Discover the Latest Innovations and Lessons Learned in Rule of Law and Legal Empowerment Projects
After recently working on urban land tenure for youth and urban governance, I have a new fascination with all things related to access to justice in urban areas. As a result, this latest post covers a slightly older report (2010) by the Asian Development Bank on “Access to justice for the urban poor: toward inclusive cities.” It discusses the common challenges marginalized communities face and what rule of law programs can do about it. With urbanization rapidly rising in Africa and Asia, this area may become increasingly important.
In 2006, ADB approved a regional technical assistance (RETA) grant on Access to Justice for the Urban Poor. ADB studied the common grievances and disputes faced by the urban poor in Bangladesh, Indonesia, Philippines, and Thailand. The final report of the RETA described the traditional, community-based, or informal processes that the urban poor used to express grievances and resolve disputes.
Obstacles to Accessing Basic Urban Services
One major type of grievance encountered by the urban poor arises from national and local authorities’ setting and implementing policies that prevent the urban poor from obtaining formal access to basic urban services or make it difficult for them to do so. As a result, the urban poor often obtain access to urban assets through personal and social connections and unregulated intermediary service providers. But the access obtained through these informal arrangements is often tenuous, and comes at greater economic and social cost. Unregulated service providers impose higher fees for less reliable services; individuals and communities are held hostage by powerful groups or mafias that control access. Worse, they usually have no way of complaining about unfair treatment and seeking redress for grievances.
Formal Grievance Mechanisms Aren’t Used
In recent years, grievance redressal mechanisms have included innovations such as setting up customer complaint service centers that can be accessed by telephone or email; assigning field teams to handle the rapid resolution of grievances in specific areas; and using citizens’ report cards or citizen charters that set out the standards of performance and service delivery that citizens can and ought to expect from national and local government agencies. Researchers have noted there are limitations such as accessibility and efficacy of these mechanisms.
Informal Grievance Redressal Mechanisms are Preferred
The urban poor, who appear more inclined to voice their grievances through informal redressal procedures involving “local politicians, street leaders, lower level bureaucrats and neighborhood associations” instead of resorting to established formal procedures. Ranganathan posits the following reasons behind the failure of the urban poor to access established grievance redressal mechanisms: (i) The poor lack property rights or capabilities and connections to access formal systems. (ii) The poor are geographically isolated or too time constrained to formally register or follow up on complaints. (iii) Service providers face institutional, financial, and human resource barriers hindering their ability to respond to urban poor complaints.
Why Formal Mechanisms Aren’t Working
One possible reason for the failure of grievance redressal mechanisms to obtain the expected result is that the mechanisms were designed for simple contexts, when urban development, by its very nature, is complex. Customer service centers in governments or formal service providers are designed to address grievances that usually arise in the course of service delivery— grievances relating to nonprovision, or inadequate or unsatisfactory provision of the service to which the customer is entitled.
However, some rights claimed by the urban poor (secure tenure, for example) are contested, and the lack of clarity in this area affects their ability to access urban assets and services. The fact that the local government or service provider introduces a grievance mechanism for its customers does not enable the urban poor who cannot obtain access to formal systems, to access the same. Existing rules usually provide formal access to urban assets and services only to those with proof of tenure or formal title to the land they occupy. The status of many urban poor, who are unable to present such proof, or any legal identity document, for that matter, remains unresolved.
Types of Grievances and Disputes
Four types of grievances or disputes involving urban assets emerged in all the sites. These are: (i) grievances directed toward the state or formal service providers regulated by the state; (ii) grievances and disputes with intermediary service providers that provide access to urban assets in situations where the state or formal service providers fail to provide the urban poor with such assets; (iii) intracommunity disputes; and (iv) interpersonal disputes. The first two are vertical grievances or disputes, which involve the poor and the government (or larger society), and which involve questions relating to the poor’s security of tenure or access to urban assets. The third and fourth refer to horizontal grievances or disputes, which occur between and among members of the urban poor, and involve questions about the design, management, and distribution of urban assets.
Grievances against the State or Formal Service Providers
Grievances against the state often involve its failure to provide the urban poor with secure land tenure, housing, utility and sanitation services, and public goods services such as education and health; and the requirement that citizens provide legal documents before they can gain access to utility and other public services. Grievances against formal service providers relate to their failure to provide a mandated utility or service to all citizens or residents of a particular area.
Disputes Revolving around the Absence of Secure Tenure
Although the poor generally do not file cases in court, many find themselves entangled in litigation—as the accused in criminal complaints, and as parties in eviction complaints. In disputes where the urban poor occupy a certain property without secure tenure, it is often the public or private landowner that files a case in court against those who actually occupy the properties. The urban poor generally do not go to court to express a grievance against the government for resorting to eviction instead of resolving tenure issues amicably.
The grievance mechanisms of service providers are accessible only to their customers of record. Many urban poor are not directly connected to formal service providers, and obtain services from intermediary service providers. They are therefore unable to register grievances in the formal grievance mechanisms.
