Informal Injustice? Customary Mechanisms and the Emerging Role of Community Paralegals

We’re excited to share a fantastic guest post on informal justice mechanisms and the role of community paralegals from Akhila Kolisetty, OSF Fellow & Human Rights Lawyer

In June 2016, a 13-year old girl in in Kasganj district, India, supported by her father, attempted to report that she was raped by a neighbor’s son. However, the local khap panchayat – an unelected, all-male village council of elders that often resolves local disputes – offered the victim Rs. 50,000, pressuring her to refrain from filing a report against the accused with the police and to let him go free.[1]

These kinds of stories are unfortunately all too common, with informal, customary, or traditional justice mechanisms in diverse contexts applying punishments or settling disputes in ways that contradict international human rights, especially when it comes to rape, domestic violence, or sexual abuse of women and girls. Such informal mechanisms exist at the grassroots level in a number of countries, and take the form of shalish in Bangladesh, the bulubulu in Fiji, or the bashingantahe in Burundi, to name a few. Such mechanisms are often informal councils of elders or respected leaders from the community. These non-state justice mechanisms exist alongside the formal court system, but are often preferred by low-income litigants – particularly in rural areas – due to the convenience they offer. The formal justice system can be extremely costly, distant, slow, and confusing to poor litigants, who may not understand how to navigate these complex systems, even if they can afford a lawyer. Out of necessity, many thus turn to non-state justice systems; these mechanisms are often cheap, easily accessible in the village or community itself; and often have local legitimacy, given that many in the community trust the words of local leaders or elders. Yet, as we have seen, the outcome is often unjust towards women, with informal justice mechanisms frequently urging compromise in rape, sexual assault, and domestic violence cases, in part because their goal often is to promote social harmony and peace, rather than ensure justice for victims.

One intervention that can help address these challenges may be the use of community paralegals, who take a ‘legal empowerment’ approach to work with women at the grassroots level. Community paralegals can educate women and other community members about the law and their rights; inform victims about options for redress; advocate for and with them in forums ranging from police stations to local courts; and know when to and when not to mediate disputes. Paralegals can play a particularly useful role in helping women navigate the formal and informal systems, and can serve as a “check” on any abuse or corruption that local authorities or leaders might engage in. Often, the police, customary leaders, or local authorities are much more hesitant to engage in abusive, corrupt, or coercive behavior when paralegals are present and advocating for victims. In addition, paralegals can educate these local leaders about the law and prompt (or pressure) them to change their practices where they are acting contrary to human rights. In some cases, such training and support in itself might cause a change in practice. In addition, as paralegals become a more popular choice and gain the trust of the community, they become a realistic alternative to informal justice mechanisms, thus reducing the influence of those non-state systems and weakening them.

In Bangladesh, development organization BRAC has community paralegals (shebikas or odhikar shebis) in 61 of the country’s 64 districts, and over 500 legal aid clinics. In sum, the organization has 6,000 shebikas who teach community human rights classes and help monitor for human rights violations in communities, resolving disputes where possible and connecting victims to legal aid where necessary. In a nationwide survey, only 19% of participants noted that legal services were available in their area. However, of these respondents, 26 percent mentioned BRAC legal services, 21 percent mentioned local government representatives, and 12 percent stated that teachers and religious leaders were the main sources of legal aid in their communities, demonstrating that BRAC’s community paralegals and legal aid programs were becoming a real alternative to other informal justice in the community.[2]

Another example from a paralegal program from Zambia illustrates the impact paralegals can have on local leaders and authorities. In Zambia, some village headmen explained that training and education from Law and Development Association (LADA) paralegals helped them understand statutory law and human rights; one headman noted that he believed that the paralegal’s role in dispute resolution had become the equivalent of the headman’s role, and that the two should work together to address local disputes. Thus, training, support and the building of trust with community paralegals can contribute to changing the approach of customary leaders and mechanisms.[3]

While more study is needed to better understand how community paralegals interact with and affect the operation of informal non-state justice mechanisms, such early anecdotal evidence shows there is likely a positive ripple effect of bringing community paralegals to support victims’ rights at the local level.

[1] Times of India, http://timesofindia.indiatimes.com/city/agra/Khap-panchayat-offers-Rs-50000-to-rape-victim-to-let-off-accused-in-UPs-Kasganj/articleshow/52591049.cms.

[2] Activating Village Courts in Bangladesh Project, “Baseline Survey Report on Village Courts in Bangladesh” (Dhaka: Activating Village Courts in Bangladesh Project, 2010), iv.

[3] https://reinventingtherules.files.wordpress.com/2013/04/law-and-development-paralegal-program-zambia.pdf, p. 32.

Akhila Kolisetty is a recent graduate of Harvard Law School, and a current fellow at Open Society Foundations. She studies and works in the area of legal empowerment, access to justice, and ending gender-based violence, and is particularly interested in methods of expanding holistic access to justice to survivors of gender-based violence, through both informal & formal means.

You can read more from her on her blog Journey’s Towards Justice