whichever courtroom is more convenient for them. Indeed, this close collaboration is evidenced by the fact the Tribe’s flag appears in the District courtroom – a direct result of this program.

The joint jurisdiction has infused the Tribe’s culture into the judicial process, which in turn has meant that tribal members who participate in the program can reconnect with and learn about their culture and traditions. Tribal member participants who were previously disconnected from their Anishinaabe traditions are reconnecting with their culture to great success.  Spiritual healers have conducted naming ceremonies, sweat lodges, and talking circles all to further the healing of the participants.  The partnership between the two courts and two sovereigns – the Tribe and the State – has also been credited with helping to heal the two separate communities.

Thanks to the success of the original court, the Leech Lake Band of Ojibwe Tribe has stood up additional joint-jurisdiction courts and programs:

  • In 2009, a Wellness Court for individuals charged with controlled substances was established with the Itasca County District Court.
  • In 2010, a related program was launched for juvenile delinquency cases for tribal youths who are eligible for diversion. This program includes traditional practices such as talking circles to serve the needs of the youth.
  • In 2019, a pilot family drug court for cases involving child protection issues (in either tribal or state court) was launched for tribal members and non-Indians living on the reservation.

Outcomes

The Tribal Law and Policy Institute has reported positive outcomes of both the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court such as: families being reunited, driver’s licenses being reinstated, participants becoming employed or continuing their education, and abusive relationships ending. [9]  In addition, participants have tens of thousands of documented days of sobriety among them and have been found to be significantly less likely to reoffend than non-participants.  While the average rate of recidivism in the state of Minnesota stands at 60% or more, the rate of recidivism for participants of the Cass County & Leech Lake Band of Ojibwe Wellness Court and the Itasca County & Leech Lake Band of Ojibwe Wellness Court is 6.6% and 16%, respectively. [10]

In a 2014 study of the Cass County & Leech Lake Band of Ojibwe Wellness Court, researchers conducted an analysis and found that, over time, the program has the potential to result in significant cost savings and a return on its investment. [11] It found:

"The program costs $19,710 per participant. The benefit due to significantly reduced recidivism for program participants over the 2 years…came to $8,946. If these cost savings are projected to 3 more years (to 5 years), they could amount to $22,365 per participant, resulting in a cost-benefit ratio of 1:1.13. That is, for every taxpayer dollar invested in the program, there is a $1.13 return after 5 years. [12]."

Lessons learnt

In 2009, the Center for Court Innovation interviewed Judge Korey Wahwassuck, who co-launched the court when she was a tribal judge.[13]  In that interview, she described where the idea of the wellness court originated:

"In late 2005, Judge John Smith from the Cass County District Court and Reno Wells, who is the director of probation for Cass County, approached the chairman of Leech Lake Tribal Council to get a DWI court started. At the time Cass County was one of the most deadly counties for drunk-driving fatalities in the state. People were just coming back through that revolving door. A lot of the people who kept coming back were our tribal members. Cass County wasn’t having any success addressing their underlying problems. There was a general frustration among tribal members, not only because people were coming back through the system, but because there was a feeling that the state courts weren’t helping. The county was looking at starting a drug court, so Judge Smith approached the Band and said, “We’re going to do this and we can’t be successful unless we have your help. Will you partner with us?” This was one of those “right time, right place” sort of things, because I happened to be in the Tribal Council offices that day. It was before I took the bench; I was still a tribal attorney. As soon as the judge and the probation director left, the question was, “So what do they want to do to us now?” There was huge mistrust of the state system. It all gets down to that lack of understanding. I told the chairman that I thought it was a good idea because the drug court model works and it’s a great way for the Leech Lake Band of Ojibwe to start having a say in what happens to tribal members’ cases. Minnesota is a Public Law 280 state, and the Band has not yet enacted any criminal codes of its own, so all DWI cases are handled in the state court. Before we started our partnership, the Band had nothing to do with these cases. Basically the Band sat around on the sidelines and looked at bad results and continued to dislike the state system."

Judge Wahwassuck went on to explain that when both courts decided to move forward together it was originally done with a “handshake” and goodwill.[14]  While the Tribal Council passed a resolution in support of forming the joint court, they did not enter into a formal agreement for the first year. [15]  And importantly, the joint powers agreement (reproduced at the front of the case study) that was signed in 2007 relied on the simple premise that both the Tribe and the County would exercise their jurisdictions jointly, on the cases that allowed them to, and towards a common set of goals. [16]

Judge Wahwassuck also explained how the model grew to a second wellness court with neighboring Itasca County in 2007.  The Itasca County Wellness Court invited the Tribe to join a planning team from their activities and from there, their collaboration was born.[17]  Like the Wellness Court with Cass County, the Wellness Court with Itasca County operates with both the tribal and state judges jointly take taking the bench – each exercising their own jurisdiction – to work with both tribal and non-tribal members who pass through their program. [18]

She shared that the joint-jurisdictional wellness court has inspired other tribal-state collaborations within the state of Minnesota, while acknowledging at the same time that some tribes remain warry of sharing jurisdiction with state courts.[19]  But she explained that the these models can offer an important intermediate step for tribes still building their courts’ systems so that one day they can handle these case on their own. [20]

The success of the court has brought national recognition and interest.  Both the Cass County & Leech Lake Band of Ojibwe and Itasca County & Leech Lake Band of Ojibwe wellness courts  have won several awards, including the Harvard Honoring Nations Award, the National Association of Drug Court Professionals Cultural Proficiency Courage Award, and the National Criminal Justice Association Outstanding Tribal Criminal Justice Award. [21]

But more importantly, the courts are valued by the community they serve with successes continuing to be logged. [22]  Individuals passing through these programs can experience better health outcomes, employment prospects, opportunities for stable housing, and – critically – family relationships. [23]

Authors

This case has been prepared by Maha Jweied, Pathfinders for Justice Advisor Fellow at NYU’s Center on International Cooperation

[1] Id.

