The Right to Access to Justice
A presentation by Tiawan Saye Gongloe
December 10, 2014
At the Auditorium of the University of Liberia
Today is International Human Rights Day, a day set aside by the General Assembly of the United Nations in 1950 to provide an opportunity for the world to celebrate the great achievement made by member states of the United Nations on December 10, 1948 when the Universal Declaration of Human Rights was adopted by the General Assembly of the United Nations.
On this day, member states of the United Nations are expected to organize appropriate programs, not only to celebrate this monumental achievement, but to reflect on the progress each nation has made in upholding the common standards of dealing with a human being or respectingthe dignity of each human being or a group of human beings as contained in the Universal Declaration of Human Rights, since it was adopted on December 10, 1948.
The rights recognized by the Universal Declaration of Human Rights are not to be respected and protected by citizens and governments, occasionally or sometimes, when it is possible or when it appears feasible or when local traditions permit or when government must adhere to it as a condition for getting aid or international assistance or support. No, the Universal Declaration of Human Rights does not provide any freedom to an individual or a state to decide when to uphold the rights contained in it. All persons and governments are expected and obligated to respect and protect human rights every second, every minute, every hour, every day, every week, every month and every year with a demonstration of the highest degree of commitment. That is why this year the international theme for this year’s celebration is “Human Rights 365” which means human rights every day of the year. This theme is clearly manifested in the call made to us all by Ban Ki-moon, the Secretary General of the United Nations in the following words, “ I call on States to honor their obligations to protect human rights every day of the year. I call on people to hold their governments to account.” In obedience to this call of the Secretary General, we in Liberia must hold the Government President Ellen Johnson Sirleaf to account for the death of Shaki Kamara, the 16 year child who was shot by the Liberian security forces. Please stand with me and observe a moment of silence to the memory this victim of human rights abuse.
Today, the basic question that we, Liberians, must ask ourselves is have we made any progress in the realization of the rights recognized by the Universal Declaration of Human Rights. Generally, my answer is yes. Before, 1948, it was normal, for example, to forcibly recruit workers to work on cash crop plantations in Liberia and abroad. The cases of Firestone and Fernado Po are well-known examples. Also, Liberians from the rural parts of Liberia were required to work on the farms of all government officials from the town chief to the President of Liberia. This does not happen anymore. Another achievement that we must boast of is that all persons in Liberia now have a right to vote and be voted for. This was not possible in Liberia before December 10, 1948. We have also made tremendous achievements in the recognition of the rights of women, who for more than a century after the Independence of Liberia were regarded as second class citizens. It is only a few years ago that the Inheritance Law of Liberia extended to women married under customary law, the same rights enjoyed by women married under statutory law. Further, we have made huge progress in respecting and protecting the right to freedom of expression, although, occasionally, government backtracks as it is currently doing in the case of the National Chronicle Newspaper that has now being closed for months without any legal justification.
While we have made progress as a nation, we still have a lot to achieve in the realization of the rights contained in the Universal Declaration of Human Rights. For this year’s celebration of Human Rights Day, the Independent Commission on Human Rights and its partners have decided to focus on whether in Liberia all persons have the right of access to certain basic rights required for the general improvement of the human condition such as right of access to education, health and justice.
I have been asked by my good friend and Chairman of Independent Commission on Human Rights to make a presentation on the topic: “The Right of Access to Justice” considering the outbreak of the Ebola virus disease in Liberia.I believe the concept of justice being considered by this topic is what the Ninth Edition of the Black’s Law Dictionary defines justice to be, the fair and proper administration of laws.
In Liberia, the administration of justice is done by both Executive agencies of government and the judiciary. The chiefs under the direction of the Minister of Internal Affairs administer justice to the people under their authority based on local customs, traditions, ordinances and laws relating to property rights such as right to land. The Ministry of Labor, an executive agency of government for example adjudicates labor disputes. The courts of Liberia broadly administer both the criminal and civil laws of Liberia.
The basic question posed by the topic is whether everyone who seeks justice in Liberia has access to justice. The general answer is yes, if he or she can afford the price and have the patience to wait, some times for a very long time. The access to justice in Liberia is hindered by a number of constraints. The first is infrastructural. Sometimes the nearest forum for justice, whether administrative or judicial is, most often located at a very far distance from the residence of a person seeking justice. Most parts of the country do not have access to motor roads, so a person seeking justice in such areas have to walk for hours or days to reach the nearest forum for justice. This situation discourages a lot of people from seeking redress for the violation of their rights. Where there are motor roads, there are some aggrieved persons who cannot afford to pay the transportation in order to reach the nearest forum for justice. Sometimes those who can afford to reach the forum of justice, have difficulty to stay around the location where the forum or tribunal for justice is located because they find it difficult to afford hotel accommodation and food. When all these basics are taken care of, then a person seeking access to justice is faced with the problem of retaining the services of a lawyer and paying the fees for filing papers and for service of papers on the person against whom a complaint is made. This sometimes requires transportation of court officers. Interestingly the fees are not standardized. There is not an upper limit for the fees that persons seeking justice are required to pay lawyers for various categories of cases. This situation makes it difficult for poor persons to afford legal representation. The other situation is that there is not an established fee that persons seeking justice are required to pay for clerical services for filing and preparation of summonses and citations as well as fees for service of papers. Persons seeking justice face this situation both at administrative and judicial fora.
Another important constraint that hinders access to justice is the difficulty of people living in places that are far away from the Supreme Court to seek remedial reliefs from the justice in Chambers of the Supreme Court and to have matters that may not have constitutional issues settled as quickly as possible. These situations tend to discourage party litigants. There are more constraints that could be identified and discussed. However, I will stop here and make the following recommendations for improving the current situation of access to justice:
1. Given the difficulty for poor people to have easy access to justice, I suggest that use of alternative dispute resolution methods for both civil matters and criminal matters that fall below third degree felony, using human rights friendly traditional methods that each community is accustomed to. In order to ensure that the standard of due process are maintained and the rights of the litigants are not violated in any manner, the process of alternative dispute resolution should be monitored by a human rights monitor, if possible and a report on the resolution of a matter taken for resolution using an alternative dispute resolution approach should be made to the police or court where such a matter was being handled before same was taken for arbitration or other forms of alternative dispute resolution. It is important after the receipt of the report by the police, magistrate, judge or an administrative officer, for the forum of justice to ascertain from all parties whether they are satisfied with the outcome of the process. This approach to justice will help to speedily decongest the dockets of the courts, especially in dealing with theft cases and land related matters, which are the cases with a higher frequency than other type of cases. Also, this approach will certainly decongest the prisons and prevent the possibility of infection by diseases such as Ebola while in prison, or while awaiting trial or serving a jail sentence.
2. The judiciary should set upper limits for what party litigants should pay as legal fees for lawyers in order to make legal services affordable for a greater majority of the people.
3. The Judiciary should set fees for the preparation, filing and service of papers and review such fees at least once a year in order to adjust based on inflation.
4. The Judiciary law should be amended to provide for courts of appeals to be established at least in four regions of Liberia. The functions of those courts should be to deal with remedial processes and to put finality to matters that do not raise constitutional issues.
Although, Article 66 of the Constitution of Liberia says that the Supreme shall be the final arbiter of all matters, it is possible that with the existence of an intermediate court between the circuit court and the Supreme Court, fewer cases may be taken to the Supreme Court and thereby reduce the docket of the Supreme Court.
With these few recommendations, I thank you for listening.