What Will It Take to Achieve Equal Access to Justice for All?
Re-think Justice Aid
Clare Manuel and Marcus Manuel, Senior Research Fellows, ODI, London.
This is the fourth and final blog in a series on financing justice by Clare Manuel and Marcus Manuel, Senior Research Associates at ODI. Throughout this series the authors address the question: “what will it take to achieve equal access to justice for all?” and draw on ODI’s pioneering research on justice financing: “Taking people-centred justice to scale: Investing in what works to deliver SDG 16.3 in lower-income countries,” supported by Pathfinders for peaceful, just and inclusive societies, the Netherlands Ministry of Foreign Affairs and funded by the Charles Stewart Mott Foundation. In the piece below, the authors call for a re-thinking of justice aid — what to fund, where, and how it’s delivered.
How realistic is it to believe that it is possible to deliver equal access to justice for all globally? ODI research shows that there are grounds for optimism in rich countries, where there is no overall funding constraint to changing the way justice is delivered so that it is people-centered. In these countries: the issue is garnering the political will to be led by data and evidence and to re-prioritize existing resources towards new kinds of services that provide effective front-line justice to communities and individuals.
But in lower-income countries, the situation is very different and the signs are not positive:
- The level of un-met justice needs in lower-income countries is high: typically, 90% of justice needs are not being met — including gender-based violence, human rights abuses, and land disputes.
- Low-income countries are able to fund less than half of the costs of even a basic justice system from their domestic resources. Meeting the justice finance gap in lower-income countries will require external resources.
- At the same time justice is becoming less of a priority for donors: aid to justice continues to fall in absolute terms and also as a proportion of all aid. Most justice aid goes to middle-income countries.
To prevent lower-income countries from being left behind, there needs to be a change in justice aid. This is not surprising. In the health and education sectors, it was changes to the ways in which aid was delivered and targeted in lower-income countries that contributed to a massive scale-up in access to these services seen over the last 30 years. The justice sector is currently in the privileged position of being able to learn lessons from other sectors about how they achieved significant change in providing front-line services to people and communities.
The good news is that with targeted external assistance, there is scope for very significant improvements in access to justice in lower-income countries. Forthcoming ODI research into front-line justice services in a range of lower-income countries shows that even in fragile, conflict-affected, and oppressive political contexts, governments and civil society are providing justice services that address justice needs for individuals and communities at affordable costs, where external assistance partners with national funding.
Re-direct aid to service delivery: fund front-line people-centered justice
ODI’s review of donor justice programming shows that donors’ justice programming rarely focuses on funding front-line people-centered justice services, but instead continues to largely target top-down institutional reform and capacity development of core justice / human rights institutions. Encouragingly, USAID’s new Rule of Law Policy promises a paradigm shift towards people-centered justice. But the overall conclusion from decades of donor justice programming is that while justice programs may have succeeded in what they set out to achieve in the short term, they have rarely achieved significant, positive sustained impact in access to justice.
Donor justice programs continue to be largely delivered by international organizations and/or consulting firms. In other service sectors donors have largely moved away from this model, and instead provide funding to local actors (which may be government or civil society) to provide front-line services.
Co-funding front-line services in lower-income countries presents a range of challenges for donors including funding modalities, accountability, and operating in oppressive political contexts. ODI’s review of donor justice programming shows that, despite the challenges, focusing on front-line services provided by both governments and CSOs can be effective, even without improvements in the wider rule-of-law context. The justice sector is fortunate because it can glean lessons from other sectors where donors have successfully funded front-line services for decades, and developed deep experience of addressing these kinds of challenges.
Success breeds success: focus on achieving targets
The experience of other sectors, such as health and education, shows that the ability to demonstrate results through improving front-line services has led to more funding: success bred success. Arguably, the limited ability of the justice sector to demonstrate significant, sustained results has contributed to continued declining aid to the sector.
Targeting justice aid on co-funding front-line services would directly impact on SDG16.3 indicators. If the international community were to provide funding for (1) criminal justice defenders for all pre-trial detainees and (2) community-based legal advice and assistance so that these services were taken to scale, there would be a direct and significant impact on two SDG16.3 indicators: SDG16.3.2 — unsentenced detainees as a proportion of overall prison population; and SDG16.3.3 — proportion of the population who have experienced a dispute in the past two years and who accessed a formal or informal dispute resolution mechanism, by type of mechanism.
Funding these two services, with the affordable unit costs that ODI research has shown can be achieved, across all low-income countries would costs $249 million a year. This is 8% of current total aid to justice.
Develop a new, high-ambition aid architecture
Donors need to change not only what they fund, but also how they provide funding. What is needed is a paradigm-shift in justice aid delivery mechanisms to enable aid to be delivered directly to front-line service providers. The justice sector has much to learn from the experience of results-based global funds which have enabled huge transfers of donor funds to a range of front-line services including health, education, water, and sanitation. For example, the Global (Health) Fund invests $4 billion a year. Funding is strongly linked to results, so that the Fund can demonstrate a clear causal link between financing, interventions, and results, which in turn crowds in more funding. The Fund has a strong focus on cost-effective, value for money services, and on scaling up services to achieve nationwide coverage. The Fund’s pooled funding mechanism has reduced donor fragmentation, enabling longer-term, coordinated, and predicable funding for lower-income countries.
The justice sector can learn much from the Global Health Fund as well as similar service-delivery funding mechanisms. What is clear is that the current aid delivery mechanisms in the justice sector are not fit for purpose — if that purpose is to deliver scaled-up front line people-centered justice services.