[2] Some of the background and history of this case study is adapted from Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014).  The report also provides an overview of indigenous traditional practices in the United States.

[3] A fuller history of the development of this court can be found at Korey Wahwassuck, The New Face of Justice: Joint Tribal-State Jurisdiction, 47 Washburn L.J. 733 (2008). The Memorandum of Understanding that created the multi-jurisdictional Cass County and Leech Lake Bank of Ojibwe Wellness Court can be found at http://ccllwellnesscourt.files.wordpress.com/2010/10/memorandum-of-understanding.pdf

[4] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

[5] .S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research.

[6] Id.

[7] Maha Jweied, U.S. Department of Justice & U.S. Department of the Interior Report, Expert Working Group: Native American Traditional Justice Practices (September 2014); see also https://wellnesscourts.org/files/Joint%20Jurisdiction%20-%20Apr_%202019.pdf

[8] See Cass County and Leech Lake Bank of Ojibwe Wellness Court, General Information, http://ccllwellnesscourt.wordpress.com/general-info/. A flowchart of how the process works can be found by visiting: http://ccllwellnesscourt.files.wordpress.com/2010/10/general-overview-flowchart.pdf.

[9] Lauren van Schilfgaarde, Tribal Law and Policy Institute, Joint Jurisdiction Wellness Courts Presentation (2019).

[10] Id.

[11] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016), citing Zil, Charlene E., Mark S. Waller, Adrian J. Johnson, Paige M. Harrison, and Shannon M. Carey. 2014. Cass County/Leech Lake Band of Ojibwe Wellness Court Walker, MN: Process, Outcome, and Evaluation Report. Portland, Ore.: NPC Research. (Fact Sheet available here.)

[12] U.S. Department of Justice, National Institute for Justice, Program Profile: Cass County/Leech Lake Band of Ojibwe Wellness Court (Walker, MN) (2016).

[13] Aaron Arnold, Interview: Korey Wahwassuck, Associate Judge, Leech Lake Band of Ojibwe Tribal Court, Cass Lake, Minnesota, 2 Journal of Court Innovation 405 (2009).

[14] Id.

[15] Id.

[16] Id.

[17] Id.

[18] Id.

[19] Id.

[20] Id.

[21] Center for Court Innovation Tribal Justice Exchange, Tribal Access to Justice Innovation, Leech Lake Band of Ojibwe Joint Jurisdiction Healing to Wellness Courts, available at: http://www.tribaljustice.org/places/specialized-court-projects/leech-lake-band-of-ojibwe-joint-jurisdiction-healing-to-wellness-courts/.

[22] Id.

[23] Id.

Kistemaker, L. (2021). Rechtwijzer and Uitelkaar. nl. Dutch Experiences with ODR for Divorce. Family Court Review, 59(2), 232-243.

Table of Contents

Community Justice Services - Policy brief
1. Justice close to home: A gamechanger?
2. Critical Success Factors
3. Outlook

Cases:

Posted on

Case: Houses of Justice

CASE

Houses of Justice

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Photo by Casa de Justicia
Community Justice Services – Policy Brief / Case: Houses of Justice

Key fact and figures

Year of establishment
1995
Scope of service/ Type of justice problems addressed
Family, neighbour, crime, money, public services
Geographical scope
Country-wide (Colombia) – partial coverage
Legal entity
Part of the government – private service providers also included
Regulatory embeddedness
Part of the government
Number of affiliated staff members
Varies per house, depending on services offered
Number of cases resolved
+20 million
Citizen satisfaction
High satisfaction with access, less satisfaction with actual solution of problems
Citizen impact reporting score
Costs of services for citizens (average and range)
none
Average processing time
From days to a few months, depending on case
Annual Budget
Varies per house, depending on services offered

Introduction

The United States Agency for International Development (USAID) supported several programmes in Latin America and the Caribbean region to promote rule of law and democracy in the last decade of the 20th century.  One such programme was the Casas de Justicia program that was implemented by the Colombian Government, with support from USAID, in 1995. Casa de Justicia is a multi-door, legal information and community dispute resolution centre with an objective of meeting justice needs of low-income communities. It was launched as a pilot project in two large low-income neighborhoods in Bogotá (Ciudad Bolívar) and Cali (Aguablanca).  Over the years, the program expanded into 158 venues in 132 municipalities throughout the country. The main objectives of the programme are:

  • To divert cases away from the judicial system by providing alternative dispute resolution systems (ADR) through multi-door courthouses.
  • To reduce conflicts in society by enhancing access to justice for marginalized communities.

Multiple reasons make this program interesting for this issue brief: (i) Its long duration (25+ years). (ii) The program’s large scale in terms of both geographical reach and number of users—between 70 and 80% of the general public in Colombia knows of the program (La Rota, p. 174; DeJusticia, P. 78). (iii) Its focus on underserved populations—Casas de Justicia are located mostly in low-income neighbourhoods throughout the country. (iv) The program’s diverse settings of implementation (given large socio-economic and cultural differences across Colombian regions, as well as its multiple justice delivery goals and available services across cities, which enable comparison of service models within one general framework. And finally, (v) the availability of data about the program.