Reliance on Intermediaries to Obtain Legal or Formal Access to Services
When the urban poor are barred from obtaining legal or formal access to services and utilities, they rely on intermediaries to provide such access. Community-initiated solutions to address service delivery failure often revolve around intermediary service providers. Intermediary service providers include community members with a legal connection to utility providers, households outside the urban poor community that allow the community to tap into the connection for a fee, and private sellers. n individual or group illegally tapped into the formal service can also offer a connection to the poor. NGOs and community-based organizations sometimes play the role of intermediaries.
Reliance on Intermediaries Exposes the Poor to Criminal Prosecution
In many cases, recourse to intermediary service providers is a form of “self-help,” whereby persons unable to obtain assistance from government or the formal sector seek alternative means of obtaining access to urban services. When the intermediary provides the poor with access by tapping into the formal service provider without its permission, or using the connection of a paying customer without its consent, it creates disputes between the formal service providers or formal customers and the poor. In some jurisdictions, it exposes the poor to criminal prosecution. In all countries covered by the ADB–TAF study, a problem has emerged from arrangements involving intermediary service providers, which puts the urban poor at great risk: the poor do not have adequate mechanisms to hold intermediary service providers accountable.
Homegrown Solutions to Address Grievances with Intermediaries
There appear to be few cases where a community has an agreement with service providers that sets out a procedure for airing and addressing complaints about an abusive, uncooperative intermediary service provider. On occasion, NGOs and local officials are made aware of the abuses of intermediary service providers. NGOs help by organizing and supporting community efforts to find solutions to their continuing inability to obtain satisfactory access through the intermediary. Local officials, when they are not captured by the same individuals or groups running the intermediary service provider, may negotiate for better conditions on behalf of the urban poor.
Challenges Associated with Community-Based Resolution Systems
In three of the four countries covered by the ADB–TAF study, it was observed that the local elite are chosen to head, or become members of the traditional or community- based dispute resolution system operating in the community. Although these traditional, community-based dispute resolution systems are widely accessed in resolving interpersonal disputes, they are ill-equipped to handle disputes involving intermediary service providers. Composed of the same parties running the intermediary service providers, or persons related or sympathetic to the latter, such mechanisms cannot claim to be impartial adjudicators of complaints against intermediaries. Consequently, the study notes that grievances and disputes involving intermediary service providers often remain unresolved “largely due to entrenched power dynamics within communities.”
Lack of Political Will to Challenge Intermediaries
Even when local officials and formal service providers allow an intermediary service provider to sublease, redistribute, or otherwise serve the community in their stead, they are reluctant to intervene when users have grievances against the intermediary. These service providers depend on the intermediary to deliver services that they would otherwise need to deliver directly to individual community members. They contract with the intermediary service provider (which may be run by community leaders) or the community leaders, with the assumption that the intermediary and/ or leaders represent the community. There is little incentive to go after the intermediary. The ADB–TAF study notes that government policies that use intermediaries to “provide, regulate or monitor services to the urban poor” have allowed individuals to “collude with government officials to facilitate low quality, expensive and unaccountable services.”
Using NGOs to Provide Intermediary Services Can Strain Relationships with Community
Special issues involving NGO service providers NGOs that take on the role of intermediary service providers appear to be less successful in this role as compared to being community organizer and trainer, facilitator between government and community, or community negotiator for urban assets, legal documents, and other relevant information. The NGOs’ accountability to their respective charters or to larger NGO networks or federations has not prevented them from being subject to complaints or being perceived as corrupt when they engage in the provision of utility services. NGOs and the urban poor find such complaints and perceptions difficult to address as they strain the relationship between NGOs and the community. This prevents NGOs from pursuing far more effective interventions such as organizing communities.
The Role of Community/Religious Leaders in Resolving Disputes
In Indonesia, ketua RT/RW leaders— neighborhood leaders elected by the community—who act as liaison between the government and the community but who are not paid by the government for their services, are called to mediate between community members on a wide variety of disputes taking place within the community. The traditional system of resolving disputes using adat law does not appear to have survived the urban poor’s transition from rural to urban areas. Likewise, the influence of religious leaders in mediating conflicts, while positive, decreases as community cohesion diminishes.
Community Dispute Resolution Mechanisms are Unable to Resolve Communal Grievances
Although widely used to resolve interpersonal disputes, community and traditional dispute resolution mechanisms cannot appropriately address communal grievances and/or disputes with government agencies or formal service providers, which do not recognize the jurisdiction of these locally based institutions. Consequently, while such grievance and dispute mechanisms appear to address inter- personal disputes satisfactorily, they are unable to address the root cause of the dispute—that is, the urban poor’s inability to obtain sufficient access to urban assets.
Urban Poor & Rights Awareness
Where the urban poor have sufficient knowledge of such laws or the support of legal aid groups, the urban poor have been known to file petitions in court to obtain redress for grievances against the government. The ADB–TAF study notes that “legal identity is central to the ability of the urban poor to [claim or demand] access to land, housing, education, health, water, electricity and other basic services,” and “the intersection of legal identity and health and education services is particularly important.”
