Discover the Latest Innovations and Lessons Learned in Rule of Law and Democracy Projects
In its autumn publication, the Open Society Justice Initiative published several articles and case studies on legal empowerment. I thought ‘Sustaining the Process of Legal Empowerment’ by Robin Nielsen had particularly revealing strategies and successful country examples. Check out excerpts below!
This article considers some of the factors that influence the sustainability of legal empowerment programs and processes. What principles, elements of program design, and funding models support the continuation of empowerment processes over time? Legal empowerment as a concept remains slippery, despite a growing body of literature focused on it. Multiple origins have naturally led to a protean concept. Legal empowerment emerged as a general term to cover a wide range of activities that use law to benefit the disadvantaged, as a reaction to perceived limitations in rule of law projects that target the reform of state institutions, and as a rights-oriented strategy for poverty alleviation.
Design Principles Supporting Sustainable Empowerment Processes
Several established principles of program design can help sustain the empowerment process. These include: (a) control by the intended beneficiaries, (b) responding to clients’ changing needs and priorities over time, (c) a broad programmatic base, and (d) providing concrete benefits to clients. These principles are, of course, far from novel. However, they deserve renewed attention because, while designers often invoke these principles in program design, they can be challenging to implement because they require significant local knowledge and engagement from the time of program design (often well before funding is certain) and throughout the life of the project.
The first principle, that sustainability requires being need-based and client-driven comes from the fact that legal empowerment initiatives distinguish themselves from more traditional rule of law projects by their focus on marginalized populations and the active engagement of those populations in project design and implementation. That bottom-up, demand-driven approach is essential to the exercise of agency and sustainability of empowerment processes. Comparative studies from multiple countries and legal environments repeatedly find that tailoring legal services programs to the identified needs of the clients and allowing clients to direct the provision of services gives them the greatest sustainability. Experience from general empowerment programs echoes this conclusion. Nonetheless, despite such compelling findings, true client-driven programs are rare.
Legal professionals dominate many interventions that have significant legal content, and it’s tempting to identify an initiative’s proposed legal services based on what the legal system and legal professionals can offer, which limits the potential for empowerment. Yet where program planners resist that temptation and allow communities to shape program content, indications of empowerment begin to emerge. In Sierra Leone, the NGO Timap for Justice’s paralegal program uses Community Oversight Boards to help identify local legal needs, ensure that the paralegals address local priorities, and hold the paralegals accountable for the delivery of appropriate services. A World Bank study of the program describes positive legal empowerment outcomes: community members report that the paralegal services introduced them to methods of navigating legal procedures and community members gained the knowledge and confidence to pursue other legal rights and additional issues of importance to their families and communities in various forums.
The second principle, that broad-based and integrated programs have an advantage, refers to programs where the basis of power is political, economic, and social. Initiatives that recognize these separate spheres and support the development and application of skills and experience across them through the creation of complementary assets and support in different institutional environments expand opportunities for program participants and support the continuation of the empowerment process. As an example, an HIV/AIDS health program in Kenya broadened the support for its patients (and the empowerment potential) with the addition of a legal clinic. The local, integrated legal services support helped individuals suffering from HIV/AIDS to assert their rights in the workplace, apply for public assistance benefits, and control their household assets through succession planning.
Challenging existing power structures, by, for example, providing daughters with equal rights of inheritance can be risky. Embedding empowerment processes within a larger programmatic structure, such as the healthcare program in Kenya, may de-emphasize activities that challenge power bases and provide individuals and groups with ongoing support that encourages continuation of the empowerment process.
The third principle, that programs should provide concrete benefits, rejects the assumption that simply achieving legislative reforms or transmitting information about legal rights inherently empowers the disadvantaged. While certainly valuable, these kinds of institutional reform and asset-building activities by themselves tend not to change behavior or alter power relationships. Legal literacy programs, for example, may build community awareness of a right to associate freely, but absent a trade union or other tangible experience of that freedom, this awareness may offer limited empowerment. In the Indian state of Karnataka, a local NGO, Samarasa, found that simply introducing the concept of marital property did little to assist married couples in appreciating the benefits of joint or individual ownership of certain assets. However, introducing the concept of titling in connection with new housing benefits gave couples a context for legal rights and the distinction between joint and individual ownership. Women used their control over titling of new housing to negotiate with their husbands for space for income-generating activities, to seek credit from a bank, and to plan for their children’s inheritance
Approaches Supporting Sustainable Legal Empowerment Processes
The approaches used in implementing legal empowerment strategies often influence the sustainability of empowerment. Experience with empowerment initiatives suggests that two approaches in particular help sustain the process: (a) those that build communities of interest and support collective action; and (b) those that develop and mobilize local knowledge and capacity.
