Barry Walsh

Presentation: World Bank, September 29, 2010, Washington DC

The book is about seven studies (stories)

1. First Aid in Justice – alternative legal aid in Africa

2. Getting the Record Straight – improving court record

management and court administration in Ethiopia

3. Trusting the Court – a judicial transparency and

accountability mechanism for magistrate court stations

4. Taking Care of Business – strengthening commercial

justice systems in Africa

5. Home Spun Justice – state administered mediation services

in Nigeria

6. Knowing the Law – publishing laws and case outcomes

7. Courts of Last Resort – open sky trials in the aftermath of

genocide

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Poor countries need legal aid by reason of ◦ Insufficient numbers of competent/ ethical lawyers where they are needed◦ Unaffordability of lawyers for most citizens◦ Poverty of those who are involuntarily affected by the justice system◦ Poverty of justice and civil service agencies

Legal aid can take one or more of these forms◦ A civil service public defence or legal aid agency◦ A judicare system that uses public money to hire private lawyers and

extending the reach of civil service agencies◦ A contracting fund to hire private lawyers in lieu of a civil service legal aid

agency◦ Pro bono schemes, whereby private lawyers spend part of their time

representing impecunious defendants and for no fee

Most African countries lack any of these or provide only token funding for legal aid schemes

Low cost legal aid schemes necessarily require most to be denied adequate advice or representation

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A paralegal in the USA means a junior lawyer or a law clerk in training – but in the developing world it means a non-lawyer who assists when there are no lawyers available.

What can paralegals do? In the prisons, police stations & courts paralegals can assist:◦ At time of arrest, to identify children in police stations and prevent them

being processed as adult offenders

◦ At first court appearance, to advise a detainee about rights of bail and bail procedures

◦ Between court adjournments, to advise prisoners on their rights to lodge a bail application (prison guards can be trained as paralegals)

◦ Before a plea is taken, to vet and refer to lawyers those who need advice on entering a plea in lieu of further adjournment

◦ At trial, to assist a pro bono lawyer to gather evidence and bring useful witnesses

◦ Before sentencing, to provide to the court information about an unrepresented defendant relevant to sentencing

◦ During sentence hearings, to bring witnesses for an unrepresented defendant, such as family members

◦ After sentencing, to refer convicts to a pro bono lawyer to consider lodging an appeal.

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A national organisation of 39 paralegals (40% women) covering all prisons and major police stations

Funded by multiple donors since 2000 and claiming credit for◦ Significant prison decongestion – (under-trials down to 17%)◦ Diversion of 75% of arrested juveniles out of criminal justice

system at police stations◦ Reducing delays in the criminal courts◦ Supporting prisoner rights to bail and appeal◦ Improving the physical condition of prisons

Elsewhere in Africa, only South Africa has a comparable national paralegal service

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The Timap for Justice program extended the paralegal concept to traditional justice system chiefdoms of Sierra Leone (community paralegals), achieving similar results mostly outside of the formal justice system

Paralegal prison officers have been trained in Kenya

In few other parts of Africa have these successful programs been extended, so far.

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Normalising country-wide use of alternative legal aid:

Institutionalise paralegal service standards and practices

Develop legal aid system financial models

Extend legal aid to court projects

Extend legal aid to prison and police projects

Bridge formal and traditional justice interfaces

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Court Administration Project, phase I (CAR I - funded by CIDA) – a 6 month feasibility study in 1996 followed by an 8 month implementation period.

Based on CAR I’s modest successes, CAR II ran for 4.5 years from 2001 to 2005 (US$3.88m)

Ethiopian court officials and judges continue to claim that the benefits of CAR II have endured

CAR II was concerned with improving courts in these areas:◦ Court record keeping, recording court proceedings, case tracking, case

scheduling, enforcement, document processing

◦ Managerial skills, management information, performance measurement, strengthening judicial independence

◦ Strengthening the Ethiopian bar, public access to court information, increasing the number of women judges

◦ Improvements in buildings, service facilities, communications.

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Color-coded numbers on paper records

Audio recording of court proceedings

Computerized case tracking

Interactive voice response (IVR) telephone services

Electronic information kiosks

Electronic document filing

Video links to regions

ICT development capacity

Case management expertise –acceptance of new methods

Associated process reform –re-engineering of manual step processes

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Goals were set locally

Thoroughness of design process

Systematic design methodology

Truly bilateral cooperation

Merit-based project recruitment

Commitment to gaining judicial trust

Comprehensive approach to change programming

Co-ordination of judicial administration with project management

Change piloting

Training ... lots of training

Twin emphasis on assuring integrity and accessibility of the court record and a commitment to local participation in project design

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A stronger focus on results in court administration reform

Avoid mere procurement

Apply court performance evaluation standards

Institutionalize a public dimension of court service

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With support for GTZ, the Kenyan Magistrates & Judges Association (KMJA) developed a transparency and accountability mechanism (TAM) for use by magistrates

The concept of TAM was piloted in 11 magistrate court stations in 2006 and 2007

The pilot was poorly & incompletely evaluated, but was sufficient to persuade the judicial leadership that TAM was worthy of advancement.