Program description

The World Bank’s comprehensive review of access to justice in Colombia describes the program as follows (Varela and Pearsons, p. 175): 

The casas de justicia are multiagency venues that provide information on rights, legal advice, and conflict resolution services. A variety of conciliation options are offered, together with administrative and some formal justice services (Decree 1447 of 2000). Since 1995, the Ministry of the Interior and Justice, with support from USAID, has constructed a system of casas de justicia comprising some 81 houses [158 as of Oct. 2020]. Originally designed for cities with populations in excess of 100,000, casas de justicia provide rapid solutions to everyday interpersonal disputes and neighborhood conflicts. Other issues they address include personal identity verification, domestic and sexual violence, and criminal cases of lesser gravity. Services for displaced populations are also provided, and matters of institutional abuse are considered.

The purpose of the casas de justicia is to facilitate “one-stop” access to legal help for poor people in marginalized or conflictive neighborhoods, and to promote peaceful-dispute resolution and social cohesion. Although they vary in design, casas de justicia incorporate local prosecutors, public defenders, municipal human rights officers, municipal neighborhood affairs units, comisarías de familia, legal aid specialists, social workers, and psychologists in a variety of conciliation services. Many justice houses also include other entities such as nongovernmental women’s organizations, youth mediation services, children’s playrooms, and university law clinics, and personnel such as forensic doctors, community police officers, and representatives for ethnic-communities.

Casas de justicia eliminate or reduce common access barriers and bring justice closer to the people, both physically and culturally. Procedures are free of charge, easy to arrange, and informal. Legal representation (having a lawyer present) is not required. Disputes are resolved in a timely manner. However, the sustainability of the houses is dependent on the continued participation of various institutions from the justice sector, some of which have insufficient staff to assign to small town projects; municipal political will to assume justice and conflict resolution commitments; and municipal budgets for justice services. Unfortunately, all of these factors are compounded when justice houses are located in small, war-torn areas.”

Financing strategy

Developing a sustainable financial model is essential to maintain consistency in the quality of services delivered. Casa de Justicia receives funds from several channels, including national and local governmental entities in Colombia. It has secured partnerships with the legal clinics of local universities and local chambers of commerce, to provide in-site conciliation and legal advice services to users. Municipalities that host the houses of justice are also required to contribute to it but evidence indicates that they do not always prioritise it. 

Similarly, various governmental agencies that implement the programme participate in it voluntarily. As a result, there is a lack of consistency in their contributions to the programme. This leads to situations in which, as one of the officers involved told Botero, “if there is coffee one day, sugar may be missing” (figuratively speaking).  Since the primary target of the Houses of Justice are marginalized communities, all services are provided free-of-charge—user contributions are not present. 

Despite securing stable public-private partnerships and receiving support from bilateral aid agencies, Casas de Justicia faces a shortfall in funds due to inconsistency in municipal and administrative support. 

Monitoring outcomes and implementing evidence-based solutions

Evidence indicates that Casas de Justicia has not used outcome monitoring to improve the interventions of the programme as a whole, nor introduced evidence-based interventions. Organisations such as DeJusticia, USAID, Ministerio de Justicia and Colprensa have conducted assessments of the programme and there is some anecdotal evidence and general surveys on user satisfaction. However, multiple studies (Casas de Justicia de Medellin; DeJusticia; USAID; Programa Nacional de Casas de Justicia y Convivencia Ciudadana) indicate that the programme’s information system is deficient and not generally used. Each house captures data on cases coming in, but very little information is available on whether disputes were actually solved.

The lack of proper outcome monitoring prevents evidence-based adjustment of services—since neither the houses nor the individual agencies regularly follow situations of conflict over time, they do not know whether, how and to what extent, a particular justice situation evolves into a downward spiral of conflict that ultimately leads to violence. Moreover, the weaknesses that the existing studies identified have not been addressed.

The programme has also remained essentially unchanged since its formalization under Decree 1477 of 2000. Instead of basing decisions on careful, evidence-based determination of needs and results in the community, decisions on resource allocation, prioritization of cases, and expansion and reduction of services (through the construction of new houses or through adding or removing agencies involved in existing ones), are made on the basis of purely bureaucratic considerations or on the good intentions of government officers (DeJusticia; Lina Buchely et al).

Impact

In terms of dispute resolution rate, a few studies suggest that about 50% of disputes are resolved at the Casas de Justicia. Comparing the performance of the programme to that of the alternative – the formal court system – anecdotal evidence and general surveys on user satisfaction suggest that Casas de Justicia is generally regarded as better. The program’s informal approach (without the need for a lawyer) makes it generally faster than the court system, and in those Houses where there are courts (e.g., small claims courts at Ciudad Bolivar), some evidence suggests that proceedings are handled more efficiently and speedily than in regular courts.  Some studies have found the program’s significant influence on shaping social representations of justice among target communities, with meaningful impacts on dispute resolution practices (Navarro Carrascal and Diafeiria). 

Anecdotal evidence collected by Botero in several houses across the country, suggest that while some users left the house with a sense of having received an answer to their needs, others felt that the authorities “did more to confuse them than to actually help them”. Even so, it is difficult to ascertain the programme’s impact in a holistic way, given the absence of a proper outcome monitoring system and weaknesses in the programme’s  existing data collection and analysis system. 

