43684 Questions? Contact j4p@worldbank.org September 2007 Volume 1, Issue 4 Barriers to Justice in Sierra Leone by Pamela Dale* Introduction: Justice in Sierra Leone Sierra Leone operates under a bifurcated transparency and consistency that may What is J4P? legal structure which incorporates both serve to further marginalize underserved Justice for the Poor (J4P) elements of traditional or customary law populations2. Typical justice reform is a global research and and a formal system based on English efforts, which work primarily with formal development program common law. Currently, 85% of Sierra justice systems, may put in place reforms aimed at informing, Leoneans fall under the jurisdiction of that are not relevant to a wide swath of designing and supporting customary law, and traditional systems the population. A comprehensive pro-poor approaches to remain the primary avenue for redress of approach to justice reform requires justice reform. It is an violations of rights or law.1 Yet, for many understanding of and engagement with approach to justice reform outside actors, there is a lack of clarity as customary systems. The World Bank's which: to how and why Sierra Leoneans decide · Sees justice from the Justice for the Poor program is an where to pursue justice. There is even less perspective of the attempt to contribute to this comprehension of the workings of the poor/marginalized understanding through its research and various informal systems used by the development programs in Sierra Leone. · Is grounded in social majority of citizens. and cultural contexts *Adapted from Dale, P. (2006) Access to Justice in Sierra Regardless of where Sierra Leoneans Leone: A Review of the Literature. World Bank 1Kane, M. et al. (2004). Sierra Leone: Legal and judicial sector · Recognizes the pursue justice, literature reviews and assessment. World Bank. importance of demand recent studies have found barriers to 2The World Bank Group. (2006). Govment bizness na in building equitable access and problems with equity, wi bizness: Building demand for good governance and enhancing conditions for social accountability in Sierra Leone. justice systems · Understands justice as Barriers to Justice a cross-sectoral issue Sierra Leoneans attempting to access the effects of conflicts that are small by justice through the country's complex legal western standards, and also amplifies the system are presented with a number of costs of recovery. The costs of accessing barriers. These obstacles can be broadly justice in Sierra Leone come in a variety broken down into those that are the results of forms, including direct costs of of the system's costs (including costs of services, fines, time, and transportation. services, fines, time, and transportation) or structure (court infrastructure, skills of Direct Costs. In Sierra Leone's formal officials, and lack of ownership), or, in the courts, where an inadequate legal aid case of the formal justice system, its structure makes contesting parties incompatibility with social norms. responsible for court fees, legal representation, and other service fees, Cost-Related Barriers costs are prohibitively high for all but the One of the foremost barriers preventing wealthiest of citizens2. Yet even in local access to Sierra Leone's justice systems, courts, which are designed to be "closer both formal and informal, is cost. With a to the people", interviews suggest that GDP per head of $548 in 20051, Sierra costs are often too high to encourage Leone is one of the world's poorest use3. nations. This extreme poverty magnifies Barriers to Justice, Continued Fines. While Sierra Leonean law imposes understood by many even in the capital - and strict limits on fines charged in customary the language is heavy in legalese. Unlike the law cases4, enforcement is exceedingly customary courts, the formal courts maintain difficult given the lack of central control over procedural rules that are known to court customary courts. Because of the irregular insiders such as judges and lawyers, but and inadequate funding provided to remain a mystery to many individuals outside Chiefdoms by the government, court fees the legal system. make up a substantial portion of municipal budgets5. Like customary law itself, the rules Views of Justice. While formality and for fees and fines in customary courts are language present obstacles to justice in the "Justice goes to unwritten (though the Local Courts Act formal courts, these procedural limitations provides some guidance), and many Chiefs are smaller manifestations of a larger the highest bidder. were found to distribute arbitrary fines, often disagreement on the meaning of "justice". in a discriminatory manner6. Definitions of "criminal behavior", In one survey, "corruption", and other legal terms differ Time. Both the formal and (to a lesser widely between the customary and formal 80% of Sierra extent) the informal legal systems are systems8. The accepted penalties for thought to raise prohibitively long delays in violations of social order also vary. While Leoneans believed the resolution of cases. Especially in rural customary law is based in traditions of areas, where the majority of the population restorative justice and community cohesion, that there were is engaged in agricultural activities, frequent which prioritize restitution followed by absences from the land bring significant community healing, the formal system two interpretations opportunity costs. emphasizes retributive justice9. of law ­ one for Transportation. Transportation presents a Court Buildings and Personnel. Symbols formidable obstacle to accessing the formal of authority, including court structures, were the rich, and one courts, particularly for citizens in remote targeted during the civil war10. As a result of areas7. The limited number of