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Community Paralegals: Posing the Hard Questions

Editor’s Note: This blog originally appeared on the International Network to Promote the Rule of Law (INPROL)’s website.

On the 9th of July 2012, I was fortunate to attend, along with representatives of 50 organisations from 20 sub-Saharan African countries, the inaugural ‘African Regional Workshop for Community-based Paralegal Programs’ in Kampala, Uganda. Jointly organized by NamatiGlobal Rights, and the Open Society Justice Initiative, the three-day workshop provided the first-ever opportunity for implementers of paralegal programs from across the region to come together to exchange experiences and discuss strategies for addressing some of the challenges they face in executing their programs. The workshop included presentations on a range of topics, including addressing gender-based violence, land and state accountability cases, paralegal training, case management systems, national legal aid systems and the role of paralegals. A daily paralegal ‘fair’ was held where workshop participants could engage with experts on more specific issues including methods for raising community legal awareness, how to implement paralegal training, program monitoring and evaluation, and sustainability.

The workshop provided the first-ever opportunity for implementers of paralegal programs from across the region to exchange experiences and discuss strategies for addressing some of the challenges they face in executing their programs.

One of the most significant outcomes of the workshop was the drafting and adoption of theKampala Declaration on Community Paralegals, which calls on governments to recognize the role community paralegals play in providing primary justice services, to invest in the scale-up of paralegal efforts, and to protect the independence of paralegals.

Community paralegals are part of a growing global movement for legal empowerment. Legal empowerment uses law as a tool for change – to empower citizens and communities as agents in their own development, demand accountability of the state, and foster the rule of law and peaceful dispute resolution. Legal empowerment offers practical legal solutions to everyday problems of the vulnerable and marginalised by using community-driven models, such as community paralegals, and by adapting and responding to local contexts, including engaging informal or non-state justice systems.

Whilst the ‘theory’ of legal empowerment is now much more widely accepted and supported, the international community is still grappling with exactly how to ‘do’ legal empowerment. Community paralegals, in Africa and other regions, are an increasingly popular legal empowerment tool. Since the time of Black Sash and the anti-apartheid movement in South Africa to present day, paralegals have played a critical role in the promotion of human rights, rule of law and access to justice for members of their community.

The Kampala workshop marked an important event for uniting paralegal programs and practitioners, for creating and strengthening inter and cross border linkages, and for promoting the community paralegal movement. Yet, sometimes the greatest benefits for programmatic development can best be found in understanding what went wrong in programmes, and how those challenges were or were not overcome.  Indeed, as someone who has both designed and implemented paralegal programs in several countries, I would maintain that efforts to promote and advocate the benefits of paralegal programs also need to be matched by in depth discussions of program weaknesses and lessons learned to guide both nascent and well-established paralegal programs to greater fulfil their potential.

An opportunity to discuss challenges

To this end, workshop participants discussed challenges in paralegal programming, including the modality and quality of paralegal training, levels and types of remuneration, state recognition,  resistance from the legal profession, engagement with existing local dispute resolution mechanisms, monitoring and supervision of paralegals, how to measure project impact, and project sustainability. These are some of the challenges many of us face on a regular basis through our work. We all have stories of when things have not gone to plan – such as when a group of newly empowered paralegals went on strike demanding higher remuneration and later threatened to sue the implementing organisation for breach of employment law; when paralegals advised a victim of domestic violence to go home only for her to be killed by her abusive husband days later; or when paralegals became the target of state persecution and their advice centres were shut down by government forces because of their work.  Unfortunately, due in large part to management and donor expectations to show successful outcomes, the process and the challenges encountered are rarely articulated, and even less seldom recorded, beyond anecdotal stories shared amongst harried colleagues.

I do not have all the answers to these challenges, and nor did we find them at the Kampala workshop; however, the workshop did provide a valuable opportunity to begin the process of articulating some of the challenges and posing some of the hard questions.

Training

It was generally agreed at the workshop that one-off, ad hoc, or unorganised paralegal trainings are not adequate. Providing a new paralegal with a little bit of information and then asking them to become a trustworthy, knowledgeable problem solver in their community will lead to ineffectiveness at best and at worst the ‘Icarus effect’ where an unequipped paralegal seeks to solve problems well beyond their capacity. A well-tailored, comprehensive yet simple course that involves an adequate level of ‘on-the-job’ or onsite training and field supervision is much more desirable, although more time consuming, and financially and human resource costly. Paralegal training should be interactive and highly participatory, and could be based on a training manual and quick reference legal guide for paralegals. Paralegal supervisors should be involved in the entire training program, both as participants and, where applicable, trainers, as they will ultimately be reviewing the paralegal cases, ensuring the quality and accuracy of legal advice being given, monitoring dispute resolution activities and regularly reviewing the paralegal record keeping. Ongoing training and strong supervision are essential as ultimately, the quality of the training equates to the quality of the paralegal service provided.

Community buy-in

A community paralegal program will only work if there is buy-in from the community the paralegals seek to assist. The process of identifying paralegals and establishing a program within a community should be transparent and involve a large amount of community engagement and consultation. Paralegals should be respected members of the community, with strong communication and people skills. Indeed a major benefit of community paralegals is that they have a strong sense of the dynamics of their community. They understand the social and cultural context and provide a unique bridge between the informal/customary laws and the formal laws. They can offer solutions to local problems that, whilst not necessarily always achieving what a pure legalist may want, are context-specific and meet the actual justice needs of the individual or community.  Acceptance of paralegals within a community will in large part hinge on their success – news of one resolved problem and a satisfied client will travel fast.

Paralegals can offer solutions to local problems that, whilst not necessarily always achieving what a pure legalist may want, are context-specific and meet the actual justice needs of the individual or community.