Furthermore, the uneven participation among diverse agencies across houses around the country and unequal commitment from local authorities, makes it extremely difficult to assess whether existing data on justice delivery at the houses of justice are nothing more than “people listened to” (or case files moved from one desk to the other without real impact on people’s lives), as Bucheli, Solano and Recalde suggest, or whether these figures effectively represent over 20 million justice needs actually met, as the Ministry of Justice claims.  

Evidence on the program’s effectiveness in rural areas remains disputed. A significant percentage of violence and crime in Colombia takes place in rural settings. Not only the drug and guerrilla conflicts are overwhelmingly rural, but according to Colombian´s National Police (2019), many crimes are also more prevalent in rural areas, including burglary and kidnappings. It is unclear whether the gentle-hand approach to justice of the houses of justice model (which is largely centered around ADR options) is effective to address the most pressing justice needs of the rural population. 

The capacity and effectiveness of administrative agencies and procedures to resolve disputes in rural setting, where the State presence in Colombia has been traditionally weak (García Villegas), is also limited—dispute resolution services in large segments of the country have been effectively delivered for decades by guerrilla and paramilitary groups. Casas de Justicia does not seem a viable option to address the most pressing injustice that people suffer in rural settings.   

Finally, one highly popular component of the program’s outreach efforts is the mobile Houses of Justice, where the various participating institutions deliver justice off site, at various neighbourhoods or in rural areas. Several experts consulted by Botero consider this kind of program is extremely difficult to sustain under the current model and level of resources, and thus not effective. One expert called it “justicia golondrina” (swallow justice), after the bird that only comes from time to time, without leaving any meaningful footprint.  Moreover, some suggest that it may be counterproductive, as it creates unreasonable expectations of access among the public that turn into frustration for lack of follow up. 

Scaling

While assessments of the program diverge, the weight of the evidence indicates that the program has been generally effective in addressing the needs of the most vulnerable urban population. Overall, the most prevalent use of the Casas de Justicia program according to DeJusticia, were in family disputes, criminal matters, document petitions, conflicts related to leases and public utilities, employment disputes among others (DeJusticia, p. 54).  

According to the programme’s national director at the Ministry of Justice (interview, October 8, 2020), with 158 venues in 132 municipalities throughout the country, the program has reached about 70% of its target population. Given that about three quarters of Colombians live in these cities, in terms of reach, the program has been successful. According to the Colombian Ministry of Justice, central authority in charge of the general direction of the Casas de Justicia program, 15 to 20 million cases have been handled by this multi-door, community dispute resolution centers, from its foundation in 1995(3). (DeJusticia, p. 77-78; Ministerio de Justicia, 2013). 

According to the Ministry of Justice, close to 50% of all petitions for conciliation or redress at the houses of justice during the year 2013, were filed by people belonging to the poorest sextile of the Colombian population (“estrato 1”), and another 45% by people belonging to the second and third lowest sextile (Dejusticia, p. 55-56), and this trend remains generally unchanged until today. This means that the program has overwhelmingly served the low- and middle-income urban population, as it was originally intended. 

A critical element of this analysis is the justice delivery gap in the Casas de Justicia program: While the numbers vary across sources, it appears that the program is widely known and highly popular among the general public, but not really widely used. (Awareness 70-80% – Overall use 2%. Use among the poor: 10%.).  Moreover, according to DeJusticia and La Rota, Lalinde and Upimny (2013, p. 107), by 2013 only 1.8% of the cases handled by any sort of administrative authorities were actually resolved by the Casas de Justicia program. This can be attributed to the lack of consistency of service delivery (independence of political winds at the national, regional and municipal level) and issues of financial sustainability. As a result, critics of the programme call it a highly institutionalized placebo which seeks to defuse neighbour grievances among marginalized communities rather than to actually resolve them (Bucheli, Solano and Recalde).

Integration with the formal justice system

Experts and researchers in the justice sector are increasingly recognising the importance of integrating the formal and informal justice system. In the case of Casa de Justicia, participation of the formal judicial branch remains relatively marginal throughout the country today. Many of the Houses include crime reporting desks of the national prosecutor’s office (Fiscalia General de la Nacion). While some of them (e.g., Ciudad Bolivar) include two small claims courts as part of the services offered, in most of Casas de Justicia the most common type of state agencies present are administrative agencies, mostly at the municipal level (e.g., the office of the municipal ombudsman; the Police Inspector or the community development office). Agencies at the national level such as work and labour inspectors from the Ministry of labor, a delegate of the National Registry office or the Instituto Colombiano de Bienestar Familiar (minors defence agency), are also commonly present. (Ministry of Justice, 2012, p. 12)(6). 

Enabling environment

Casa de Justicia, being a government-led programme, received significant support from regulatory and financial systems at the time of its formation. They have become the default avenue for handling conflicts at low-income neighbourhoods throughout the country’s urban centres. However, government-led status has not safeguarded the program from shortfalls in funding and lack of inter-agency coordination. Interviews with senior officials and experts suggest that Casas de Justicia needs more support from regulatory systems in terms of planning and inter-agency coordination to improve service delivery and more funds and logistical support from the administration to expand into rural areas. 

Critical success factors

  • Interagency coordination at the national and local levels of government in Colombia.
  • Funding collaboration and coordination among different levels of government and branches of government
  • Consistent funding from bilateral aid agencies (USAID).
  • Collaboration with and participation of private entities in the programme, including legal clinics of law schools and local chambers of commerce, which offer ADR referral services at the houses.

