The practice of justice

April 2016

The rule of law is a vital building block for fair and functioning societies. The UK has much to offer other countries seeking justice reform. Doing so can also have major benefits for the UK’s own security, prosperity, and influence.

Up to 4 billion of the world’s population do not benefit from the proper rule of law. Yet the rule of law and equal access to justice  are fundamental conditions for functioning societies. They are also significant contributors to economic prosperity. Furthermore, the perception of unfair treatment before the law is a major contributor to instability and violent extremism

As well as clear humanitarian motivations, there are therefore important benefits for the UK in terms of influence, prosperity, and security if it supports countries’ efforts to strengthen the rule of law.

The UK is in a strong position to support these countries. It is perceived as un-corrupt. It shares historic links with legal systems in many of them, particularly in common law jurisdictions. English Law is internationally respected and widely used. The UK also has the advantage of significant relevant expertise. The British Council, for example, has a history of supporting justice reform in conflict-affected countries in Africa, the Middle East, and South Asia, and is currently involved with justice programmes in several important countries which are affected by extremism and instability, including Egypt, Pakistan, Iraq, and Nigeria.

Creating the virtuous circle

In many of these countries there is a mismatch between the laws themselves and the reality of how those laws are enforced. Serious dysfunction at many levels of the justice system includes legal enforcement without the rule of law (where some are ‘above the law’) - which can lead to resentment and instability – and in some cases the complete break-down of legal structures, leaving communities having to dispense unofficial justice or face a violent Hobbesian state of ‘war of all against all’. 

Corruption poses serious challenges for justice systems in many countries, as does the threat of violence against those not willing to pay or accept bribes.  Corruption also increases the need for the rule of law, as functioning justice systems offer a way to challenge criminal behaviour.

Extremism is often correlated with wide-spread feelings of disconnection between ordinary people and the political and justice system

The lack of functioning state justice systems is a significant driver of instability and extremism in many parts of the world. Individuals and communities deprived of recourse to the law see the state as failing them. Tensions build as abuses go unchallenged and people may seek violent redress. The Arab Spring was noteworthy for beginning with protests against police corruption, violence and intimidation. In addition, extremist non-state actors have been able to derive power, legitimacy, and even popularity, from dispensing a form of justice in areas where the state is no longer doing so effectively, or where justice is perceived to be partial or connected to political, religious, or ethnic divisions. Extremism is often correlated with wide-spread feelings of disconnection between ordinary people and the political and justice system. Stronger legal institutions, on the other hand, can lead to a ‘virtuous circle’ of accountability, inclusiveness, stability, and prosperity.

Nigeria provides one interesting example. A recent democratic transition saw the election of President Buhari, who has promised to combat corruption. However, Nigeria faces challenges with corruption and institutional dysfunction and recently came 96th in a world rule of law index. It also faces a massive demographic bulge, high youth unemployment, and violent extremism and instability in many areas including those affected by Boko Haram. 

The UK’s Justice for All programme in Nigeria (implemented by the British Council), provides a powerful case study of support for the rule of law. The programme, which has been running for almost 15 years, supports reform of the justice sector, working with Nigerian counterparts from the entire justice community, including the courts, police, anti-corruption agencies, and civil society. It aims to improve key justice institutions. 

Justice for All has enjoyed a significant impact. After initially collaborating with 3 justice reform teams, including senior Nigerian judges, Nigeria now supports 21 such teams operating around the country on the model first established through the programme. The programme has also established 11 sexual assault referral centres. In their first 18 months, the first two of these centres processed almost 2,000 victims: a testament both to the scale of that problem and to the impact that such interventions can have. The experience of these collaborations also provides important lessons which could be applied in many other countries. 

Lessons from Nigeria

One lesson is that such engagements should be long-term to maximise their impact. Many people previously involved in the Justice for All programme are now reaching positions of influence in the law and politics, including the Nigerian Vice-President. This increases the chances of embedding a culture where the rule of law attracts greater understanding and support. 

Also important is the need for understanding, dialogue, and mutual exchange of ideas. The transfer of model institutions from other countries will not work if they are not suitable for the new context, or do not enjoy the confidence of local people. Indeed, collaboration should be two-way, as Justice for All has shown that the UK itself can learn valuable lessons from the experience of legal practice in other countries, including about mediation and community-based dispute resolution. 

Related to this is the importance of ‘bottom-up’ as well as ‘top-down’ reform. In countries where theory and practice of the justice administration are often disconnected, it is important to focus on real reform at the point of delivery. This requires a more joined-up approach from civil society organisations operating in the area. Localism works well because it achieves ‘buy-in’ from ordinary people who feel they have a stake in the system.

One aspect of this bottom-up approach might be engagement with traditional or local non-state providers of justice, including customary courts in local communities or even vigilante groups. In some places these can be the best functioning aspects of the legal system and have important local knowledge (for example in the context of property disputes in regions with few or no written legal records). Where possible and appropriate those involved need to be treated with equal importance as those working in the formal justice system.

Another lesson is that, given their importance as key foundations of a functioning economy, commercial law and civil justice are often as important as criminal justice for a healthy society and should also be a focus for UK development assistance.

Legal practicalities and case management are also important. But this is not just a matter of procedural reforms. Too often logistical and security difficulties on the ground prevent the proper timely functioning of justice. In some parts of Nigeria, for example, it is estimated that over 80% of prisoners are still awaiting trial. Responses to this can include providing secure ways for judges to visit prisons. But it is critical that interventions are sustainable. 

Support and mentoring for judges is another important factor. Professional bodies in the UK can play a role supporting similar bodies elsewhere. Connections with the many overseas lawyers receiving education and training in the UK can also be improved through, for example, stronger alumni associations. This can create a wide network of global stakeholders with an interest in justice reform.

Finally, justice depends partly on the calibre of people working in the legal system. Better legal education - including for lawyers and judges (an area in which the UK is a world leader) - is vital to this. Public legal education is also necessary to teach citizens their rights and encourage their acceptance of the justice system. Education can change attitudes – for example to violence against women – thus increasing reporting and conviction rates of some crimes and hopefully reducing the incidents of them before the legal system gets involved in the first place. Once the language of law, rights, and accountability becomes more widely known, a momentum towards a stronger rule of law can start to build on its own. 

The experience of Eastern European countries after the fall of Communism proves that profound justice reforms can be delivered quickly

The scale of the challenge across the world is huge. Yet there are grounds for optimism. The results of programmes like Justice for All show that things can improve. And the experience of Eastern European countries after the fall of Communism proves that profound justice reforms can be delivered quickly. 

Rule of law failures can directly affect the UK and its interests. Many countries with justice needs are of security-related and economic importance to the UK. Furthermore, with thousands of young people in those countries connecting to the UK through their legal education as well as via direct involvement in UK-sponsored justice programmes, there are important potential secondary benefits for the UK’s future influence from efforts to assist with justice reform. Such efforts are therefore of clear potential benefit to the UK as well as to the countries involved.

 

Alasdair Donaldson, Senior Policy Analyst and Insight Editor, with thanks to Christopher Marshall, Head of Justice, and Dr Bob Arnot, National Programme Manager (Nigeria), Justice for All, British Council