Alternative dispute resolution: quest for affordable, accessible justice

In societies still struggling to transit from poverty, indigence and illiteracy lock significant portions of their populations into considerable vulnerability.

In societies still struggling to transit from poverty, indigence and illiteracy lock significant portions of their populations into considerable vulnerability. With particular respect to disputes when they arise indigent and illiterate communities tend to fail to resolve them fast, affordably and easy.

Simple and often low value disputes over land, inheritance, gifts, animals destroying crops, breach of trust, small person to person loans, violation of parental respect, child neglect, violation of custom to mention a few, tend to degenerate into long standing conflicts, and assume an existence of their own.

They draw in more and more protagonists, start needless and costly litigation, impoverish already poor families, pit them against each other and children drop out of school.

This situation generates an unfortunate cycle of more poverty, indigence, illiteracy and vulnerability. As the economic development cluster does its best to lift such citizens out of poverty, the failure or inability to resolve disputes, quickly, affordably, nearer and in ways that leave citizens peacefully coexisting with each other continue to consign families to perpetual vulnerability.

We cannot allow indigence and illiteracy to deny our people their constitutional rights to equality before the law and entitlement to equal protection of the law, without any discrimination.

Through the Abunzi Comittees at each Cell and Sector in the country, the citizen forums in each neighbourhood and the Access to Justice bureaus at each District, the Government seeks to empower citizens to overcome the adverse effects of their indigence and illiteracy.

The mix of knowledge of the issues in the localities where the Abunzi work and live, our joint efforts with Civil Society Organisations (CSO’s) to build the Abunzi’s capacities, and the support from the Access to Justice qualified lawyers have already translated into a dispute resolution rate of over 70% overall average. This is the dignity and the Agaciro our Country seeks to achieve through citizen efforts and home grown solutions foremost.

The Legal Aid Forum (LAF) comprises about 2900 paralegals distributed in over 20 member organizations. The Government and LAF layout indeed shows massive complementary capacity. If we continue to organize it and rationalize its distribution, as, no doubt, we shall, the result will be the liberation of our indigent and illiterate portion of the population from being victims of disputes they generate to being masters of their resolution as well.

By linking dispute generation and resolution at the community level we shall have redirected the resources, energies and time spent in endless disputes towards activities that lift families out poverty. Step by step the cycle of poverty and vulnerability will be broken.

Add to this the legal and human rights education, legal aid clinics where citizens are enabled to make informed legal choices, provision of legally allowable assistance to suspected or accused indigent persons before they can access a lawyer or when they wish to represent themselves , our country will inch closer to achieving her access to justice objectives. The gap paralegals will bridge to us, therefore, is pretty obvious and indeed welcome.

The Government will walk with the Legal Aid Forum all the way to free as many citizens as possible from the ever rising cost of litigation. The work LAF is doing fits perfectly within our Country’s EDPRS II and Vision 2020 objectives.

A 2009 Legal Aid Forum research showed that the cost of litigation in formal justice structures was high. I don’t remember whether they also reported that this cost would continue to rise. In my view that should have been an obvious deduction, given the causes of the rising cost the report highlighted.

Recently lawyers ‘ and bailiffs’ fees were reviewed. These are professional bodies whose members render professional services at a cost.

Although lawyers render pro-bono services, it is unrealistic to expect them to make a living from their profession and also to demand that they supply as much pro-bono service as the demand is from indigent litigants.

They have to have a formula that favors more paying work. Realistically therefore, pro-bono work will contract rather than expand. At best it will remain static where it is.

Bailiffs’ fees, under the law, are paid by a judgment debtor who resists amicable execution of a judgment, until he has to be compelled to do it. Fortunately here indigence should not be an issue. I find it inexcusable to resist amicable execution or to fail to enter into a process to amicably execute a judgment whenever it becomes possible. It is an issue of compliance with the rule of law.

Recently the Government revised court fees upwards. The last review was over 10 years ago. The review was based on the current estimated cost of litigation which is around Rwf300,000 per case.

The judiciary, prosecution and the other criminal justice agencies use over 18 billion francs annually and process around 60,000 cases annually. From a cost accounting perspective this cost is a fact arrived at scientifically and cannot change because there are litigants who might not afford it. What can change, is the formula by which indigent litigants obtain justice within the reality of rising costs of litigation.

Currently the Government still pays about 80 per cent of the cost of litigation while a litigant pays 20 per cent. Certified indigent litigants are fully paid for by the Government. Considering equally or more pressing priorities the tax payer shoulders, Government is of view that it is making its rightful contribution to avail justice to the citizens.

This constantly rising cost of litigation in the formal justice channel makes the Alternative Dispute Resolution initiatives even more imperative and urgent.

Ten years of Abunzi have already provided abundant evidence that the dividend is not only delivery of quality and inexpensive justice; geographical proximity, easiness, friendliness and the non-divisive character of the process makes Alternative Dispute Resolution stand out distinctly as the appropriate vehicle for delivery of justice to the majority our citizens.

The Government will remain engaged for the benefit of the citizens and the country.

The writer is the Minister for Justice and Attorney General.

(This article was extracted from a speech delivered at a conference to highlight the role of community and prison paralegals in bridging the legal needs gap within communities.)

 

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