Approach towards Legal Empowerment

Strategic trends
Theory of change
Legal Empowerment
Legal Aid Pyramid
Components of the LSF approach

Strategic trends
Several trends are recognizable in the LSF strategic plan (to be published soon):

• Increased emphasis on the protection of women’s rights.
• An approach towards enhancing legal aid, which includes legal empowerment.
• Increased attention for the sustainability of legal aid.
• Increased attention for and introduction of innovative approaches to legal aid.
• More attention for coordination with (local) government and leadership.
• Increased focus on capacity development of legal aid providers.
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Theory of change
The LSF as a basket fund is trying to contribute to enhanced legal aid provision in Tanzania by granting legal aid providers, including paralegal organizations. This means that the LSF depends on the capacity of legal aid providers to create change and achieve results, which provides the reason that increased attention is being paid to capacity development of these organizations.

Additionally, the LSF works on the basis of the assumption that a population that is increasingly aware of its human and legal rights may start exercising these rights. Therefore the approach described on this page highlights a focus on human rights awareness building and legal education. But an increasingly aware and informed population may not always and in all circumstances be able to take the step towards demanding or obtaining their rights.

Community leadership, whether informal (tribal, clan, religious, political) or formal (local government authorities, law and order institutions, judiciary) may perceive their vested interests are at stake and resist. In the LSF approach they are therefore to be involved in the awareness building and legal education and close collaboration models by and with paralegals have to be developed.

Additionally, communities and individuals need to be assisted to make use of their increased awareness and knowledge of the law. This may imply that they need to organize themselves, in which paralegals may be instrumental, possibly built alliances and learn how to represent themselves and their causes. This process will contribute to legally empowering communities and individuals. During this process local leadership will be involved as much as possible in order to bring them “on board”. It is clear that this will not happen overnight, but is a process of several years.

The above informs the theory of change of the LSF.

Figure 1: The LSF Theory of Change


The blue dots in the blue arrow towards access to justice (A2J) refer from left to right to outputs-intermediary outcomes-outcomes-impact. The text connected to each of the dots just mentions a few examples and is not having the intention or ambition to be exhaustive, but is merely illustrative.

At this point in time, around two and a half years after the LSF became operational, the fund and its implementing partners are in process of achieving or have achieved the necessary outputs. We are also able to increasingly show intermediary outcomes. The basket fund appears to be fulfilling its mandate and is well on track.

At the lowest (output) level the theory of change implies that legal services will be made Available, Accessible, Acceptable, Affordable and the population is made Aware of the services and for what purposes they can be used. These five A’s have been guiding the LSF since its inception and will remain to do so in the period to come.

By the end of 2014 basic legal services provided through paralegals will be available in all (around 160) districts of Tanzania. About 130 of these districts did not have any legal services. In terms of Availability of services a major leap forward has been made. The services are provided by carefully selected and respected members of society and thus Acceptable and are for free and thus Affordable. The Accessibility still represents a challenge in vast Tanzania. Not in each ward of every district where paralegals work, a paralegal is available, while even wards themselves may be very large. In the next phase of the LSF approach the Accessibility will be a major priority. Still the claim is justified that basic legal services have been brought closer to around 35 million people.

Through the national paralegal training developed and quality assured by the Tanganyika Law Society 4,000 paralegals are in different stages of training while already being functional. The training represents a quality boost for paralegal services.

These and other outputs will lead to an increased utilization of paralegal services in Tanzania, of which presently the first indications become visible. Paralegals dealt with more than 25,000 clients in their first year of being operational. The number of cases resolved in a satisfactory manner represent an intermediary outcome (reference is made to the Facts page on this website). The same applies for increased awareness and knowledge about human and legal rights of people, and for objectively measured progress in the legislation and regulation process pertaining to legal aid. A cabinet paper is in advanced stages of the long bureaucratic process towards cabinet approval.

This gives confidence in the route that the LSF has charted. There is still much ground to be covered, but the signs of progress are positive.
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Legal Empowerment
Legal empowerment is a process of systemic change through which poor and excluded people become able to use the law, the legal system, and legal services to protect and advance their rights and interests as citizens and economic actors.
Legal empowerment is anchored in the basic principles of human rights articulated in the Universal Declaration of Human Rights – and the subsequent global and regional international human rights conventions – beginning with Article 1:

“All human beings are born free and equal in dignity and rights”.

