Promoting Access to Justice: a study on Strategies to Implement Collaborative Dispute Resolution Mechanisms and Procedures for Resolving Conflicts in Liberia Liberian Ministry of Justice By Christopher W

A potential Pilot focused on the Resolution of Minor Criminal Cases involving Adults or Juveniles and Pre-Trial Detention Issues

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A potential Pilot focused on the Resolution of Minor Criminal Cases involving Adults or Juveniles and Pre-Trial Detention Issues

Input from participants in focus groups, interviewees and research conducted for the Desk Review indicate a significant concern by citizens about how minor criminal offenses involving adults and juveniles and pre-trial issues are currently being addressed and handled. Citizens and government officials both emphasized that they want procedures that are fair, efficient, timely and appropriate in how they determine guilt or innocence and address an offense committed by offenders.

A pilot focused on resolving these types of disputes could utilize the services of customary authorities or other service providers working under the auspices of another government institution, with the most likely being the Judiciary or MOJ. The pilot could focus exclusively on handling offenses committed by adults, juveniles, or both. It could also respond to pre-trial issues and problems by processing and resolving cases more rapidly, thus lowering the need for or duration of pre-trial detention. Finally, it might use restorative justice approaches and procedures to address relationship issues between victims, offenders and other members of their community.

Some work has already been done to identify the types of minor criminal offenses that might be eligible for alternatives to detention. The Sub-committees on Alternatives to Detention and the Magistrates Sitting Program met twice in 2012, and developed a list of minor offenses that might qualify for diversion from detention. The list was submitted to and approved by the Pre-Trial Detention Taskforce on June 28th, 2012, subject to review and consideration of provisions for youth offenders covered under the juvenile diversion guidelines.117 Some of these offenses could be address by non-judicial dispute resolution procedures.

A dispute resolution mechanism, mediation procedures and standards and processes for diversion to address issues involving juvenile offenders has already been developed by the Ministry of Gender and Development. If the MOJ selects a pilot focused on handling juvenile disputes and offenses, it will need to assess how well the current mechanism is working, what it might do to augment or enhance existing procedures or what additional components or services might be added to settle more cases involving youth,

Described below are possible options for a pilot with this focus. Two options are presented, each of which could be conducted independently, or they could be combined into one integrated mechanism and pilot.

A potential Pilot to Resolve Minor Criminal Cases by Customary Authorities

In times past, authority to address minor criminal offenses resided with customary authorities. They had the authority to receive complaints, investigate them, compel involved parties to participate in a dispute resolution process and impose consequences – fines or other forms of punishment. Their services were often compensated by a fee paid to them by involved parties.

More recently, the authority of customary authorities to handle and resolve minor criminal cases or disputes has been withdrawn. A new law of December 2012 expanded the jurisdiction of Magisterial Courts over a greater number of offenses, including some relatively serious ones.

The rationale for removing the authority of customary leaders to handle minor criminal offenses has diverse facets. In part it was likely motivated by the government’s desire to clarify and separate judicial and executive functions. Additionally the government and Judiciary want to promote a legal culture and related procedures that were more fair, transparent and protected citizens’ political and human rights than was perceived to be the case for services and procedures provided by customary authorities. Additionally, there was a desire to institutionalize the rule of law and a modern statutory justice system throughout the country,