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Four new processes for use within a single court station:

Judiciary dialogue cards – pro forma survey cards that could be used as a service complaint form (with the option of anonymity) –each cards were uniquely numbered (twice)

Court user committees – a group of magistrates and key stakeholders (e.g. police and bar) would meet to consider and respond in writing to each judiciary dialogue card received.

Peer review committees – comprising only magistrates to consider dialogue cards that specifically allege judicial corruption

Judiciary dialogue boards – notice boards in court public foyers bearing the results of deliberations of the user committee or peer review committee – each notice bears the unique card number

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The system worked – many anonymous complaints were lodged, but also many identified complainants

All complaints were responded to in writing, including anonymous complaints

Most complaints related to poor efficiency, rather than corruption – many complaints reflected more on the stakeholders than on the magistrates e.g. police, private lawyers, court staff, other government officers

Shown to be simple, low cost, demanding minimal training and usable without new technology

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Strengthen judicial accountability and service delivery

Formalize user committees

Commit to explicit standards of judicial independence

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Donor-sponsored justice projects that are concerned with development of business and trade tend to fall within three practical categories

1. National statutory reform, usually relying on local experts supported by foreign experts implementing a local solution

2. Adoption of international law standards, such as OHADA*

3. Special commercial dispute resolution processes – “commercial court” development*

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A treaty signed by 14 Francophone African

countries in 1963 – i.e. Benin, Burkina Faso, Cameroon,

Central African Republic, Chad, Comoros, Congo, Cote d’Ivoire, Gabon, Equatorial Guinea, Mali, Niger, Senegal, Togo – later Guinea (Conakry) and Guinea Bissau – nearly a quarter of sub-saharan Africa

Purpose: A regional organization to develop a single legal framework for signatory countries to govern their economic activities and to promote arbitration as a means of settling commercial disputes

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Four elements: A Council of Ministers to adopt legislation on behalf of

signatories

A common Court of Justice and Arbitration (CCJA) in Abidjan, Cote d’Ivoire with 7 judges to interpret OHADA laws, adjudicate matters arising & act as a supreme court of cassation

A permanent secretariat in Yaounde, Cameroon, to coordinate, prepare draft laws and promote those laws

A regional school for the training of legal officers in Porto Novo, Benin for judges and court officers concerned with administering OHADA laws

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Now there are uniform laws on:

General commercial law

Company law

Securities law

Debt recovery & enforcement

Bankruptcy

Arbitration law

Accounting law

Carriage of goods by road

Challenges and opportunities: Slow pace of new law uptake – on

average one every two years No laws have yet been reviewed Continuing conflicts with local

laws Poor enforcement Limited participation in law

making by national institutions Permanent secretariat has

suffered capacity problems Although Francophone, there is

potential to expand to Anglophone & Lusophonecountries in the region

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The main purpose of establishing a commercial court in a developing economy is to give priority to the resolution of commercial disputes as a means of attracting investment, enhancing national development increasing employment and creating common wealth

But it entails isolating a part of the judicial system and making it available to only a defined class of cases, usually concerned with international trade, mining, agriculture, banking, transport systems and general civil construction

The change theory of commercial courts development is that once established, they will determine important cases more quickly and more satisfactorily.

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Commercial Court initiative from 2000:◦ Quarantined 3 of 15 high

court judges exclusively for commercial bench work

◦ Committed to placing one judge in three cities – Dar Es Salaam, Arusha & Mwaza –with donor assistance

◦ Charged very high filing fees for commercial cases (%/value in dispute)

◦ Allowed litigants the option of filing cases instead in the general courts

◦ Made no changes to the court of appeal

Results: High fees assured very low

caseloads for the new court Other commercial cases

remained in the general courts Delays were reduced for a time

to nearly half that of the general courts (i.e. to 2 yrs)

But court efficiency was thwarted by delays in the court of appeal and by vacancies as the commercial judges were promoted to the appeal court

General case delays in the High Court were aggravated by the loss of 20% of its judges to the new court (i.e. Case delays up to 4 yrs or more)

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Expanding the reach of OHADA

Measuring the performance of commercial courts

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Citizens’ Mediation Centre (CMC) established in 1999 in Lagos city (legislation in 2003)

Staffed by salaried officers of Lagos Ministry of Justice

The aim was to mediate pre-litigation disputes free of charge – no judges or lawyers involved

Clients were typically the urban poor – mostly landlords and tenants

In 2009 the CMC had 30 mediators in 4 branch offices in Lagos state, processing over 8,000 cases p.a.