Lessons learnt

Lessons learnt from the experience of setting up Uitelkaar are:

  • Deficient service delivery coordination at the houses of justice. While the Houses of Justice represent a major step forward in terms of interagency service delivery collaboration among different levels and branches of government, and with the private sector, they still show some deficiencies. Individual officers from multiple agencies serve under the same roof, but they have little incentive to coordinate among them. Each employee has a different line of command outside the House—the House coordinator is not the boss of any of them. The House coordinator lacks authority to mandate coordination or to punish service delivery failure. For instance, there is virtually nothing the House coordinator can do if one day one of the officers simply do not show up at work at the House because this person was temporarily assigned by his/her agency’s boss to do something else that day or week (or even month).
  • Deficient inter-agency coordination at the policy level. Inter-agency coordination mechanisms created by the basic law governing the program (Decree 1477 of 2000), have systematically failed over the past two decades. While coordination is supposed to happen through regular inter-agency meetings at various levels (national, regional, local, and at individual houses), these meetings are extremely rare (the top-level coordination meeting has not taken place is several years), and there are no consequences for the agencies or for the individual officers for this deficiency.
  • Employee turnover. High employee turnover makes capacity training and coordination less efficient and often frustrating to other officers involved.
  • Barriers for participation of private entities in the program: Other than partnerships with law students and local chambers of commerce, current regulations do not really foster other types of collaboration of the private sector in its development.

Methodology

This paper is based on:  Botero, Juan Carlos, “CASE STUDY – Casas de Justicia in Colombia. December 2020, which is available at: https://dashboard.hiil.org/trend-report-2021-delivering-justice/case-study-casas-de-justicia-colombia/ 

Botero’s study was based on extensive literature review, semi-structured interviews with government officers and users, and field visits to several houses of justice.

Authors

This case has been developed by Juan Botero with suggestions from the HiiL team.

Table of Contents

Community Justice Services - Policy brief
1. Justice close to home: A gamechanger?
2. Critical Success Factors
3. Outlook

Cases:

Posted on

Case: Bataka Court Model

CASE

Bataka Court Model

Download
Photo by Bataka Court

Community Justice Services – Policy Brief / Case: Bataka Court Model

Key fact and figures

Year of establishment
2014
Scope of service
Civil justice problems and petty crime
Geographical scope
2 districts in Uganda
Legal entity
Privately run foundation
Type of justice problems addressed:
Civil justice problems including disputes related to land, family, neighbours and petty crime
Regulatory embeddedness
Private
Costs of services for citizens (average and range)
Free, no cost

Introduction

Bataka Courts literally translated as ‘Ordinary Citizens Courts’ is a community justice service based in Kagadi district of Uganda. It aims to increase access to justice for the poor by enabling local leaders to deliver justice services. It was conceptualised in the year 2012 with the support from DFID and ODI when these institutions were looking for innovative models that can provide access to justice for the poor in low income countries. It was implemented by World Voices Uganda with support of Overseas Development Institute and Development Research and Training, a non-for-profit organisation based in Uganda in 2014. 

Bataka Courts addresses civil justice problems such as disputes related to land, family, neighbours and petty crime [1].

The justice gap in Uganda is sizable. The Justice Needs and Satisfaction Survey 2019 conducted by HiiL indicated that about 84% of the people in Uganda experienced a legal problem in the past four years [2]. Additionally, access to lawyers for Ugandans is also limited. Since 85% of lawyers are concentrated in the capital city ‘Kampala’, the majority of the Ugandans don’t have access to lawyers [3]. Given the inaccessibility of lawyers and high rate of justice problems, a large percentage of the population relies on informal justice services to resolve disputes [4].

Justice leaders in Uganda are also promoting informal justice services to fill the justice gap. Hon Justice Duncan Gaswaga, the Deputy Head of the Commercial Division of the High Court of Uganda recognised informal justice systems such as community courts as alternative dispute resolution mechanisms that are faster, cheaper and accessible to Ugandans [5].

In such a scenario, Bataka Courts have a significant role to play in bridging the justice gap. “[They] are based within communities, matters are decided quickly and there are no legal or court costs. Their decisions emphasise reconciliation and social harmony” [6].

In this report, we outline various aspects of the service delivery model of Bataka Courts, how it has streamlined monitoring outcomes, its impact on the lives of Ugandans and its marketing and financial model. We also outline the challenges that Bataka Courts faces in scaling and factors that make it a successful model of community justice services. Since not much literature is available on it, the information for this report has been drawn from an interview and discussion with Gard Benda, Director at World Voices Uganda who played a leading role in the implementation of Bataka Courts.

Programme Description

World Voices Uganda (2020) and Benda (n.d) provide a comprehensive description of the Bataka Courts model [7]. The following paragraphs provide a summary of it.

“Each court has a panel of seven elders who are well respected in the community. The elders should not have a criminal record and should be willing to volunteer as a witness. Community members can directly report a problem to any of the elders who then convene a meeting with other community members. The meeting is conducted in the home of the elder who calls the meeting or any other central meeting place to which the disputing parties have agreed to.

The proceedings of the court are conducted in the local language to make sure everyone understands them. Since Kagadi is a multi-ethnic community, an interpreter is appointed to ensure that those who speak another language are also heard. Once the disputing parties present their case, community members are allowed to raise questions, seek clarifications, add information that is relevant to the dispute and offer their points of view. The case is heard for a period of three weeks where an inquisitorial approach is taken to establish the facts of the case. Once all aspects of the dispute have been discussed, the elders intervene. Elders are required to arrive at a consensus before making the final decision.