(harassment), 1st degree misdemeanor (simple assault – recklessly causes injury or negligently causes injury with a weapon),1st degree misdemeanor (reckless endangerment), 1st degree misdemeanor (menacing), 1st degree misdemeanor (criminal coercion to commit misdemeanor); §15.1 Destruction of Property: 2nd degree misdemeanor (criminal mischief, property damage <$500), ( 1st degree misdemeanor found too serious to be included); §15.20 Criminal intrusion: 2nd degree misdemeanor (criminal trespass not otherwise categorized as more serious), ( 1st degree misdemeanor found too serious to be included); §15.5 Theft and Related Offenses: 2nd degree misdemeanor (theft of <$50, no threat, deception, and defendant not a public servant), 2nd degree misdemeanor (defrauding secured creditors if $50st degree misdemeanor (unauthorized use of vehicle), 1st degree misdemeanor (misapplication of entrusted property), 1st degree misdemeanor (defrauding secured creditors (item >$300), 1st degree misdemeanor (bad checks); §16.1 Offenses against the family: 2nd degree misdemeanor (serving alcoholic beverages to children), 1st degree misdemeanor (endangering welfare of children), 1st degree misdemeanor (persistent non-support), 1st degree misdemeanor (bigamy); §17.1 Offenses against public order: 2nd degree misdemeanor (failure to disperse), 2nd degree misdemeanor (disorderly conduct, if purpose is to cause substantial harm or serious inconvenience); 2nd degree misdemeanor (obstructing highway), 2nd degree misdemeanor (disrupting public meetings and processions),1st degree misdemeanor (false public alarms); §18.1 Offenses against public morality: 2nd degree misdemeanor (facilitating prostitution),2nd degree misdemeanor (indecent exposure), 2nd degree misdemeanor (cruelty to animals),1st degree misdemeanor (disseminating obscene material), 1st degree misdemeanor (gambling without authorization), 1st degree misdemeanor (desecration of venerated objects), 1st degree misdemeanor (abuse of corpse), ( 1st degree misdemeanor of “promoting prostitution” found too serious to be included); Traffic violations: all 1st degree misdemeanors (e.g. driving without a license, violations of vehicle weight, etc.)

rather than just in urban areas where it predominantly been practiced and applied. The government also wanted increase the use of common laws, standards and criteria to evaluate and make decisions on similar criminal acts, and provide more uniformity of state responses to offenses rather than the diverse consequences that commonly occurred in different communities. Finally, removal of authorities to handle these types of cases from customary leaders was based on government and many citizens’ perceptions, and reality, that a number of traditional authorities no longer had the credibility and respect of members of their communities; used diverse, and on occasion discriminatory, standards when handling similar cases; or engaged in corruption or imposed excessive fines or punishments, which were often self-serving. While there is merit for some of the claims, the decision to remove these authorities from customary leaders has resulted in a number of dilemmas and unintended consequences concerning the timely provision of justice in the country. Some of them include:

  • Perceptions by a significant number of citizens living in some rural areas far from police and courts that there has been an increase in crime

  • A number of offenders believing that they can act with impunity because of the absence of local justice mechanisms and actors in their communities

  • A decline in respect toward customary authorities and their roles and functions in communities because of their perceived inability or authority to address minor criminal offenses or disputes

  • Delays in responding to and settling minor criminal offenses or disputes because of having to transport the accused to distant locales where there are police, detention facilities and courts

  • Large numbers of individuals in pre-trial detention, often for extended periods of time

  • Overcrowded court dockets due to an increase of types of cases to be head, which had previously been handled by customary authorities

  • Difficulties and significant costs to parties involved in minor criminal cases to travel, often multiple times, to locales where government courts are located to have their cases heard

  • Fees associated with formal prosecution of minor criminal offenses that are often beyond the capacity of potential or actual victims to pay

  • Release of accused offenders back into their communities without a decision regarding their guilt or innocence because of lack of detention facilities in rural communities to hold them until a decision on their case has been made, or because a formal court hearing will not be attainable for a long time in the future

  • Violations of accused persons’ rights to a speedy trial

  • Victims refusal to press charges for minor criminal offenses because of concerns about an extended pretrail detention of the accused, which might be longer than the time imposed as a punishment for the offense by a court; a desire not to remove an offender from the community where family members may need their help and services, and worries about potential damage to relationships with the family of the accused or other members of the community.

To address some of the above issues and concerns, the MOJ, Judiciary, prosecutors and defenders, customary authorities and citizens are taking another look at whether customary leaders might play some role in handling and resolving minor criminal offenses, complaints and disputes that involve adults and/or juveniles. If this focus chosen by the MOJ and its partners for the pilot, the Ministry will need to make decisions on a number of important questions and issues.

