Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
Last month, The Open Society Foundations released an interesting briefing paper titled ‘The Donor Landscape for Access to Justice and Health.’ The report looks at how health and human rights donors address the intersection of access to justice and health and it looks at obstacles and opportunities for future collaboration. It also suggests strategies for donors interested in advancing this dual agenda to leverage further support for this work among their colleagues.
Evidence shows that access to justice programming has a positive impact on public health, and particularly the health of marginalized communities. But the intersection of access to justice and health remains an under-funded field of work. A growing number of health donors address the social and rights-based determinants of health by funding health programs that incorporate access to justice strategies. At the same time, human rights donors support access to justice strategies that address the right to health, although these donors rarely measure heath outcomes. Despite significant activity around health and access to justice, there has yet to emerge a clear priority to link these areas so donors can mobilize and collaborate for leveraged impact.
Ministries of Health Require Non-Traditional Partners to Strengthen Health Systems
Bilateral donors working directly with ministries of health note that governments increasingly realize they need to work with private providers and civil society groups that integrate access to justice activities with health services. This is especially important in fragile states where health systems are weak.
Human Rights Donor Engagement in Justice and Health: An Overview
Interviews with donors show that the linkages to health they support are often demand-driven or opportunistic, rather than integral components of explicit or prioritized strategies. Four foundations note that the connections to health they support depend on the particular needs and demands of their grantees, and not on a strategy to promote health through access to justice or to measure health outcomes stemming from access to justice strategies.
Human Rights Donors Support Efforts on the Supply and Demand Sides of Justice
Many of the human rights funders interviewed for this report, particularly bilateral donors, highlight interventions on the supply side of justice. In the case of bilateral donors, this is likely due to the fact that human rights tends to be integrated across their programming, while governance or justice sector reform programs tend to be stand-alone efforts. As examples, these donors described efforts to reform the judiciary or police or to strengthen Kenya’s new Environment and Land Commission
However, bottom-up or demand-side efforts are gaining momentum, inspired by the findings of the Commission on the Legal Empowerment of the Poor (CLEP), a high-profile global initiative designed to ‘focus on the link between exclusion, poverty, and the law.’ European donors are leaders in their support for legal empowerment, designed to bring legal services and recourse to grassroots communities.
Health Donors Focus on the Demand Side of Justice and the Supply Side of Health
For their part, health donors- particularly private ones – tend to highlight efforts on the demand side of justice, such as supporting NGOs to bring strategic litigation cases on health access issues or to monitor government health expenditures.
Bilateral health funders play a large role on the supply side of health services, with a focus on strengthening health systems for more effective service delivery. However, few focus on health systems reform to increase access to services among marginalized populations. Unlike human rights donors, health donors have yet to use their influence to reform health systems to ensure access to justice for the marginalized populations most burdened by disease.
A Scan of Funding Priorities
Several private foundations with the flexibility and mandate to provide direct funding to civil society organizations cited legal empowerment approaches as central strategies for linking justice to health for marginalized populations. These donors highlighted two legal empowerment strategies in particular:
The multilateral agencies interviewed for this report – such as UNDP, The International Development Law Organization (IDLO), and the Global Fund – are piloting strategies and developing guidance and best practice methodologies for linking HIV and legal services.
The bilateral donors interviewed for this report did not stress legal empowerment strategies in particular, but a comprehensive desk review suggests that a significant amount of legal empowerment work is being funded by bilateral through basket funds in East Africa.
Private donors interviewed for this report support local organizations across Africa with both grants and technical assistance for strategic litigation on the right to health. Some donors interviewed felt that strategic litigation should be a primary strategy for making health services available to marginalized populations and that, without it, rights creation and legal empowerment efforts are not likely to have an impact.
These same donors note that strategic litigation is time-consuming and expensive, and major donors in particular are unwilling to invest in activities that do not yield immediate and measureable results. However, several donors remarked that organizations led by and for marginalized populations have successfully built capacity or forged partnerships to carry out strategic litigations, though they have been failing when it comes to monitoring implementation and advocating for enforcement.