Legal empowerment is about making the protections of the law accessible to ordinary people.

 

Nearly all nations endorse human rights norms at least in name, but while governments can be shamed and cases can be won in international courts, these alone cannot address most breaches of basic rights—or help people solve their everyday justice problems.

 



A new mother travels many miles to register the birth of her child only to find that she cannot afford the bribe required for registration; a juvenile is wrongfully detained and loses time in school; several villages’ land is damaged by a mining company without compensation; an illiterate widow is denied the inheritance of land and other property she is entitled to and is forced to move to the city with her young children. By what consistent, systematic means can individuals and communities protect their rights in daily life? (we thank UNDP for parts of the above text)

This is in the view of the LSF what legal aid should focus on. The everyday justice problems can mostly be solved at the community level, either among people themselves or with the help of a third party e.g. a paralegal.

                                                                                 Figure 2: Everyday justice to formal justice

The figure indicates that in any society most justice problems evolve and are resolved between people, everyday justice, or with assistance of third parties, informal justice. An intervention that strives to contribute to legal empowerment of communities strives simultaneously towards increasing the proportion of disputes resolved in everyday and informal justice processes, thus increasing access to justice for as many people as possible.

Success in reaching the goal of solving as many as possible “everyday justice problems” also depends on the ability of communities to participate in their solution, and to hold public institutions accountable. Governments and donors can build clinics and schools. But what if medicines and books aren’t delivered, or nurses or teachers don’t show up to work?

Legal empowerment attempts to address these related challenges. It includes a range of approaches from improving grievance mechanisms, to dealing with breaches in public service delivery, to working with civil society groups, like legal aid providers, to help people find practical solutions for their problems, informed by knowledge of the law.

In its approach to enhance legal aid in Tanzania the LSF combines support for a small corps of lawyers with a larger frontline of community paralegals who are trained in law and the workings of government and who closely collaborate with in particular local government authorities. Paralegals use mediation, counseling, conciliation to address (legal) problems of individual people. They apply organizing, human rights awareness building, legal education, building alliances and advocacy, to assist citizens towards legal empowerment and to increase their capacity to find concrete solutions to instances of injustice.

This enables justice to live beyond the reach of courts, bridging the gap between formal and customary justice systems, and even beyond commonly understood ‘legal’ problems, into the realms of health, education, livelihoods, and other basic needs.

Paralegals are to be connected to lawyers, the possibility of formal litigation and high-level advocacy when frontline methods fail and the recourse through courts appears the only remaining option.

Empirical data collected in many studies about grievance and dispute resolution mechanisms appear to indicate that access to justice may for around 80-90% be defined by the effectiveness of “everyday and informal justice mechanisms”.

It thus appears logic to concentrate efforts and resources of an access to justice approach, such as the LSF, in a comparable proportion on these two mechanisms and to empower communities with the ability and legal knowledge to redress grievances and claims themselves or to assist them in progressing on their path to justice by availing or improving effective community level third party assistance, e.g. paralegals, for dispute resolution.
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The Legal Aid Pyramid
The above empowerment oriented approach is an extension to the principles outlined in the Legal Aid Pyramid below. Both inform the LSF approach towards increasing access to justice for in particular poor women and the vulnerable since its inception in 2012.

Figure 3: The Legal Aid Pyramid


Basic legal services provided through paralegals start with legal information and education. If people gain knowledge that they have rights under the law, they may be able to exercise them. This knowledge contributes to building confidence and can help in solving problems and disputes without recourse to courts, thus contributing to “everyday justice for everyday problems”. It is a cost-effective, empowering strategy, per head of population the cheapest form of legal aid.

Legal advice means that it is explained, in the LSF approach by the cadre of 4,000 paralegals in the country, what the law means and how it can be exercised in relation to a concrete issue. In most cases this is cheaper than higher levels in the pyramid.

Alternative Dispute Resolution (ADR) refers to solving legal problems and disputes making use of other means than the legal/court recourse. One could also think of solving issues through Ward Tribunals, Village Executive Committees, with informal arbitrage or through mediation between parties e.g. with the help of paralegals. This may lead to “informal justice”.