Enhancing Legitimacy – Enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of [dispute] grievance processes

  • Build and mobilize political, institutional and citizen support for legal and institutional changes required for customary authorities to handle and resolve minor criminal offenses and disputes. For a pilot with this focus to be implemented and be effective, it must have the concurrence and support of the Judiciary, Ministry of Internal Affairs, other government agencies as appropriate, customary authorities

and the bar. Discussions and negotiations between the involved entities will need to be conducted to build support.

Clear support by all concerned parties identified above, as well as other initiatives to enhance the quality of performance of customary authorities, can help build legitimacy in the eyes of potential users of the dispute resolution services.

  • Clarify the legal authority of customary leaders to handle minor criminal offenses and their relationship to the judiciary and courts. Because customary authorities are currently not legally authorized to handle and resolve minor criminal cases or disputes, new rules may need to be promulgated by the Judiciary or legislation may be required to enable them to do so. It might also be possible for the MOJ and the Judiciary to obtain an exemption from existing laws that limit customary authorities from handling these kinds of cases for a pilot program in a designated jurisdiction to experiment with the concept.

  • Clarify the types of minor criminal offenses customary authorities will be authorized to hear and resolve. Regardless of the pilot’s institutional home – based in the MOJ, the Judiciary or some other entity – the legal authority of customary authorities to handle minor criminal cases and relationship to statutory courts and the formal legal system should be clarified. This is important for concerned institutions, customary dispute resolution providers, members of the public and prospective users. Additionally, the cooperation and support of both local magistrates and judges at the Circuit Court levels will be critical for the success of a pilot with this focus.

  • Clarify administrative procedures to be used by customary authorities

The MOJ should only try this approach only in jurisdictions where there is strong support from the judiciary for the initiative. Some other issues to be addressed and answered to implement a pilot with this focus include:

    • How will customary authorities receive and accept cases that involve accusations of minor criminal offenses?

    • Will courts refer cases to customary authorities?

    • Will victims have to file formal complaints and of so who do they file it with?

    • What investigative powers will be given to customary authorities?

    • Will customary authorities have the power to compel parties to participate in a dispute resolution process?

    • What authorities will customary authorities have to impose fines and punishments?

    • What will be the legal status of outcomes reached by customary authorities?

    • What enforcement authorities will customary authorities have to assure compliance with the outcomes of customary dispute resolution procedures?

  • Clarify whether customary authorities should be legally authorized to handle cases where guilt is contested, or only those where an offender admits guilt and is willing to make an apology or amends through some form of compensation to the victim. If customary authorities are authorized to handle minor criminal offenses, clarification will be required to define whether they can only hear disputes where the accused has confessed, or can handle contested cases. Interviewees and participants in focus groups were not of one mind on this question. Some indicated that customary authorities being authorized to handle only cases in which guilt has been acknowledged or established could focus on seeking apologies, addressing compensation and promoting reconciliation. Others thought that they should have the authority to help determine guilt or innocence as well as impose consequences or punishments.

  • Clarify the contents and publicize the kinds of training customary authorities receive to handle minor criminal cases. Interviews with judicial personnel and lawyers connected with courts identified four areas where customary authorities should receive training: 1) mediation techniques to help parties reach voluntary settlements; 2) information on statutory laws, standards and criteria that are used to determine guilt or innocence, and common outcomes or consequences if the accused is found to be guilty; 3) common customary laws or common practices if an accused is found to be guilty; and 4) national agreements and international human rights standards that should be adhered to.

The kinds of training received by customary authorities should be publicized to the public so that the latter know that local intermediaries are educated and qualified to handle specified disputes or offenses.

  • Create standards and widely publicize information about the fees customary authorities are allowed to charge for the provision of dispute resolution services to handle and resolve minor criminal cases and disputes. This is the same issue as for customary authorities mediating family disputes.

Enhancing Accessibility – Being known to all stakeholder groups for whose use they are intended, and providing adequate assistance for those who may face particular barriers to access

  • Publicize and assure choices for entry points into customary dispute resolution processes and selection of intermediaries - The MOJ, Ministry of Internal Affairs or other partners, as appropriate, should clarify and provide education for disputants on where and under what circumstances they can enter and utilize different customary dispute resolution procedures and service providers, choices they have over who will be their intermediary, the dispute resolution procedures that can and will be used and the customary or statutory laws that will be applied to reach voluntary settlements or to guide decision making. Disputants need to have alternative choices of service providers if they question the neutrality or impartiality of a customary authority and want to select another intermediary.