Democracy and Governance/Law Reform
Many bilateral donors interviewed for this report operate out of Democracy and Governance units within their organizations. They see their institutions as playing a role in improving the functioning, accessibility, and legitimacy of justice institutions (i.e., the supply side of justice). In Kenya especially, several private donors from both the health and human rights sides focus on supporting civil society groups to ‘seize the moment’ of the recent constitutional reforms to advance health and rights in the courts (i.e., the demand side of justice.)
Donors working on HIV have focused on civil society engagement in law reform in order to create an enabling environment for HIV prevention, care, and treatment. This approach incorporates not only strategic litigation as described above, but also the development of model HIV laws, modules, and toolkits to make the HIV legal framework accessible and understandable to those most affected by the disease.
Community Legal Structures
In contexts where customary, informal, or religious legal systems operate in parallel with the formal justice systems, donors are supporting efforts to build bridges between them and increase their potential for positive human rights impacts, particularly on women’s rights and health. None of the donors interviewed identified community legal structures as appropriate forums for advancing the rights of marginalized populations such as LGBT people, sex workers, people who use drugs, or palliative care patients. This suggests that the intensity of social discrimination against these groups makes influencing community structures an uphill battle with potentially diminishing returns.
Social Accountability and the Right to Essential Services
Interviews and desk research indicate a growing interest in social accountability for health among both health and human rights donors. Social accountability refers to strategies developed in the last two decades to mobilize demand for equity and effectiveness in the provision of public services. These donors are supporting civil society to ensure that governments make good on their commitments to health, using strategies such as scorecards, social audits, and budget monitoring.
An analysis of social accountability and legal empowerment suggests that ‘a strategic blend of the two approaches would increase the effectiveness and reach of grassroots efforts to advance social justice, including efforts to realize the right to health.’ As noted above, donors tend to see social accountability efforts as belonging in the sphere of human rights. None of the donors interviewed articulated a strategy for combining social accountability and legal empowerment, but many expressed an interest in models of this approach and evidence of its impact.
Donors are in a position to bring together unlikely partners in efforts to link access to justice and health. They are also well placed to fund the space and time needed by overworked and under-resourced health rights activists to think expansively about multi-sectoral approaches and partnerships that will advance their goals. Donors identified several convenings that they considered central to the development of their funding strategies on health and access to justice:
Barriers to Linking Health and Justice
Donors identified myriad barriers, both institutional and political, to building portfolios of work at the intersection of health and access to justice. Private foundation staff noted that the distinctions between human rights and health are drawn much more sharply at headquarters level. By contrast, grantmaking directed by regional and local offices tends to be more integrated because program officers are ‘closer to the ground,’ where it is easy to see that local organizations can organically and effectively link health and rights. Bilateral donors noted that it would be difficult to interest their institutions in marginalized populations in particular, because they are committed to measuring the health impacts of access to justice efforts in broad terms.
Barriers to Linking Access to Justice and Health for Marginalized Populations
Post 2015 Era: Represents a strategic moment for donors supporting programs that link access to justice and health to highlight successful outcomes and push for replication and expansion of programming.
Develop Joint Heath & Human Rights Outcomes: One obstacle to more effective collaboration between health and human rights donors is the fact that they pursue different outcomes through their funding. The development of nuanced monitoring and evaluation frameworks and indicators to measure connected health and human rights outcomes would represent an advancement in this field as well as a methodology that would encourage effective collaborative work.
Private & Public Donors Should Collaborate: Often, private foundations have the capacity and mandate to fund grassroots or local-level work where access to justice and health programming is organically integrated in response to a clear set of community needs. Bilateral and multilateral organizations could seek out opportunities to learn from cutting-edge program models funded by private foundations, and bring their significant technical expertise to bear on opportunities for scale-up and replication.
Consider Social Accountability as a Health and Human Rights Intervention: This donor mapping has revealed a significant amount of funding and interest in social accountability strategies (e.g., social audits, budget monitoring, scorecards) as human rights interventions. This suggests that organizations with an interest in supporting work that combines accountability and legal empowerment have potential allies in building the evidence base and piloting innovative projects.
To view the full report, click here.