Building communities of interest and collective action can help sustain the process of empowerment. When operating individually, remote communities or disadvantaged individuals may not have the capacity to overcome social and economic barriers restricting the exercise of their legal rights and choices. Whether a water user committee, a labor union, or a class of people a legal aid clinic identifies as having a common legal interest, groups can help provide individuals with critical psychological support. Groups also allow for pooling of resources, create forums for learning, and give individuals a space to have their voices heard.
Initiatives designed to develop and mobilize local knowledge and capacity continue the process of empowerment by their very structure. Law school clinical programs, legal internships and apprenticeships, and community-based paralegal programs can deliver legal and related services to disadvantaged individuals and communities while simultaneously building local capacity to serve these functions over the long term.
Supportive Financial Structures
A report by the World Bank describes the lack of consistent, predictable financial support as one of the greatest barriers to the development of legal empowerment initiatives. In order to sustain the process of empowerment, initiatives require strategies that: support long-term, grassroots-level engagement; have the flexibility to take direction from the disadvantaged; permit course changes as the needs and priorities of the disadvantaged evolve; provide concrete benefits that allow recipients to transform rights into choices, operating independent of the government to the extent necessary; and deliver quality, locally-appropriate technical assistance.
The most successful programs supporting the legal rights of the disadvantaged have dedicated funding with protected financial structures. Stable, secure, and predictable funding gives service providers a basis to design and execute the long-term, often politically controversial strategies legal empowerment requires. In some countries, well-established legal services NGOs, such as Cambodia’s Community Legal Education Center and Botswana’s Centre for Human Rights, have donors that supply core operational funding on a long-term basis through trusts and endowments. Many university programs also operate on endowments.
That kind of financial security gives the organizations the freedom to focus on issues and outcomes as opposed to projects, to develop specific areas of expertise that respond to local conditions and priorities, and to remain engaged on an issue over the time necessary for the process of empowerment to achieve its objective. Without such stable support, a near constant struggle for funding distracts from and limits programmatic choices and may require premature abandonment of initiatives.
In countries such as South Africa, pro bono and subsidized programs by private practitioners and civil society organizations (CSOs) have achieved some of the most effective legal reforms. The engagement of established private professionals can give legitimacy to the rights of the disadvantaged and can raise the profile of local groups in dealings with government agencies, courts, and third parties, such as investors and developers. However, pro bono efforts alone can rarely support the process of legal empowerment for large populations of disadvantaged people. Individual volunteer efforts are almost by definition limited in time. Volunteer programs are also often necessarily narrow in scope. Furthermore, even skilled and well-intentioned volunteers from outside a community often lack the cultural understanding and confidence necessary to understand local conditions and allow clients to identify priorities and control service strategy.
A basket fund, a financial tool that allows donors to pool their resources in support of a particular sector or shared objective, can help donors avoid some of the constraints that restrict project-based funds. Basket funds can fund government programs, programs operated by CSOs, or both. Basket funds allow donors to operate as grant makers: the fund can establish an objective and invite potential service providers to submit proposals and compete for support. In that manner, a basket fund can increase the accountability of service providers, reduce duplication of effort, raise performance levels, and help ensure effi cient and cost-effective service. Basket funds can also help donors obtain an overall snapshot of the sector. For example, underutilized funds may evidence a previously unrecognized gap in local capacity, and fund managers can respond by retooling their funding strategy to strengthen the capacity of existing providers or develop new ones.
In Uganda, several donors set up a legal aid basket fund that has proved to be a cost effective way of supporting a variety of activities and entities, including a paralegal advisory service, about two dozen grassroots legal services providers, and development of a legal framework. Although further research on basket funds is needed, the experience in Uganda suggests that the tool is well-suited to sustain empowerment processes.