Enhancing Predictability – Providing a clear and known procedure with an indicative timeframe for each stage, and clarity on the types of process and outcome available and means of monitoring implementation

  • Make customary practices more explicit This would involve the same approach as for customary authorities helping to resolve family disputes. Authorities should describe to disputants the dispute resolution procedures they propose to use and parties should formally accept them before a process is initiated.

  • Enhance customary and other dispute resolution procedures and practices through educational programs – This is the same issue as for customary authorities handling and resolving family cases except that the focus for the programs are on laws and dispute resolution procedures focused on minor criminal cases.

  • Clarify the powers of investigation that will be given to customary authorities Customary authorities note that their authority to investigate cases has been taken away from them. When considering new authorities for the resolution of minor criminal cases, decisions will need to be made by the MOJ and Judiciary about what powers of investigation will be delegated to customary authorities versus other entities, such as the police. Decisions will also need to be made on how to protect any evidence that is collected.

  • Clarify the relations between and authority of customary authorities and the police – Interviewees, especially those directly involved in the justice sector, were reluctant to give customary authorities any direct or formal authority over police and police activities. They suggested that customary authorities should be empowered to request but not order police assistance in apprehending accused offenders, preventing them from absconding, holding them for specific limited periods of time and transporting them to detention facilities or statutory courts if customary authorities believed the offense merited it or the dispute could not satisfactorily be resolved at the local level.

  • Clarify the laws, standards and criteria – customary, statutory or common practices – should be applied by customary leaders when cutting a case – The MOJ and judiciary will need to determine what laws, standards and criteria should be applied by customary authorities when handling minor criminal offenses.

  • Clarify the kinds of dispute resolution procedures customary authorities should use, or be allowed to use, when addressing and settling minor criminal cases – mediation, non-binding recommendation, third party decision-making (arbitration) – A determination will need to be made regarding whether customary authorities should use primarily meditative approaches and procedures or whether they are primarily adjudicators.

  • Clarify whether outcomes reached through customary dispute resolution procedures are binding on parties and legally enforceable – Decisions will need to be made regarding whether mediated agreements or decisions by customary authorities on minor criminal cases are binding on offenders, and whether they are required to comply with the customary authority’s decisions. Clarity will also be needed on the authority that customary authorities have to enforce their decisions, or must turn this responsibility over to other entities such as a statutory court, and ultimately the police.

  • Clarify appeal procedures, either to another customary court or a statutory court, if the outcome of a customary process is not acceptable to one or more disputants. There is currently an established sequence for elevating cases from one chiefs' court to another. A determination will need to be made whether this appeal sequence will be used, or whether a more rapid elevation to a higher customary or statutory court might be appropriate for minor criminal cases. Parties who are dissatisfied with the outcome of a customary process will need to know how to appeal, either through a customary process or move their case to a statutory court.

  • Clarify the acceptability of forms of “Sassywood” that will or will not be acceptable for use in customary procedures. Procedures involving the use of various kinds of ‘Sassywood" have historically been used by customary authorities to promote truth telling or acknowledgement of guilt. Some Liberians, especially in rural areas strongly believe these procedures are an important part of customary dispute resolution procedures.

Some customary authorities have noted that since the prohibition of the use of Sassywood, offenders have limited inducements to tell the truth or acknowledge guilt. Customary authorities would like clarification regarding whether some kinds of Sassywood, especially those methods that do not inflict serious physical harm, would be acceptable to the MOJ and the Judiciary and that they would be allowed to use them.

  • Clarify the types and parameters of consequences, fines or punishments customary authorities will be allowed to impose on guilty parties. If an offender admits guilt or is found to be guilty through a customary decision making process, authorities need to know the kinds and range of fines or punishments they will be allowed to impose as a consequence for the offense. Consequences should be widely publicized in communities so that members know the like outcome if a person is found guilty of committing a specific minor criminal offence. Broad public awareness of consequences can also prevent abuse of authority or power by customary leaders.

