Costly justice: Why communities in Sierra Leone turn to paralegals instead of Local Courts to resolve their justice problems
The Justice for All report highlights the need to create better justice journeys by empowering people and communities, providing access to people-centered justice services and ensuring fair outcomes.
An estimated 70% of Sierra Leoneans depend on Local Courts for the resolution of their justice problems such as child and spousal support, property, tenancy and land disputes. This guest blog in our Justice for All blogs series focuses on the reasons behind the choices people make for their justice journeys in Sierra Leone.
The authors draw on research that suggests that people, in their search for solutions to their justice problems, are shifting away from the State backed Local Court system, to paralegal organizations. The blog lays out the reasons for this shift and concludes that communities have realized that the services of Local Courts are neither affordable, nor fair, and that they are steeped in customary practices that hardly deliver justice in process or outcome. This, according to the researchers, explains the growing popularity of paralegals. The research continues and the final report will cover these, and other issues affecting the delivery of justice to communities in Sierra Leone.
By Aisha Fofana Ibrahim, Felix Marco Conteh, Henry Mbawa, Sonkita Conteh, and Yakama Manty Jones
(The authors are part of the Sierra Leone component of the three-country research being conducted by the Centre for Alternative Policy Research and Innovation (CAPRI). Authors are listed alphabetically by first name.
An estimated 70% of Sierra Leoneans depend on Local Courts for the resolution of justice problems such as child and spousal support, property, tenancy, and land disputes. However, emerging research findings suggest communities are shifting away from the State backed Local Court system, to paralegal organizations. In this blog, we explain the three main factors we identify for this shift: financial extortion, flawed judicial processes, and gender discrimination. These findings illustrate the limits of state-centric community-based justice reforms, attributable to a failure to fully implement reforms that would align Local Courts within the main judicial hierarchy, ensuring effective supervision, and independence from the control of chiefs. Community-based justice reforms we argue, should incorporate a deeper understanding of how local justice institutions work, in order to deliver justice for all.
This discussion builds on a recent complementary blog post, in which we shed light on forum shopping of community-based justice institutions in Sierra Leone, and the rational decisions that are driving individuals to paralegals particularly in rural areas that remain largely underserved by the formal justice system. While the findings may not be new, they deepen our understanding of the factors influencing choices people make for their justice journeys and the implications for access to justice in developing countries. These findings are part of a bigger ongoing three-country research supported by the Open Society Initiative for West Africa and the International Development and Research Centre of Canada, that is assessing the quantitative and qualitative costs and benefits of community-based justice services in Kenya, Sierra Leone and South Africa.
The Local Courts
The Local Courts in Sierra Leone were first statutorily recognized by the1933 Native Courts Act. Until 1963, when a new Local Courts law was enacted, chiefs or their appointees presided over all levels of the courts. The 1963 Local Courts Act however ended the judicial role of chiefs and brought the institution under the supervision of the executive branch through the Ministry of Local Government and Rural Development (MLGRD). Forty-eight years later, a new Local Courts Act (2011) introduced several changes, including situating Local Courts within the Judiciary. Local courts can adjudicate civil and criminal matters under customary and the general law.
On paper Local Courts are meant to be easily accessible for the majority of citizens constituting an entry point into the formal justice system, with the observance of due process, including rights of appeal. In reality, principles of due process and non-discrimination are absent due to a lack of political will to follow through reform process initiated by the 2011 law. Also, the lack of meaningful supervision or practical and functional separation from chiefdom administration, has led to perverse results in the system, pushing people away from Local Courts. While there is a right of appeal against a Local Court’s decision to the District Appeal Court made up of a magistrate and two assessors, such appeals tend to be cumbersome and could be stymied by a parallel process in the law. Rather than build on the reforms initiated under the 2011 Local Court Act to improve on processes and outcomes, the current government is pushing for the courts to be returned to the MLGRD, a move that could to further undermine their legitimacy and functionality. Below we discuss the three main factors pushing communities from Local Courts, to paralegals, as identified by focus group participants.
A major reason cited by focus group participants relates to financial extortion in the Local Courts, which significantly increases the cost of justice for the plaintiff and defendant. The Local Court Act makes provision for the imposition of fines not exceeding SLL 50,000 or USD 5. However, as one participant noted, local courts, “have been imposing ridiculous fines and punishments,” far in excess of what is allowed in law, partly due to the lack of clarity among service users as to the maximum fines the courts can impose on them. Several other participants noted that Local Courts can impose fines up to 20 times higher than that which is allowed by law; and one senior paralegal in Bo noted that, “there have been instances where they have fined people as high as SLL 2.5 million,” or USD 250.
