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“Justice for sale”

18 July 16

The author, back from promoting access to justice in Malawi, appeals for support to extend the scope of her projects working for those who are regularly denied justice

by Jennifer Escott

Every day, people with heartbreaking stories queue up at the door of our drop-in centre in Mzuzu. Some have walked miles with several infants, others got buses from distant towns, but all are seeking justice. Some cases are big human rights issues, but many people are simply trying to enforce their rights to achieve basic things and face insurmountable barriers to do so.

This year we have assisted dozens of children who were trafficked to return home; withdrawn many girls from child marriages, and indeed facilitated the first prosecution of a child marriage case in the north; filed and won numerous employment cases, domestic violence cases and land cases; intervened in cases of torture, witchcraft and abandoned children; and mediated many many minor disputes.

Access to justice: making the difference

In northern Malawi there is currently one operational legal aid lawyer. When more than 95% of the population of almost 2 million is “poor” or “ultra-poor”, one can see that on the lawyer-client ratio alone, access to justice is limited. However courts are also severely underresourced, as are the law enforcement agencies. A culture of impunity prevails, and with endemic corruption one cannot speak of the rule of law. Customary law has been compromised and corrupted. As one of the judges told me, justice is for sale. Bullies and rapists flourish. Exploitation is rife. If I can cite jurisprudence, one only has rights if they are enforceable. Though human rights organisations educate people and especially women on their rights, the reality is that few people have them.

Our centre offers a service I like to call legal aid plus plus. This means we offer legal advice and assistance as well as an accompaniment service, access to a trauma/psychological counsellor and, what is key, logistical services where required. We found this enhanced service is necessary to (1) address the lack of understanding on rights and knowledge of the law; (2) overcome the way poor people are treated; and (3) manage the lack of welfare and social services. We took some ideas from two projects in Glasgow, the domestic violence court model with ASSIST and the legal assistance model developed at the then Women & Children’s department at Legal Services Agency, and put them together with the experience of running legal aid centres in Afghanistan and Sri Lanka.

Thus, we advise clients, counsel clients, represent clients; we go with them to chiefs, police, court and prison, and we go for them when they cannot and advocate for them; we help them, we find them somewhere to stay, we pay court fees, we pay their transport and that of their witnesses; we facilitate the police to make arrests, we facilitate the magistrates to take their court out to the rural areas; and we monitor courts, police and prisons. We also mobilise community paralegals and work with chiefs to revise customary law and push certain cases into the criminal justice system.

A few case examples

  • We assisted a young girl with a wee baby, who had been married off twice by her stepfather after a number of years of him abusing her. This was well known in the village and the chief had tried to intervene but to no effect. The case came up as her parents now wanted her back, it seems because the new husband had not paid enough dowry. We facilitated the police and court to find the girl and arrest the stepfather. We counselled the girl, accompanied her to court and accommodated and fed her. Her stepfather was convicted.
  • We assisted a lady to separate from her abusive husband who was an army commander. The CO warned and bullied the lady not to leave, and told her that protection orders under the Domestic Violence Act were not the real law. She was not allowed to take her things. When her husband was detained at the court, army officers came and shouted at the magistrate. Her husband was ordered to let his wife go, and to pay money to his wife under a protection order; the army was told to bring her belongings to the court. They did.
  • We facilitated the court to make a site visit and therefore judge a simple land case which had been sitting in the court for three years.
  • We assisted some villagers to go to court whose land had been given away by a notoriously corrupt chief. The court ruled that the paramount chief had to intervene.
  • We represented a man in the labour court who had been tortured by the police at the request of his employer after he had complained of being unfairly dismissed. The court said he had no case due to his confession, cited by the employer’s lawyer. (The police had refused to investigate. Another lawyer had said he was obviously just lying.) We won the case after the judge realised the sequence of facts, heard from the parties and saw the confession was not a properly prepared police document.

No rights, no progress

We believe that there can be no development without the rule of law. If girls are to go to school, they cannot if they are abducted or married off as young teenagers or made pregnant by their teachers. If women are to speak up or do business, they cannot if they are prevented from going out of the house or beaten for taking up employment or taking on a leadership position. If men are to provide for their families and pay their kids’ school fees, they cannot if they are not salaried or their employer pays them below the minimum wage.

Moreover people cannot sustain themselves if their land is grabbed; people cannot access clean water if the pump parts are stolen; and people cannot benefit from health services if the medicines are stolen and patients are abused and beaten. If people are to prosper, they cannot if their reverends abuse them and keep them down. If people are to demand accountability, they cannot if they are intimidated to speak out.

We believe that an effective way of establishing the rule of law is to enforce people’s rights on a case by case basis. We have seen that when people experience justice and others see justice done, they demand more from their leaders including accountability. When the wheels of justice turn, impunity is decreased, corruption is decreased, gender based violence is decreased, child abuse is decreased, exploitation is decreased, while at the same time human rights are increased, equality is increased and people experience true peace. With the rule of law a virtuous cycle is created and development can proceed.

Accordingly, we are in the process of setting up a legal development charity to support grassroots legal services in Malawi and a number of other countries. Especially after the Commonwealth Law Conference in Glasgow last year it seems there is a place for a Scottish contribution to such work. Key is to have legal professionals from Scotland and other countries on the ground to support local lawyers and paralegals. Anyone interested in any aspect of this work, or indeed in supporting the project in Malawi or this new venture, is warmly invited to get in touch.

Jennifer Escott is a human rights lawyer who has just returned from three and a half years working in Malawi. Previously she worked in Cambodia, Afghanistan, Sri Lanka and Rwanda, as well as in Glasgow, London and Hong Kong. She can be contacted at jr2escott@yahoo.com or on LinkedIn.

 

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