  • Create a performance review, complaint and disciplinary committee that disputants can use to raise concerns or grievances about the performance of a customary authority – On occasion, all dispute resolution procedures may be abused by some of the people who provide them One way to address this problem is to create a mechanism and procedures where disputants can bring grievances if they believe there has been an abuse of the process. This body should have the power to investigate grievances, make a determination regarding the validity of claims, and take disciplinary action as appropriate. If this process is implemented, disciplinary actions for various kinds of abuses will need to be defined.

Enhancing Equitability – Seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a [dispute resolution] grievance process on fair, informed and respectful terms

  • Conduct educational seminars to promote fair, informed and respectful participation – The MOJ, Ministry of Interior and their partners could increase the presentation of educational seminars and training programs for customary authorities and potentially weaker parties, such as women and members of minority communities, focused on providing information necessary to conduct and engage in the customary dispute resolution process to resolve minor criminal cases on “fair, informed and respectful terms”.

  • Provide legal services, information and advice –The MOJ and its partners should identify personnel and establish procedures to provide legal information or advice to customary authorities handling minor criminal cases or disputes. Providers could be attached to an entity such as the National Council of Chiefs and Elders or Paramount Chiefs’ Courts, or statutory courts.

Enhancing Transparency – Keeping parties to a grievance [or dispute] informed about its progress, and providing sufficient information about the mechanisms performance to build confidence in its effectiveness and meet any public interest at stake

  • Require customary dispute resolvers to inform disputants about expected timelines and mileposts for various stages and procedures in the dispute resolution process As in all of the mechanisms and dispute resolution procedures described above, providing this information can significantly promote transparency. This should include information about the time required to talk with all parties, timing of dispute resolution meetings, when an outcome might be expected and so forth.

  • Write down customary laws, dispute resolution guidelines, rationales and practices – As in the case for family disputes, the MOJ, Ministry of Internal Affairs and their partners should sponsor and convene community, district, county or regional conferences where customary authorities would write down customary laws, dispute resolution guidelines rationales and practices commonly used to address minor criminal offenses or disputes. These writings could be used as the basis for discussions among customary authorities at regularly scheduled conferences to discuss how customary law should be applied in specific kinds of cases.

  • Write agreements or decisions – As for all of the other dispute resolution mechanisms and procedures described above, the MOJ, Judiciary or Ministry of Interior and their partners should require customary authorities handling minor criminal cases to write down and document the outcomes of their dispute resolution processes; and describe the customary laws, common practices and standards used to guide mediation, making recommendations or binding decisions. As for other mechanisms and procedures, data on written agreements should be entered into a data base, so that the content and patterns of settlements can be tracked. Written agreements may also be used to evaluate the fairness of outcomes if a review process is instituted.

Enhancing Rights Compatibility – Ensuring that outcomes and remedies accord with internationally [and nationally] recognized human rights

  • Promote legal education on statutory laws, rules, regulations and procedures regarding how minor criminal disputes are handled and resolved This strategy should focus on ongoing legal education of customary authorities through targeted training programs about national laws and international agreements subscribed to by the Liberian government, and developing commitments that they will be considered and applied in resolving cases using customary procedures. Of particular importance will be to assure that dispute resolution procedures, fines or punishments do not violate national laws or international human rights standards.

  • Sponsor collaborative procedures to promote legal harmonization As in other instances where customary and statutory law and practices are in tension, dialogue and negotiation should be used to promote legal harmonization. Dialogue should focus on how different legal standards and procedures might inform each other, and how similar consequences should be applied for similar offenses.

  • Conduct joint case-conferencing – At the local level, the MOJ, Judiciary and Ministry of Internal Affairs should convene joint case-conferencing meetings between customary authorities and magistrates to discuss how customary and statutory criminal law can be considered and reconciled with customary practices when handling specific kinds of minor criminal offenses.