Paralegals mainly function at the two lower levels of the pyramid (educating, counseling, advising, mediating, referring), while sometimes they enter the realm of legal assistance, which means actually helping people to take legal steps to protect their rights.
Often, however, legal assistance may include document preparation, issuing exemption certificates, pursuit of court remedies and the like, which requires the inputs of legal personnel more thoroughly trained than paralegals, e.g. lawyers.

Legal representation, in courts is the most expensive legal service, but sometimes inevitable and necessary. Support to legal representation can be cost-effective, for example in public interest litigation, which can be employed strategically to benefit larger populations. (We thank the Danish Institute for Human Rights for parts of the above text and figure)

A legal aid enhancement strategy in a developmental context, with a view to cost effectiveness, creating a maximum and sustainable impact for an as large as possible population, should in first instance focus on supporting the two lower levels in the pyramid and include legal empowerment approaches.

Additionally, for effective legal aid it is important that cooperative links exist between the persons and organizations providing legal services at the different levels of the pyramid as well as between those working at the same level. This is insufficiently the case in Tanzania.

It is a cry of the heart of many legal aid providers in the country, that better coordination is required among themselves and with the Government at all levels.
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Components of the LSF approach
The components of the original LSF approach still remain to be valid:

A client centred approach to legal aid
Legal aid services need to be demand oriented and address the needs of poor and vulnerable people, with an emphasis on the needs of women. Client and community consultation is required to design approaches to enhance the relevance and quality of legal aid services.

Utilize new information and communication technology (ICT)
Providing legal services in Tanzania is a challenge due to the vastness of the country. This also contributes to relative high costs for legal aid. Therefore, innovative approaches using ICT need to be tested and adopted to better accommodate poor and vulnerable people. The use of websites, portals, mobile phone messages, smart phones and the role the internet and social media can play to provide effective and efficient legal aid deserves to be explored and tested. More than 50% of the rural population has access to mobile phone and this is rapidly increasing. In urban environments this access is considerably higher.

Explore and extend the role of the traditional media
Access of the population to radio, television, news papers and other media is increasing every year. Media have been used in promoting human rights and legal aid. Enhancing the reporting capacities of media on legal and human rights issues is important to increase awareness among the people and to improve quality and quantity of legal aid services. The LSF is piloting a community and regional radio approach in support of the paralegal services and if successful may extend this to a national scale.

Extend the use of existing social networks
Trusted and familiar existing social networks have proven to be a cost effective way of mobilizing community members around access to legal education. The LSF will promote more extensive use of existing social networks.




Paralegal in Morogoro
in legal education session


 

 

Increasingly involve actors beyond the circle of the legal profession
Wide participation of different sections of society increases the likelihood of sustainability of legal aid services. Teachers, social workers, social scientists, CSOs working in other fields, community organizers, local government authorities, religious leaders and persons with other than legal skills, can make substantial contributions to building awareness about human rights, the law and legal aid.

Improve communication and coordination among LAPs
Promotion and improvement of communication among legal aid providers (LAPs) between them and the Government will be a cornerstone of the LSF approach. For optimal utilization of scarce resources for legal aid improved coordination is a necessity. The recently created Legal Aid Secretariat appears to increasingly fill the coordination void.

Ensure financial sustainability of legal aid services
Running legal aid schemes costs money, both for legal aid providers and for the government. Legal aid providers depend to a large degree on external resources to implement their activities. Alternative ways of financing legal aid need to be investigated and experimented. Also the LSf depends on external funding and calls on donors and other to join the basket fund.

Strengthen collaboration with LGAs, local judiciary and other (in)formal dispute resolution mechanisms
Ward tribunals and village governments resolve disputes arising within their jurisdiction. Programming for legal aid delivery needs to take these and other options for dispute resolution into consideration, also in order to release the burden on courts at different levels. Close collaboration with (local) government authorities is one of the cornerstones in the LSF approach.

Chief Justice Zanzibar, Omar Makungu, explaining the legal empowerment approach

Advocate for more governmental support to legal aid
The Government of Tanzania has in an international context as well as in its expressions of national intentions confirmed that it accepts its responsibility for legal aid. A sustained and well prioritized advocacy approach may stimulate the Government to substantiate these intentions into a policy, legal and regulatory framework and budget provisions that facilitate the provision of legal aid.
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