Funding by NGOs and communities represents another form of funding support. Despite some evidence that projects designed to become financially sustainable often fail to serve the disadvantaged, development persistently seeks financial self-sufficiency. Proponents of the financial sustainability of legal initiatives point to various mechanisms designed to increase access to justice for the poor that do not require external funding, such as contingency fees and class actions. However, while such mechanisms can be part of an overall national strategy supporting legal empowerment, they tend to be limited to supporting court-related processes; they offer no support for grassroots services such as building rights awareness, advocacy, legal counseling, informal dispute resolution, and the plethora of non-legal activities that support the process of legal empowerment.
Some limited financial strategies suggest ways to supplement NGO funding sources and provide a source of community income. For example, paralegals working for the NGO Deme So in the Kati region of Mali recover some of their costs by charging residents fees for their help in obtaining necessary court documents. Because residents would pay more to obtain these documents (including travel costs and lost wages), if they did not have the help of a paralegal, the program actually increased demand for services.
Partnerships between communities and private investors are also potential sources of funding for programs with legal empowerment objectives, as with the Manda Wilderness Lodge project in Mozambique described above. Government support for legal empowerment programs often elicit skepticism, but in favorable environments, governmental and quasi government entities dedicated to legal empowerment can use the authority of the state to sustain the process of empowerment. In South Africa, the state-funded body, Legal Aid South Africa, draws on a diverse network of justice centers and satellite offices, impact litigation units, cooperative agreements with non-governmental organizations such as NGOs and universities, and judicare referrals to provide legal services to the disadvantaged.
Other countries have provided critical support to specific legal empowerment projects. In Indonesia, the government increased its funding of religious and circuit court programs for the disadvantaged, which made the courts accessible to women seeking registration of their marital status. The government’s effort, in combination with donor-supported intervention by the civil society organization, PEKKA, allowed thousands of female heads of household to obtain the certification necessary to qualify for state welfare benefits for their families. In India’s West Bengal, a state program helped sharecroppers realize the benefits of a protective law by implementing a state-wide program recording their names and educating the local population regarding their rights. After the conclusion of the registration program, the local government body, the panchayat, continued the sharecroppers’ rights. Twenty years after the state initiated the program, a significant percentage of sharecroppers had achieved sufficient economic and social status and bargaining power to negotiate with landowners for purchase of a portion of the land they sharecropped. To date, however, state-supported legal empowerment programs are the exception. In many low and middle income countries, state programs face multiple hurdles to support the process of empowerment over time.
Many legal empowerment initiatives are components of larger donor-supported development projects, which, as noted above, often cannot support the kind of need-based and client-driven principles that support the empowerment process. Second, insufficient political will may leave legal empowerment components of larger programs vulnerable to abandonment at the end of donor engagement. Third, even when the resources originate with aid agencies, if they are channeled through governments to implementing organizations, they can encounter political and bureaucratic obstacles that frustrate continuation of effective service delivery. However, when programs are well designed, and perhaps especially when they include the engagement of and oversight by civil society, government support for legal empowerment initiatives can help sustain the empowerment process.
Recommendations for Donors
1. Fund national organizations and global networks committed to legal empowerment.
In many lower income countries, CSOs that have the capacity to provide ongoing support for the process of legal empowerment (such as national and local NGOs, regional poverty law programs) are in early stages of development. Supporting CSOs provides for sustainable processes of empowerment less vulnerable to short term project cycles or a wane of political will. Targeting CSOs for support cannot only help deliver empowerment activities, but can help build local capacity for independent oversight of government operations and extend opportunities to build effective regional and sector coalitions. The use of basket funds and grant-making systems can help increase accountability and cost-effective service.
2. Fund research and dissemination of information.
As a cohesive development field, legal empowerment is still in its infancy. As the experience of program developers and local practitioners grows, collecting the experience of legal empowerment initiatives (particularly evidence of impact), creating and refining tools, conducting evaluations, and disseminating learning will improve the delivery of services. Donors can support these needs by funding stand alone research and encouraging the inclusion of components in initiatives dedicated to the collection and use of relevant experience, monitoring and evaluation, and wide dissemination of results.
To read the entire publication, click here.