  • Create a judicial review body – A concern was raised by some judicial officials and lawyers during interviews for the Scoping Study about how fair procedures and outcomes of customary process could be guaranteed. A preventative approach that was suggested was for customary authorities and local court officials meet and reach agreement on the parameters for consequences of criminal offenses within which parties could reach voluntary agreements or customary authorities could make recommendations or make decisions.

An intervention approach would be to create a body that would periodically review the decisions and outcomes of customary procedures and service providers. If there were any problems with them, the body would have the authority to remand the outcome back to the customary authority for reconsideration or re-mediation, reverse the decision or refer the case to a magistrate for a new hearing and judgment.

  • Conduct educational programs on the rights of women – The MOJ, Judiciary or civil society organizations should sponsor training programs for customary leaders on the statutory rights of women, especially as they relate to criminal offenses and freedom from gender based violence and spousal abuse.

Enhancing continuous learning – Drawing on relevant measures to identify lessons for improving the mechanism and preventing future [disputes] grievances and harm

  • Develop a data base and look for trends – As for all of the dispute resolution mechanisms and procedures described above, data on minor criminal cases, procedures used to resolve them, timeframes in which disputes were handled and contents of written agreements and outcomes should be entered into a data base, so that patterns of procedures and outcomes can be tracked and analyzed and appropriate changes made to address any problems identified.

Enhancing engagement and dialogue – Consulting the stakeholder groups for whose use they are intended on their design and performance, and focus on dialogue as the means to address and resolve grievances

[and disputes]

  • Prepare customary authorities to use mediation to reach voluntary agreements Customary authorities handing minor criminal cases should be trained in mediation as another procedure to add to their customary practice. Training might focus on restorative justice approaches and procedures as they are highly compatible with Liberian values toward what constitutes justice.

A potential Pilot to Resolve Minor Criminal Cases by a Government-Provided Mechanism and Service Providers

As for the resolution of family and land disputes described above, the MOJ and its partners could initiate a pilot with a Ministry or judicially-based dispute resolution mechanism and related services to resolve minor criminal cases involving adults. The MOJ might also determine how it could augment and strengthen the existing mechanism for handling juvenile offenses and diversion developed by the Child Justice Forum.

If the MOJ determines to develop a pilot focused on adult offenders, non-judicial dispute resolution procedures could be used to resolve specific types of minor crimes and divert cases from pre-trial detention. The decision regarding whether or not to utilize these procedures could be made by prosecutors at the prosecution stage of a case.

Prosecutors are urged to exercise discretion with criteria adopted by the MOJ at the prosecution stage.

3.3.9 Prosecutors review evidence and circumstances of a case in accordance with the law and the Ministry of Justice’s Code of Conduct dealing with the decision to prosecute. This review is done before charges are laid; this practice is referred to as “pre-charge screening” which is the prelude to a Probable Cause determination. Where this review is conducted after charges are laid, the practice is referred to as “post-charge screening”.

The review referred to above is a crucial component of the exercise of prosecutorial discretion. It is an ongoing process and the final decision belongs to the prosecutors.118

If prosecutors decided to utilize non-judicial dispute resolution procedures and refer a case to mediation, they could do so where there is reason to believe that there is probable cause, but think that if parties can work out a legal and mutually acceptable agreement, a charge may not be necessary. Depending on the type case and terms for settlement, the case could either be closed or filing of charges might be held in abeyance until such time as it is clear that the parties have fully complied with the terms of the mediated settlement.

Alternatively, prosecutors could refer a case to mediation after charges have been filed, again to determine whether parties can work out a legal and mutually acceptable agreement. With this approach, a postmediation review of the terms of the settlement might be reviewed by the prosecutor to assure that it was reached voluntarily and addresses the harm done of the offense. If it does, the case could be dismissed; if not, the prosecutor could refer the case back to the parties for reconsideration of their agreement.

Many, if not most, of the approaches and strategies to achieve alignment of a government-provided mechanism with this focus with the “Protect, Respect and Remedy” Framework would be the same as for many of the government-based mechanisms and procedures for other pilots described above

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