Challenges Related to Obtaining Legal Documents
Nevertheless, “[o]btaining legal documents [proves to] be very time-consuming, complex, and expensive, particularly for those living in slum communities.”In some jurisdictions, formal service providers have begun to solicit and accept substitute identity documents as preconditions to granting access to services.
Social and Cultural Cohesion Increases Community Mobilization
The Indonesia Country Report notes that: Communities that show higher levels of social and cultural cohesion are more likely to successfully work together to realize benefits for the community as a whole. The contrast between the experiences of Jakarta and Surabaya demonstrate this point quite clearly. In Jakarta, where social cohesion is relatively low, there is very little community mobilization and urban assets remain largely unattained. In contrast, in Surabaya, the collective actions of the communities working with various institutions have resulted in substantially increased access to assets. The contrast seems to be the result of a difference in social cohesion, which can be explained by several factors including population, diversity, geographic size, and economic scale.
Political Will to Work with the Urban Poor
Government, formal service providers, and NGOs are increasingly willing to partner with the urban poor, provided they are organized. A poorly organized community poses significant risks to partner government and nongovernment agencies. If they happen to deal with an individual or group that does not represent the interests of the majority, the likelihood of community protests can delay, if not derail, the project.
Social Cohesion Increases Success of Community Dispute Resolution Mechanisms
Social cohesion and community organization are correlated with the effectiveness of community-based dispute resolution systems. Weak social cohesion can be addressed by better community organization. NGOs, which play a critical role in organizing urban poor communities, should consider training community members in inclusive ways of setting rules and procedures, and in receiv ing and handling grievances and disputes.
The following strategies to increase people’s participation and representation in community-based dispute resolution processes were considered at the final workshop on the Access to Justice for the Urban Poor project:
(i) Persons who are tasked with dispute resolution should be elected by community members for a fixed term, after which such members would no longer be allowed to run for reelection. This would decrease the risk that the mechanism would be subject to elite capture. It would be favorable if the composition of the group engaged in dispute resolution would be representative of the groups existing in the community.(ii) Dispute resolution mechanisms that provide the urban poor with an uninterrupted level of communication and at low cost—mobile telephones and SMS, for example—have proven to be particularly effective in relaying complaints in Indonesia. Alternatively, government or formal service providers can establish a presence within the community through branch offices or field officers who regularly visit, listen and resolve residents’ grievances. Their increased presence will likely encourage people’s participation in reporting complaints and grievances, and finding solutions. (iii) A team composed of community members and NGO staff can be organized to monitor and evaluate government or service providers’ compliance to citizens’ charters, negotiated agreements, and other performance standards, as well as the performance of grievance mechanisms designed to address the community’s complaints.
Increasing Secure Land Tenure
A document or instrument recognizing even temporary occupancy rights, can provide secure tenure. “By providing occupancy rights, state authorities render to slum dwellers a degree or urban citizenship—“a right to the city” that enable the poor to make “claims on public resources or negotiat[e] with state authorities for access to basic services. By recognizing slum dwellers’ “right to the city,” national and local officials have the opportunity to “sensitize slum dwellers to their rights and responsibilities as urban citizens.” A common understanding of what rights can be claimed from the government, and urban dwellers’ responsibilities decreases opportunities for misunderstanding and conflict between government and the urban poor; the urban poor and other city dwellers; and among members of the urban poor community.
In some jurisdictions, local governments have begun to enter into negotiated agreements with urban poor communities to identify the following: (1) the rights that the urban poor can claim from government with respect to secure tenure and urban development projects; (2) when they can claim these rights; (3) the conditions upon which the rights are granted; and (4) when these rights may be taken away or modified. The terms of these negotiated agreements can be enforced by the courts, and have been successfully used in Naga City and Cebu City in the Philippines to build partnerships between local government and urban poor groups.
Formalizing the relationship between the urban poor and the service providers makes good business sense, as it decreases the risk of systems loss, is able to generate revenue which would otherwise have gone to informal intermediary service providers, and improves the service providers’ corporate image.
An agreed-upon grievance mechanism, which allows consumers to complain not only to the intermediary service provider, but also to the government or formal service provider, would help keep the intermediary accountable for its performance.
Training on handling complaints relating to urban assets would be beneficial to community members tasked with mediating or resolving such disputes. Even when community dispute resolution mechanisms operate fairly, the community must have the capability to enforce the mediated settlements or decisions they have rendered through the mechanism. Training on the techniques of enforcing these settlements or decisions—such as the use of public censure, community-imposed sanctions, or recourse to enforcement by way of formal institutions, including the judicial system—may be useful and beneficial to members of the dispute resolution mechanism, community leaders, and members.
Linking the formal justice system with community-based dispute resolution mechanisms can check abuse at the community level. One striking weakness of community-based and/or traditional dispute resolution mechanisms is the propensity of such institutions to be subject to the influence of local hierarchies. In the Philippines, mediators cannot compel parties to settle a dispute; parties who are unable to agree despite the efforts of community mediators are entitled to obtain a certificate from the mediators that would allow them to file their complaint in court.