The elders provide remedies such as requiring the offender to issue a public apology, participating in community service, compensation for victims of wrongs, restitution, simple refund and recovery of debt and property and compensation. The decisions of the elders are binding for as long as the disputing parties accept it. If the disputing parties are dissatisfied with the outcome, then can report it within a span of 14 days. If the parties would like to escalate the dispute to the formal justice system, the Bataka Courts issue a referral after which the case proceedings start afresh”.

Linking formal and informal justice system

Bataka Courts have integrated with the formal justice system and law enforcement agencies successfully to a large extent. The Local Council Courts — a government-driven community justice service in Uganda, Magistrates who preside over district courts, the police and a few other administrative bodies refer cases to the Bataka Courts [8]. “Between 2012 and 2016, over 60 cases were referred to the BC by the Grade1 Magistrates Court in Kagadi, 56 cases were referred from Police, 42 cases from Local Councils, and 16 cases from district institutions” [9].

Findings from the discussion with Gard Benda (2021) also indicate that Bataka Courts have collaborated with the formal justice system to improve upon its service delivery model in various ways.

  • It has developed the rules of dispute resolution mechanism in consultation with the Justice Law and Order Society, which is an arm of the government of Uganda comprising various ministries, law enforcement agencies and other justice sector institutions in Uganda. This was done to ensure that the services delivered address issues related to gender-discriminiation and human rights optimally.
  • To increase awareness among the functionaires of the formal justice systems of the procedures and principles dispute resolution used by the Bataka Courts, World Voices Uganda has developed a training programme to appraise them. Members of the Bataka Courts monitor the activities of the Bataka Courts along with the district level committees set up by the government.
  • The Bataka Courts also refer cases to the formal justice system if the disputing parties do not accept their decision or are dissatisfied with the outcome of the hearing [10].
  • Members of the Batak Courts are trained by the police and magistrates who preside over district level courts in laws, procedures and regulations to ensure fundamental human rights are protected [11]

Scaling the organisation

Bataka Courts was piloted in the sub-counties of Kyaterekera and Ruteete in Kagadi district. World Voices Uganda later scaled it to ten other sub-counties of Kagadi district and into neighbouring districts of  Kyegegwa [12]. To make citizens aware of the services delivered by Bataka Courts and to attract users, the World Voices Uganda uses radio programmes and the operation manuals that are distributed among everyday people. But the main factor that prevents it from scaling to all districts in Uganda is scarcity of funding [13].

Impact of the organisation

Recent data on the number of cases resolved by Bataka Courts is not available. A report by World Voices Uganda (2020) indicates that between June 2019 and September 2019, in a span of three months, Bataka Courts resolved 155 cases. It indicates that the functionaries of the formal justice system, such as the police, magistrates of the district court are satisfied with the performance of Bataka Courts. A Magistrate from Kibaale says, 

“[Bataka Courts are] doing great work. The community refers to the BC as the first response group, before they even report to the police [14].”

A police official remarked “BCs seem more appealing to the community. They are direct. They are fast. All win and the people are happy [15]..”

Although this is anecdotal evidence, these quotes from legal professionals indicate that the community is satisfied with the speed and efficacy of the services provided by Bataka Courts. As discussed earlier, given that magistrates, police and Local Council Courts refer cases to Bataka Courts, it can also be inferred that Bataka Courts have reduced the backlog of cases experienced by these law enforcement agencies. 

Financial strategy of the organisation

Bataka Courts continues to be financially supported by World Voices Uganda [16]. It has received funding from HiiL’s Justice Accelerator in 2019 [17]. Being a community justice service that addresses justice needs of the poor and marginalised, it  does not charge user fees to disputing parties and panel members who preside over the court do so voluntarily. However, the panel members who host the public gatherings and hearings where cases are resolved, have to offer refreshments to all those gathered, as a result of which they incur expenses. All in all, Bataka Courts is currently funded through volunteer labour and donor funding and is yet to explore other sources of funding such as from the government, that can help in achieving financial sustainability.

Lessons learnt

Lessons that can be taken from the experience of setting up Bataka Courts are:

  • To scale a community justice service such as Bataka Courts, it is important to receive financial support from the government.
  • Additionally, the community justice service will also require financial commitment of bilateral and multilateral donors.

Critical Success Factors

Factors that played a critical role in the success of Bataka Courts are : 

  • Despite being a NGO-led programme, Bataka Courts received buy-in from the formal justice system as well as Local Council Courts, the government-led community justice programme. As a result, magistrates from the formal justice system as well as members of Local Council Courts referred cases to Bataka Courts which helped them in reaching scale in the districts where they operate.
  • Moreover, linkages with the formal justice system helped Bataka Courts in gaining legitimacy among the people.
  • Members of Bataka Courts were trained in dispute resolution methods and laws and regulations of the country with the help of training modules. This helped in building the capacity of the justice workers, standardising procedures of dispute resolution and in meeting justice needs of people.

Authors

This case has been developed by the HiiL team based on discussions with Gard Benda on August 12, 2021.

[1] World Voices Uganda, (2020). Capacity assessment of informal justice actors in delivering justice: Compliance with constitutional required and international human rights standards.

[2] HiiL (2019). Justice Needs and Satisfaction Survey, Uganda.

[3] The Justice Law and Order Sector, 2012. Draft Uganda Legal Aid Policy.

[4] HiiL (2019). Justice Needs and Satisfaction Survey, Uganda.