Legal community buy-in

In addition to community-acceptance, paralegal programs’ success is largely influenced by the legal community. Challenges arise from the resistance paralegals often face from local legal professionals who worry that paralegals will ‘steal’ their cases and undermine their livelihoods by providing free legal assistance to community members. Lawyers, bar associations and other legal aid providers may all be resistant to a paralegal program. In actuality, however, paralegals compliment the work of formal lawyers. Community paralegals tend to be less costly than lawyers, and are often based in rural areas where there are few, if any, lawyers and limited access to the formal justice system. They identify cases that lawyers would otherwise not have been able to identify or access. They can assist the lawyers in preparing the case, obtaining statements, documents and other necessary materials, and act as a go-between translating the lawyers ‘legalese’ to the client and ensuring the lawyer is updated with local developments on the ground. Sometimes, just using the term community ‘paralegal’ triggers the negative response from lawyers and other paralegals Adopting another name – such as community resource persons or community justice advisors – may be advisable.

Relationship with the state

The relationship between community paralegals and the state was a key talking point of the Kampala workshop. The issue of whether paralegals should be formally recognised by the state, through legislation for example, was strongly debated. The Open Society Justice Initiative supports formal recognition of paralegals through legal aid legislation, such as the legal aid bill recently enacted in Sierra Leone which establishes a Legal Aid Board and endorses paralegals, university law clinics, civil society organisations and non-governmental organisations, alongside legal practitioners, as providers of legal aid services. Such legislation strengthens the state’s obligation to provide legal aid and will hopefully enhance the sustainability of paralegals in the long term, reducing reliance on external donor funding.  Currently, most countries do not formally recognize community paralegals or provide state funding.

State recognition, however, could potentially impact community paralegal’s independence. Maintaining independent paralegal programs that help people challenge injustices committed by the state and that can oversee state action can be an important element in the democratisation process. Yet concerns may arise where recognition by a legal aid board or other state body, and/or including state approved accreditation, may narrow the concept of paralegals and restrict their scope of work. At the same time, one of the challenges paralegals often face in their work is acceptance and legitimacy of their role by local authorities, including the police and even prison authorities. State recognition could provide this legitimacy. By being involved in the process of attaining state recognition from the start, paralegal organisations and other interested parties should encourage recognition to be formulated in a manner that does not in and of itself limit the role paralegals can play.

Funding and sustainability

For many organisations operating paralegal projects, donor funding tends to be restricted temporally, topically and in quantity. Multi-year funding is rare and donor funds tend to be scattered and ad hoc with few applying a long term comprehensive approach to paralegal or legal empowerment programs. Hence the issue of sustainability lies at the very crux of paralegal programs.

At the workshop, organisations discussed several innovative approaches to the funding issue. Some organisations discussed the concept of cost recovery mechanisms – for example, can you ask clients or communities to make a financial or in-kind contribution for the assistance paralegals provide? One organisation had an agreement with the Department of Justice to receive free internet services and have call centres at all of their advice offices. Some receive pro bono legal assistance from local law firms. Another idea was to create a dedicated fund into which donors and government could contribute without the usual temporal and activity restrictions, helping to mitigate the risk that donors push for a project in a location where perhaps society is not ready or is not in need of it. Successful paralegal projects generally emerge from the ground up, except perhaps in places where civil society is so weak that outside support or an external ‘spark’ can be justified.

Related to the question of sustainability is the issue of remuneration for paralegals. There is a wide variety of remuneration models – from volunteers who are reimbursed basic transport and communication costs financially or in kind, to those receiving small stipends or allowances, to full salaried positions. There is no clear rule on what a community paralegal is paid or not, and the decision must be made on the basis of the local context. Yet setting a rate that is acceptable to the community, and yet is within your budget and does not distort the local economy of scale may be difficult. Often additional incentives may be useful, such as scholarships or micro-credit funds.

The broader takeaway

Sitting in a conference room listening to representatives from more than 50 organisations discussing their paralegals’ ‘wins,’ whether on an individual case or in changing policy and legislation, it was clear to me that paralegals have the capacity to be powerful forces in the advancement of the rule of law and access to justice for the most vulnerable.

As practitioners not only will we benefit from discussing what has worked, but also exposing what went wrong and learning from that process. What anticipated or unanticipated challenges have we come upon, how have we been able to address them, and with what success? Strong monitoring and evaluation mechanisms involving quantitative and qualitative tools are crucial to show the impact of different types of interventions, to explore lessons learned, and to determine how best to adapt, develop and move programs forward. Data collection and management processes are also important to ensure information gathered by paralegals is not merely fed into donor reports but also informs broader organisational programming and advocacy and lobbying efforts on issues relating to human rights, justice and the law.

For those looking to establish a paralegal program, the above comments and questions may offer some guidance to the potential issues and challenges that may be faced. For those currently undertaking programs, many of the hard questions posed will be familiar. It is time now for us to expose these problems and begin to seek possible solutions … just like a paralegal would!

For further reading on paralegals, there are a multitude of articles in a dedicated section of the INPROL Digital Library, in addition to many useful online resources, such as the Namati Tools Database and OSJI’s Practitioner’s Guide.


 Leanne McKay is an experienced independent consultant, working in all corners of the the world managing and implementing rule of law and access to justice programs in conflict and post-conflict settings.  To list just a few, she has worked for UNDP Sudan, UNDP Somalia, IDLO Aceh, NRC oPt, GRM Yemen, the ICTY, AMERA Egypt, Melbourne University Law School and the NZ Refugee Status Branch.

 


August 27, 2012 | Leanne McKay


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