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Doing Justice: How informal justice systems can contribute
Executive Summary

This paper is for practitioners working on access to justice. It presents a case for UNDP to increase its engagement with informal justice systems so that we can better strengthen access to justice for poor and disadvantaged people.

The formal justice system for the purposes of this paper involves civil and criminal justice and includes formal state-based justice institutions and procedures, such as police, prosecution, courts and custodial measures. The term informal justice systems is used when referring to dispute resolution mechanisms falling outside the scope of the formal justice system.
Consistent with UNDP’s strong commitment to the Millenium Declaration and the fulfillment of the Millenium Development Goals, access to justice is a vital part of UNDP’s mandate. Access to justice is essential for human development, establishing democratic governance, reducing poverty and conflict prevention.
Justice sector reform is a rapidly expanding area, however informal justice systems still remain largely neglected by UNDP and most multi-lateral and bi-lateral development assistance. This is somewhat surprising as the poor and disadvantaged are infrequent users of the formal justice system and UNDP’s specific niche lies in ensuring access to justice for those who are poor and disadvantaged.
Informal justice systems are often more accessible to poor and disadvantaged people and may have the potential to provide quick, cheap and culturally relevant remedies. Informal justice systems are prevalent throughout the world, especially in developing countries. They are the cornerstone of dispute resolution and access to justice for the majority of populations, especially the poor and disadvantaged in many countries, where informal justice systems usually resolve between 80 and 90 percent of disputes.
Given the prevalence of these systems and the fact that so many people access them for their justice needs, the support to informal justice systems is very limited. Most development assistance is channelled to what is referred to as the ‘rule of law’ approach. This type of approach has generally not focused on issues of accessibility, has tended to focus on institutions rather than people, has been top-down, has generally not been successful in improving access to justice for poor and disadvantaged populations, and has not been cognisant of where people actually go to seek justice.
UNDP’s support to the justice sector has almost doubled over the past six years, from 5 countries reporting programming on human rights or the justice sector in 000 to 95 in 005. Support to informal justice systems has increased slightly, but remains minimal in comparison to formal justice systems.
There is no denying that support to enhance the rule of law and improve the functioning of the formal justice institutions is crucial, however given the slow pace of reform, it is increasingly recognized that technical top-down fixes alone will not suffice to improve access to justice in many countries.
In post-conflict countries, where formal mechanisms may have completely disappeared or been discredited, informal systems of dispute resolution may be crucial to restoring some degree of law and order, and they may be all that is available for many years.
If there are no viable means of resolving societal disputes, the alternatives are either violence or conflict avoidance – which in itself is likely to lead to violence later. Informal systems are usually the primary means of resolving disputes in many countries, as such their effectiveness determines whether they can be resolved in a peaceful way or whether they will descend into violence.
However, informal justice systems are no panacea. Despite informal justice systems being widely viewed by many as the most likely way of achieving an outcome that satisfies their sense of justice, there are situations in which it falls well short of realising that ideal. Informal justice systems are often discriminatory towards women and disadvantaged groups, do not always adhere to international human rights standards, are suceptible to elite capture and the quality of the justice is often dependent on the skills and moral values of the individual operator.
Despite the challenges, this paper concludes that engaging with informal justice systems is necessary for enhancing access to justice for the poor and disadvantaged. Ignoring such systems will not change problematic practices present in the operations of informal justice systems. It is of course very important to take all concerns seriously. Any initiatives undertaken should work towards gradually enhancing the quality of dispute resolution and addressing the weaknesses faced by informal justice systems. Such initiatives should be part of a broader, holistic access to justice strategy, which focuses on achieving the broader goal of enhancing access to justice by working with both formal institutions and informal justice systems.
It is important to remember that situations vary from country to country, therefore there are no templates that identify generic entry points for access to justice programming. In order to choose an entry point, we must analyze the situation in relevant sectors and identify catalytic actors and institutions. Needs assessments are a good entry point. The challenge is to learn from other experiences (in particular, those from developing countries that have overcome similar challenges) but also to provide customized solutions for particular situations. A review of existing initiatives and potential recommendations for engagement with informal justice systems are provided in the final chapter of this paper.
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