[5] Democratic Governance Facility. (2020). Informal justice mechanisms commended from promoting justice (Blog).

[6] Ssebunya, A. K. (2014). Why local realities matter for Citizens’ Voice and Accountability. Lessons from Mwananchi Uganda pilot projects. Field Actions Science Reports, 11, 1-7.

[7] World Voices Uganda, (2020).; Benda, N.G. (n.d). Bataka Court Model: Operational Manual. World Voices Uganda.

[8] Discussion with Gard Benda and working group members, 2021.

[9] World Voices Uganda, 2020, pg. 31.

[10] World Voices Uganda, (2020).

[11]  Discussion with Gard Benda and working group members, 2021.

[12] World Voices Uganda, (2020).

[13]  World Voices Uganda, (2020).

[14] Ibid.

[15] Ibid.

[16] Ibid.

[17] HiiL, (2022). Advancing people-centred justice in Uganda: where are we seven years later? (Blog).

Table of Contents

Community Justice Services - Policy brief
1. Justice close to home: A gamechanger?
2. Critical Success Factors
3. Outlook

Cases:

Posted on

Case: Sierra Leone Legal Aid Board

CASE

Sierra Leone Legal Aid Board

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Photo by Legal Aid Board Sierra Leone

Community Justice Services – Policy Brief / Case: Sierra Leone Legal Aid Board

Key fact and figures

Year of establishment
2015
Scope of service
Legal representation, advice and education
Geographical scope
Country wide
Legal entity
Government created institution
Type of justice problems addressed
Wide range including criminal and civil, adult and juvenile. Three leading types of criminal cases are larceny, sexual harassment and robbery with aggravation.

Most common advice/assistance/mediation cases are child maintenance (65% of the total), land and property disputes (16%), debt (7%) and family disputes (5%)
Regulatory embeddedness
Part of the government
Number of affiliated staff members
58 paid by govt, 33 funded by external donors and 18 volunteers
Number of cases resolved
18,555 represented
49,282 advised/assisted/mediated
45,004 received legal education
Citizen satisfaction
Best performing justice institution
In public survey 47% rated excellent
Next highest institution only scored 10%
Costs of services for citizens (average and range)
$22 per client (total budget/ 67,000 legal rep and legal advice clients). As budget also covers legal education unit costs for representation/advice likely to be lower
Annual Budget
Government funding $1.0 million
ODI estimate other sources to be no more than $0.5 million
Total budget $1.5 million

* All figures refer to 2019 unless otherwise stated

Inception of the Legal Aid Board

The establishment of the Sierra Leone Legal Aid Board (SLLAB) has been a long drawn out process. Its genesis lay in a Open Society Justice Initiative in 2002 that explored options to support transitional justice in Sierra Leone, in the aftermath of the civil war and the general elections that followed it. The experiences of Street Law and Black Sash, two NGOs in South Africa that had implemented a pioneering paralegal programme,  sparked the interest of local civil society organisation Forum for Human Rights,  based in Sierra Leone. Forum for Human Rights perceived lack of access to as one of the drivers of conflict in the country.  In response to this interest, the Open Society Foundation began funding community paralegal work which led to the creation of Timap for Justice, an NGO in Sierra Leone in 2005 [2].

The UNDP Commission on Legal Empowerment of the Poor and Open Society Foundation supported recommendations of TIMAP in innovatively deploying paralegals to deliver justice services in the community. This increased the interest of international stakeholders further. By 2010, TIMAP and a group of four other NGOs had covered eight of the twelve districts and in 2013, had resolved 4,300 cases that year, owing to the support of the Open Society Foundation [3]. The group then also began to advocate for formal recognition of the role paralegals could play [4].

At the same time, the judiciary and bar association gave pushback to the institutionalisation of paralegals in the country because they perceived the paralegals to be competitors. To convince them that the paralegals are going to perform tasks that lawyers are not interested in, supporters of the programme utilised the media and held legal conferences with them. In 2009, the Justice Sector Development Programme of the Sierra Leone set up a Pilot National Legal Aid scheme (PNLA) [5]. In 2011 the UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems were drafted. With support of the Open Society Justice Initiative, the then Attorney-General, Frank Kargbo, worked towards getting the Legal Aid Act in Sierra passed in May 2012. The Act both established the Legal Aid Board and formally recognised the role of paralegals, but there was no solid financial support or provision for funding made by the government.

After much delay, in 2015, the Legal Aid Board secured financing commitments from both government and bilateral and multilateral aid agencies. The government committed to providing a million dollars a year in funding whereas the Charles Stewart Mott Foundation and the Global Fund provided another half a million. To sum up, the Sierra Leone Legal Aid Board began as a community and civil society led initiative and was later assimilated into the government. It is therefore overseen by the government and enforces its actions through the formal legal system.

In 2013, TIMAP — the local NGO that started the initiative — together with four other NGOS, covered 3% of the total legal needs in Sierra Leone. As the Legal Aid Board scaling, the scale has reached to a factor of 10 i.e the Legal Aid Board met one third of the justice needs in the country.

Services provided by the Legal Aid Board

To prevent and resolve disputes,  the Legal Aid Board provides justice seekers legal representation and provides support to widows and women who are survivors of domestic violence including expulsion from their matrimonial homes via paralegals. The paralegals provide guidance on dispute resolution methods to administrators of local and informal and traditional courts. They also conduct legal education, awareness and empowerment activities during town hall meetings, community and school outreach events and community radio phone-ins. 