functioning both war and time, many court facilities were for the poor." magistrates courts are based in district left in a state of disrepair, and despite the headquarters, which are distant from many considerable effort and success of such villages. With minimal access to adequate initiatives as the GoSL's NaCSA program and roads or vehicles, many inhabitants of rural the DfID-funded Justice Sector Development communities find it physically and financially Programme, some have yet to be rebuilt impossible to access the formal courts, outside of urban centers. Additionally, in both especially for cases that can take several the formal and informal systems, a lack of visits to provincial capitals to resolve. management oversight and limited opportunities for appeal mean that the Structure-Related Barriers effectiveness of the courts depends largely The structure of the formal and informal on the skills and personalities of the local courts also presents a barrier to access. court officials or Chiefs11. Here, the term "structure" is used to express both elements of the court procedures Social Barriers (formality, language, views of justice) and In addition to cost and structure, Sierra the current state of the courts (skills of Leoneans encounter "social" obstacles to officials, some court buildings). While the justice in the court systems. Social barriers first category primarily affects access in the are those that arise from a lack of formal courts system, the second can be information, or from perceptions of the role encountered across the justice system. of the justice system. Formality and Language. With its basis in Lack of Information. During recent English law and legal procedure, the state attempts at justice sector reform, analyses justice system in Sierra Leone is very formal have found that many Sierra Leoneans are in its rules, processes, and appearances. not aware of what the laws ­ either formal or Court proceedings take place in English, customary ­ are12. While customary law is which is not widely understood outside of traditionally bound in customary practice, Freetown and its environs ­ and is not well many Chiefs passed new laws without informing the public13. Citizens are even less Publication, Freetown, Sierra Leone. likely to know the content of formal laws, and 4Fanthorpe, R. (2004). Chiefdom Governance Reform Programme Public Workshops: An analysis of facilitator's reports. DfID. London. recent legislation and court rulings are reportedly 5Thompson, N. (2002). In pursuit of justice: A report on the judiciary in difficult for even legal professionals to access. Sierra Leone. Commonwealth Human Rights Initiative. Vol. 9:2. 6Ibid 4. 7Ibid 3. Perceptions of Bias. Interviews with Sierra 8Thompson, B. and G. Potter. (1997). Government corruption in Leoneans, both in Freetown and in the provinces, Africa: Sierra Leone as a case study. Crime, Law and Social Change. yield a frequently-held belief that justice goes to Vol 28, No 2, 137-154. 9Maru, V. (2006) Between law and society: Paralegals and the the highest bidder14. In one study, 80% of provision of justice services in Sierra Leone and worldwide. The people surveyed believed that there were two Yale Journal of International Law. Vol 31:2, 427 - 476. interpretations of law; one for the rich and 10Bellows, J. and E. Miguel. (2006). War and institutions: New evidence from Sierra Leone. American Economic Association Papers and another for the poor15. Proceedings. 96(2), 394-399. 11Department for International Development. (2004) Identifying 1Economist Intelligence Unit. (2006). Sierra Leone Country Profile 2006. options for improving chiefdom and community governance in Sierra Leone. London. London, UK. 2GoSL. (2003). Sierra Leone national recovery strategy assessment: Final report. 12Ibid. Freetown. 13Ibid 4. 3Alterman et al. (2002). The law people see. The statute of dispute resolution in 14Ibid. the provinces of Sierra Leone in 2002. National Forum for Human Rights 15Ibid 8. Marginalized Populations The barriers to access to justice presented above who are defined as those between 18 and 35 impact all Sierra Leoneans, though to varying years of age, make up 34% of the degrees. While not universally true, some population2. Despite their strength in "The key non- individual characteristics of community members numbers, youth frequently have less claim to are also associated with greater inaccess. These citizenship and less voice in community discrimination include, inter alia, gender, age, association with decision-making structures than their elders3. clause in the fighting forces, urban migration, "stranger" Their lack of standing in the community, classification, and ethnicity. While any or all of coupled with common perceptions of youth Constitution these characteristics may increase inaccess, it is as irresponsible and disrespectful, have contains a important to note that is very difficult to placed youth at high risk for exploitative distinguish a social hierarchy, and one cannot jurisprudence, and their access to justice is specific determine vulnerability solely by analyzing a list further limited by processes that tend to exception for of personal characteristics. favor older defendants4. laws `with Gender. Women face increased barriers to Association with Fighting Forces. At the respect to access in both the customary and common law end of the twelve-year civil war, communities systems. Though women are afforded some in Sierra Leone were left grappling with the adoption, degree of equality and protection in the 1991 aftereffects of atrocities committed against marriage, Constitution of Sierra Leone, these constitutional them by combatants, many of whom were guarantees do not always translate to equal very young and some of whom perpetrated divorce, burial, access or opportunity in