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

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Chapter 1 – Introduction

In the last six months of 2013, the Liberian Ministry of Justice (MOJ), with financial assistance from the World Bank, launched a three-year initiative to design and implement a pilot project to test the viability and increase the effectiveness of dispute resolution procedures that can augment and complement the government’s judicial system and adjudicative processes. The impetus for the MOJ’s initiative are potential positive aspects of ADR/CDR as well as ways to address difficulties or barriers experienced by prospective or actual users of current judicial procedures. Possible positive aspects of the use of ADR/CDR include – accessibility of users to dispute resolution services, lower transaction costs, rapid outcomes, an emphasis on reaching voluntary consensus agreements or mutually acceptable decisions, potential restoration of damaged relationships, returning harmony to groups and communities and compatibility with Liberian view and values about what constitutes justice. Barriers to be addressed by users of the statutory judicial system include a high number of civil and criminal cases and disputes, difficulties of citizens accessing stateprovided courts and associated procedures, the adversarial nature of formal judicial proceedings that often are at odds with Liberian cultural expectations for satisfactory dispute resolution and justice, significant transaction costs of litigation, procedural delays, increased congestion of court dockets, extended pre-trial detentions, and crowded jails and prisons.

The first step of the MOJ’s initiative is to conduct a study to explore the feasibility of, and strategies for, piloting alternatives to formal state-sponsored adjudicative procedures provided by the Judiciary and courts. This study addresses the following topics and related questions:1

  • Access to justice: What it is and why it is important;

  • Liberian values concerning dispute resolution and their relationship to restorative justice;

  • Types of disputes currently occurring in Liberia that could benefit from dispute resolution assistance available outside of the formal judicial system;

  • Non-judicial dispute resolution: “Alternative Dispute Resolution” (ADR) and “Collaborative Dispute resolution” (CDR);

  • Types of non-judicial dispute resolution mechanisms, approaches and procedures in Liberia, who provides them, how they respond to citizens’ dispute resolution requirements at the local level and address the needs of marginalized groups;

  • The current legal and institutional framework in Liberia that permits, encourages or constrains the use of non-judicial dispute resolution; and

  • Strengths of current mechanisms, approaches, procedures and personnel that can be enhanced or built upon; gaps in services and providers; and programmatic options for a pilot to help create an interconnected non-judicial mechanisms of dispute resolution ; and

  • Identification of emerging conflict issues that either of the two systems of justice (customary and statutory-judicial) have remained silent on in Liberia’s Post-War Reconstruction.

The Study will be used by the MOJ and its partners to determine the focus and scope of the pilot, and the non-judicial mechanisms, procedures and service providers that should be implemented and used to provide Liberian citizens greater access to justice.

Readers wishing to understand the range of disputes that occur in Liberia should turn to page 9. Types of non-judicial dispute resolution mechanisms and procedures in Liberia are detailed beginning on page 27.

Current legal and institutional frameworks in Liberia that permit, encourage or constrain the use of nonjudicial dispute resolution are outlined beginning on page 59.

Strengths of existing mechanisms, procedures and personnel and a gap analysis are presented on page 71.

Finally, potential options for the pilot are presented beginning on page 77.

Chapter 2 – Access to Justice: What it is and why it is Important2

Citizens and communities need trusted, efficient, timely and cost effective ways to voice their concerns, problems and disputes. They also need effective and efficient procedures to get them resolved in a mutually satisfactory manner according to the law and societally acceptable standards and criteria. Governments and other social organizations need to provide mechanisms, procedures and dispute resolution service providers to achieve these outcomes.

The Government of Liberia, MOJ, the Judiciary other Ministries and diverse national and international organizations and donors have made clear and firm commitments to enhance citizens’ access to justice in Liberia. These are recorded in a variety of government documents and plans including, but not limited to, the: “Agenda for Transformation: Steps Toward Liberia Rising 2030”; “The Liberia National Vision 2030”; “The Poverty Reduction Strategy, Republic of Liberia”, and “Towards a Reconciled, Peaceful and Prosperous Liberia: A Strategic Roadmap for National Healing, Peacebuilding and Reconciliation”.3

For many years, there has not been a clear internationally recognized framework or standards for the responsibilities of state and non-state actors to protect human rights and insure access to justice. In 2005,

Kofi Annan, the Secretary General of the United Nations, appointed John Ruggie as the Special

Representative of the Secretary General, and requested that he research and develop such standards. It was expected that the standards developed would become both benchmarks for responsibilities and to standards and criteria to measure the performance, effectiveness and alignment of state and non-state dispute resolution mechanisms and procedures in achieving these goals. In 2008 – after three years of intensive consultations with governments, civil society, businesses and research – Ruggie presented the “Protect, Respect and Remedy” framework to the UN’s Human Rights Council. This framework has become known as “The Ruggie Principles”.

While originally focused on state and business actors’ responsibilities to assure access to justice, the Framework also identifies specific standards for non-judicial dispute resolution systems, mechanisms and procedures. The “Protect, Respect and Remedy” Framework requires that any non-judicial dispute resolution system, mechanism or procedure be:

  1. Legitimate: enabling trust from the stakeholder groups for whose use they are intended, and being accountable for the fair conduct of grievance processes;

  1. Accessible: 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;

  1. Predictable: 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;

  1. Equitable: seeking to ensure that aggrieved parties have reasonable access to sources of information, advice and expertise necessary to engage in a grievance process on fair, informed and respectful terms;

  1. Transparent: keeping parties to a grievance informed about its progress, and providing sufficient information about the mechanism’s performance to build confidence in its effectiveness and meet any public interest at stake;

  1. Rights-compatible: ensuring that outcomes and remedies accord with internationally recognized human rights;

  1. A source of continuous learning: drawing on relevant measures to identify lessons for improving the mechanism and preventing future grievances and harm;

Operational-level mechanisms should also be:

  1. Based on engagement and dialogue: consulting the stakeholder groups for whose use they are intended on their design and performance, and focusing on dialogue as the means to address and resolve grievances.4

The “Respect, Protect and Remedy” Framework will be used in this study to assess characteristics and evaluate the effectiveness of existing Liberian non-judicial dispute resolution mechanisms, approaches and procedures.

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