The Legal Aid Board monitors justice institutions such as police stations, correctional centres, local courts, informal courts (presided over by traditional authorities) and magistrate courts. It oversees child maintenance matters when couples separate. The Board also seeks to educate people on the rights in both the formal local courts and the informal/traditional courts.

Financing the development of the Legal Aid Board

The Legal Aid Board has scaled up community-based justice advice and assistance by a factor of 10 and has done so affordably, reducing unit costs by a factor of 5 compared to previous donor-supported NGO implemented programmes.

ODI research suggests that even after the scale up, the Legal Aid Board is able to meet only a third of total justice needs [6]. This is mirrored by Legal Aid Board’s own concern that while the Act envisaged paralegals in all chiefdoms, it has only been able to place paralegals in one third of the 190 chiefdoms to date. On the other hand, the unit-costs of the Legal Aid Board at $22 per client is in line with ODI global estimates [7].

However, funding poses a big challenge to scaling the initiative. The current funding by the Sierra Leone government (9% of the justice budget) is not realistic to expect on a long term basis [8]. Bilateral donors have also been unwilling to fund the initiative and other avenues may be needed in the future if these efforts have to continue and grow.

Role of enabling environment in the growth of the Legal Aid Board

The Sierra Leone Legal Aid Board, after its formation, did not experience challenges from regulatory bodies except for opposition by bar associations and lawyers at the inception stage. 

After the Legal Aid Board was established, changes in the government did not affect its funing. The political party that came into power after the one that had established the Legal Aid Board continued funding of the Legal Aid Board, in the same capacity as the previous party.  Sierra Leone Legal Aid Board is now the most highly regarded legal institution in Sierra Leone with nearly half of the population rating it as ‘excellent’.

Lessons learnt

Lessons learnt from the experience of setting up the Sierra Leone Legal Aid Board are:

  • Community justice services have to be locally owned by the people of that country. TIMAP and the other NGOs that collaborated with it were able to demonstrate the effectiveness of paralegals before the programme was nationalised.
  • Rallying the support of existing service providers – lawyers and bar associations — was necessary to be able to institutionalise the paralegals. Similarly, buy-in of national leaders was also essential to the nationalisation of the programme.
  • Having some ‘smart friends’ with ‘smart finances’ outside can be really helpful. For example, the journey wouldn't have taken off without the Street Lawyers or Open Society Foundation telling the world about the work of the Street Lawyers.
  • One of the key indicators of the success of the Legal Aid Board has been that the unit cost of resolving a dispute came down massively owing to the deployment of paralegals.

Critical Success Factors

Factors that are critical to the success of the Sierra Leone Legal Aid Board are: 

  • Long term persistence of more than a decade by a group of committed Sierra Leonean champions and a few international colleagues who collectively had the vision and the skills to create successful paralegal programmes and draw on this experience to effectively advocate for change.
  • Long term investment by both donors and philanthropic agencies over multiple project funding cycles, whose politically smart flexible funding enabled the Sierra Leonean champions and key government ministers and officials to draw inspiration and lessons from other countries (in particular South Africa and Malawi).
  • Long term commitment of the paralegals in Sierra Leone whose difficult work in remote areas over many years demonstrated what was possible.
  • The post- conflict recovery of the economy, and hence government revenues, which enabled the government to eventually take on some of the financing costs.
  • Political stability with the same party in power from 2007-2018 covering most of the key years and the same Attorney-General (Frank Kargbo) between 2010 and 2015.
  • Political freedom, especially contested elections, which give an incentive to the new incoming government to continue to fund services that are shown and known to benefit people in a cost-effective way.
  • International efforts to make the case for legal advice for the poorest, most notably the Commission for the Legal Empowerment of the Poor.

Authors

This case has been developed based on Marcus Manuel [1] and Claire Manuel’s ODI paper.

[1] This case has been developed based on

      • Manuel, M., Lavaly, S. and Manuel, C. (forthcoming) ‘Case study of Sierra Leone Legal Aid Board – background paper’ for P. Domingo and A. Pellini (forthcoming) The political economy of domestic resourcing of access to civil justice. London: ODI. (copy attached)

[2] Maru, V. (2006). Between law and society: paralegals and the provision of justice services in Sierra Leone and worldwide. Yale J. Int’l L., 31, 427; Maru, V., Braima, L., & Jalloh, G. (2018). Squeezing Justice Out of a Broken System: Community Paralegals in Sierra Leone. In V. Maru & V. Gauri (Eds.), Community Paralegals and the Pursuit of Justice (pp. 210-240). Cambridge: Cambridge University Press.

[3] Maru, V., Braima, L., & Jalloh, G. (2018). Squeezing Justice Out of a Broken System: Community Paralegals in Sierra Leone. In V. Maru & V. Gauri (Eds.), Community Paralegals and the Pursuit of Justice (pp. 210-240). Cambridge: Cambridge University Press.

[4] Ibid

[5] Suma, M. (2014). Sierra Leone – Justice sector and the rule of law. Open Society Foundation for West Africa.

[6] This is based on the latest WJP survey for Sierra Leone shows 54% of households have a legal need every two years, i.e. 27% every year.

[7] DFID Project Completion Report for AJSP noted unit cost for paralegal services ranged from $70 to $800 with an average of $150 per case. It also noted that the Legal Aid Board offers the best prospect for a longer term more sustainable model.

[8] Ibid.

Table of Contents

Community Justice Services - Policy brief
1. Justice close to home: A gamechanger?
2. Critical Success Factors
3. Outlook

Cases:

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