In addition to fines, service users are asked to pay for a number of other unauthorized expenses such as transportation for the courts’ police to serve summons or warrants, and for paper and pens to record proceedings. Our research has shown that the financial extortion perpetuated by Local Court officials, is in many ways a consequence of the lack of funding for their operations, the lackluster supervision from the judiciary, and communities’ lack of understanding of how the courts are supposed to operate.
Flawed judicial processes
Generally, the violation of human rights — related to security of the person and due process — continues to characterize the operations of Local Courts. Women focus group participants in Port Loko and Kambia, in Northern Sierra Leone noted molestation as a major reason for them not taking their complaints to local courts. They reported being shouted at and told to “shut up” by court officials, and left feeling “humiliated” when Court Chairmen regard them as children, a relationship which puts them in a dependent position and limits their rights. In instances where individuals cannot pay fines for minor and bailable infractions, they are “locked-up” in uninhabitable cells; and it is not uncommon for verdicts to be influenced by the testimonies of unreliable witnesses.
Further, while in theory the Local Court Act disrobed Paramount Chiefs of powers over the courts, in practice they and other powerful actors wield control over them, including in the appointment of court Chairpersons. This means that Local Courts seldom deliver adverse decisions against Chiefs, their relatives, and powerful personalities. One senior paralegal in Kenema in the East of the country suggested that because proceedings in Local Courts are based on customary law, Chairpersons find it hard to maintain a balance between provisions in the Local Court Act and Chiefs’ by-laws which may contain discriminatory, dehumanizing, and harsh punishments.
In addition to financial extortion and flawed judicial processes, discriminatory practices against women within the courts, compromise the principle of equality before the law. Given that Local Courts generally consist of chairpersons and panel of elders supported by court clerks who are predominantly men, male hegemony and solidarity, reinforced by tradition, tend to influence judicial processes and outcomes against women. Further, sometimes “unreasonable” restrictions are placed on women’s mode of dress, forcing them to cover their heads during court sessions — a sexist practice prohibited by the Judiciary.
Some women noted feeling uncomfortable narrating personal issues pertaining to their sexuality in front of male dominated courts that lack professional skills to deal with such sensitive social issues, as well as their trauma. Thus, the disregard for women’s right to be treated equally as men before the law, in addition to court officials’ lack of training on how to deal with gender sensitive issues, continue to push women away from the courts, to paralegals who have since become credible alternatives because of their free services, respect for rights, and prioritization of the preservation of relationships.
Reaction of Local Court officials
The withdrawal of communities from the Local Courts has not gone unnoticed, as court officials are working to reverse this trend. One high ranking Local Court official noted that the courts have observed a significant drop in the number of family law cases in the last few years. He noted that Local Court Chairpersons around the country have adopted a number of strategies to stem the tide, including reductions in court fines and monthly rotational meetings, intended to serve as forums for peer learning and advice. Another Local Court official noted that they use the meetings to review decisions of their peers and build support in the face of pressure from Paramount Chiefs and other powerful figures who tend to interfere with their work.
Although Local Court officials have been suspicious of paralegals — seeing them as rivals taking away their clientele, there is evidence the relationship is changing, with paralegals reportedly observing Local Court proceedings in some parts of the country. Indeed, heads of paralegal organizations interviewed for this research, reported observing a reduction in court fines, especially in urban centres.
The growing unpopularity of the Local Courts among local communities as we have seen, is a reflection of their failure to embrace meaningful reforms including respect for gender equity and human rights. Communities have realized that their services are neither affordable, nor fair; and are steeped in customary practices that hardly deliver justice in both process and outcome. This explains the growing popularity of paralegals. So far, it remains unclear whether the confidence building strategies of Local Court Chairpersons, as well as the reduction in court fines will change communities’ perceptions of the courts. However, the fact that Chairpersons are taking actions to win communities’ confidence, is illustrative of a broader need for reforms of the courts, which will require significant interventions from the government, and all those interested in the delivery of justice. The challenges faced by the Local Courts as we have highlighted, indicate that legal and administrative changes alone cannot make longstanding corrupt and dysfunctional judicial spaces equitably functional for all. Justice reforms must be accompanied by the necessary political and financial will to change the systems and processes that necessitate such programs in the first place. The final report of this study will expand on these, and other issues affecting the delivery of justice to communities in Sierra Leone.