Donor assistance provided CMC with a computer system for tracking cases and for evaluating outcomes; and a strategic planning process incorporating useful performance measures

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Client satisfaction – proportion of users who report satisfaction via a post-mediation user survey

Successful case clearance rate – comparing rate of new cases with rate of case disposal

Successful case disposal times – average times from start to finish (90% under 3 months)

New complaints registration rates – comparing new cases from year to year (10% increase planned)

Citizen awareness – via public survey

Facilities upgrade – the size of budgets for upgrading CMC facilities

Satisfaction with facilities – the proportion of users satisfied with the CMC facilities they use

Satisfaction with staff – via user survey, satisfaction of users with attitude of CMC staff

Effective records system – audit the consistency & accuracy of record keeping

Availability of management information – audit the regularity & relevance of routine management reports

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Pursue pre-litigation diversion options

Applying mediation standards and cost models

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Access to public legal information by judges, lawyers, legal academics, the media and the general public is an issue in Africa

While most countries can publish new law codes readily (usually via the legislature), they often lack capacities to disseminate new codes and to preserve ready access to old codes that are still in force (consolidated law)

Case law, academic law essays and directives issued by courts also constitute part of the written law in all legal systems, yet systems for disseminating those kinds of laws can also be very deficient. The primary publishers of case laws in the world are courts of justice, rather than government agencies.

Law libraries in Africa are rare, law books in courthouses commonly lacking

Commercial law publishers thrive in highly developed countries (usually as multinationals) because of the wealth and number of subscribers and economies of scale – in Africa, there are much smaller numbers of lawyers, judges and other law readers and the costs of book publishing are high.

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The advent of the Internet, mobile telephony and e-book reading devices means that the media for access to laws is greatly expanded, even in developing countries – but the supply of original primary materials via these media is still minimal

The global need for better access to laws is recognized by the Free Access to Law Movement, which defined public legal information in 2002 to mean:◦ “legal information produced by public bodies that have a duty to produce law and make it public. It

includes primary sources of law, such as legislation, case law and treaties, as well as various secondary (interpretative) public sources, such as reports on preparatory work and law reform, and resulting from boards of inquiry. It includes legal documents created as a result of public funding.”

Developed economies have no trouble publishing public legal information via the Internet. In Africa, even where the Internet is available, local public legal information is often rare – being limited largely to the re-publishing of paper publications.

Public legal information relevant to Africa is published online by DroitFrancophone, CommonLII, JuriBurkina, Legal Information Institute of Cornell University (USA), JuriNiger, the Southern Africa Legal Information Institute (SAFLII) - and the Kenya Law Reports (eKLR), which has been particularly successful

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National Council of Law Reporting (NCLR) was established by statute as a government corporation in 1994

Operational from 2001 when it was given adequate funds and a full time editor

It addressed a 20 year case law reporting backlog - in 2009 backlog reduced to five years, now likely to be fully cleared by 2012

It produced a range of edited publications now available in book form and via the internet (free of charge)

Elements of NCLR’s success:◦ Adequate resources

◦ High-level sponsorship (by the chief justice and treasury)

◦ Independence of operations (there was only peripheral donor funding)

◦ Full-time editorial leadership

◦ It embraces the principles of the Free Access to Law Movement (i.e. public law information is not privatized or commercialized)

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Supporting re-publication of public legal information

Establishing an information clearing house for sub-saharan African justice sectors

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Describes the genesis of the gacaca courts of Rwanda – which were concerned with locally prosecuting those arrested and imprisoned for crimes against humanity (belatedly, after most defendants had been detained for 10 years)

Profiles the jurisdictional and public administration features of the gacaca courts and explains why they were seen to be so odious by many expert observers – but otherwise popular among victims and other Rwandans

Identifies the quandary for any national government (and international community) in establishing satisfactory restorative justice mechanisms.

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Civil justice system planning in fragile and conflict-affected situations (i.e. soon after armed peacemakers hand over to civilians)

Applying new, long-term restorative justice models

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Normalize country-wide use of alternative legal aid Pursue a stronger emphasis upon results in court

administration reform Strengthen judicial accountability and service delivery

intervention programs Pursue pan-African commercial laws and dispute

resolution processes Expand access to non-court mediation services Expand the processes for providing effective access

to public legal information Establish realistic plans for restoring civil justice in

failed states And finally and generally, there is a need to pursue

parallel justice system development activities in African justice systems for regional benefit

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