the judicial or social violence in their own villages5. Many ex- devolution of sphere. In fact, the key non-discrimination clause combatants disarmed post-war, and/or in the Constitution, which prohibits any law that participated in the Truth and Reconciliation property, or is "discriminatory either of itself or in its effect" processes, where they have offered other personal contains a specific exception for laws "with explanations and apologies for their actions respect to adoption, marriage, divorce, burial, during the war . However, there remains a 6 law' ­ many of devolution of property on death or other personal legacy of tension and distrust between those matters law" ­ many of those matters which are of the communities and those associated with greatest importance to women1. These matters fighting forces. This residual distrust may which are of are thus subject to discriminatory application lead to high-risk or illegal behavior or more the greatest without adequate avenues for redress. frequent accusations of crimes, and may impede access justice7. importance to Age. Sierra Leonean society is hierarchical, with women." clear divisions in power and authority between Urban Migration. The population of youth and elders, and this divide has contributed Freetown grew 217% from 1985 to 2001, as to both small- and large-scale conflict. Youth, Marginalized Populations, Continued economic opportunity and conflict drove subject to debate, many analysts have migrants from rural areas to the relative shown that the various fighting forces safety of the city8. Young Sierra Leonean exploited ethnicity as a recruitment refugees, raised in displacement camps, tool14. While the recent GoBifo/ENCISS/ came to Freetown in large numbers at the Decentralization program survey end of the war seeking non-agricultural revealed differences in respondents' employment. However, un- and satisfaction with the resolution of underemployment remain high throughout disputes and conflicts based on their Sierra Leone. Insufficient employment ethnicity, the role of ethnicity in dispute opportunities, combined with disruption of resolution and access to justice in Sierra social and cultural ties to migrant's home Leone is still unclear15. communities, can result in a rise in crime and violence as a source of power and 1GoSL. (1991). Constitution of 1991. 2The World Bank Group. (2006). Draft consultations "Preliminary field position9. with youth in Sierra Leone. 3Fanthorpe, R. (2001). Neither citizen nor subject? work has found Strangers. There are frequent references `Lumpen' agency and the legacy of native administration in Sierra Leone. African Affairs, some level of tension in the literature to what anthropologist 100:400, 363-386. Richard Fanthorpe refers to as the 4Ibid. between youth and "extreme localization of criteria of identity 5Ibid. 6Malan, M. (2003, March). The challenge of justice elder community and belonging"10 in Sierra Leone. and reconciliation. Sierra Leone: Building the road to "Stranger" status can persist for recovery, ISS Monograph No 80, Pretoria: Institute members in virtually generations, and is often ascribed to or for Security Studies. 7Lloyd, C., editor. (2005). Growing up global: The every research site." adopted by individuals whose ethnic changing transitions to adulthood in developing countries. identity is different from that of an area's National Research Council. original inhabitants ("indigenes"). Rights 8Sommers, M. (2003). Urbanization, war, and Africa's youth at risk: Towards understanding and addressing future and property in rural areas are conferred challenges. Basic Education and Policy Support as both a result and validation of Activity and Creative Associated International. citizenship, and strangers in a community 9Ibid 7. 10Ibid 3, pg 372. must frequently form relationships with 11Reno, W. (2003). Political networks in a failing indigenes, through marriage or the state: The roots and future of violent conflict in patronage system, in order to gain some of Sierra Leone. Internationale Politik und Gesellschaft, 10, No. 2, 66. the benefits of citizenship11. Insufficient 12Richards et al. (2004). Social capital and survival: family or social connections are thus a key Prospects for community-driven development in post-conflict Further Information source of vulnerability and poverty12. Sierra Leone, World Bank: Social Development Papers No. 12. 13UNOCHA, IRIN News. (2007). Republic of Sierra Leone: Humanitarian country profile. Visit our website: Ethnicity. Sierra Leone is home to 14Keen, D. (2003). Greedy elites, dwindling www.worldbank.org/justiceforthepoor approximately twenty distinct ethnic resources, alienated youths. The anatomy of groups, exercising unique traditions of protracted violence in Sierra Leone. Internationale Politik und Gesellschaft, 2. Questions? social control and delivery of justice13. 15 While the role of pre-existing ethnic Manning et al. (2006). Crime and conflict statistics from the GoBifo/ENCISS/ Decentralization survey. World Bank tensions in Sierra Leone's civil war is Group, Washington, DC. E-mail: j4p@worldbank.org Conclusion There is much to be learned in order to efforts led by local and international civil understand the exercise of law and justice society, international organizations, and in Sierra Leone, and much to be gained by formal and informal institutions in an pursuing research at this point in time. The effort to improve and enhance access to World Bank's Justice for the Poor program justice for the poor. will continue to engage with justice reform Justice for the Poor Briefing Notes provide up-to-date information on current topics, findings, and concerns of J4P's multi-country research. The views expressed in the notes are those of the authors and do not necessarily reflect those of the World Bank.