Mobile Courts' Missing Ingredient: An SSR Perspective?

by Lara Deramaix · December 17, 2014.

This post is also available in French

In the Democratic Republic of the Congo (DRC), a country characterized by the virtual absence of the State outside the capital, Mobile Courts programing has proven surprisingly successful at extending the reach and effectiveness of the judicial system. Enforcement of judicial decisions, however, continues to undermine the establishment of the Rule of Law and the achievement of genuine justice. By applying an SSR perspective and including other justice system actors, most importantly the police, there appears to be an opportunity to build upon the successful model of Mobile Courts programming to deliver more holistic Mobile Justice System programming. 

Mobile Courts - rationale and description  

The first Mobile Courts program in DRC (2004, supported by DFiD) was primarily designed by Avocats Sans Frontières (ASF) to address the justice needs of the communities in remote areas. The small number of jurisdictions relative to the size of the country meant that some people have to travel more than 100 miles to access a Court, a distance aggravated by poor travel and communication infrastructure. Based on provisions of the Law organizing the Judiciary, the purpose of the program was to move the Courts of three provinces, during short periods of time, from the main cities where they were based to local towns under their jurisdiction.  

The program included several components:  

1   Institutional support to the Justice system: 3 Judges, a Clerk, a Bailif and a Prosecutor would travel, following a schedule set in advance, to hold the Court sessions (both civil and criminal);  

2   Free legal aid services: lawyers would assist all the people in need and defend the cases;  

3   Legal outreach: community leaders and/or civil society organizations would, prior to the arrival of the Court, inform and prepare the communities;  

4   Community oversights mechanisms: a team of people would be trained to observe the trials and to inquire on the satisfaction of those accessing the Courts.  

 

Results, good practices and lessons learnt  

The results of a program that was initially regarded by many with skepticism (the justice system is corrupt and barely works, why would you invest in such a challenging program?) went far beyond expectations. It remains, in my opinion, one of ASF's most interesting programs to date because it made it possible for a very large number of people, regardless of the results of their case, to experience a functioning justice system. It was also a demonstration that, with good management, proper allocation of resources and adequate oversight, the Congolese justice system, even if not perfect, could effectively address the justice needs of its communities. In all provinces, the number of judicial decisions exceeded significantly the usual for the same Courts. Civil cases that were pending for years were dealt with, and Courts put an end both to irregular detentions and to a series of impunity situations. The presence of the Courts effectively meant the reestablishment of the Rule of Law, especially in areas where communities were subject to the abusive authority of illegitimate individuals who often had taken over the justice functions in the absence of the Courts.   

A number of good practices contributed to the success of the program, and especially:  

1   Local ownership at all levels: Mobile Courts were based on an existing legal framework, the Congolese authorities and actors were involved in the program design and implementation, and above all, their legitimate needs and interests were taken into account;  

2   Effectiveness and accountability as key objectives: a set of Mobile Courts' rules was defined and made mandatory for all participants. This included professional codes of conduct and effective service delivery obligations, but also a reporting mechanism to foster accountability between the actors themselves (and not only towards the project);  

3   Integrated approach: working simultaneously both at the institutional and the community level was very effective. Actors at both levels were involved and held responsible for fulfilling their duty. At the same time dialogue was possible when issues arose. This integrated approach also allowed for a deeper understanding of the judicial system at all phases of the process.    

Since 2004, the program has been widely duplicated by different international actors (ABA, UNDP, OSI, and others) to the benefit of remote communities in DRC. Subsequent multi-donor Justice Reform Programs (REJUSCO, PARJ-E) included Mobile Courts programming. Support was also provided, through the coordinated efforts of international actors including the OHCHR and MONUSCO, to the organization of Mobile Military Courts for the prosecution of international crimes. For example, the recent life-sentence against former high-ranking officer and warlord Engangela (colonel "106")  for crimes against humanity -a landmark decision in the fight against impunity in DRC - was pronounced by the Military Court of South-Kivu during a mobile session in Kahele.  

It's also worth mentioning that in April 2014, the Superior Council of Magistrates of DRC adopted the Guide for Mobile Courts, based on the rules of the initial program, and since then has advocated to make it mandatory for all the Courts of the country. If that happens eventually, it would be a great achievement in terms of institutional development.  

All this success, however, is tempered by a critical problem. Among the lessons learnt, one of the most important has not yet been successfully addressed: all too often, it is difficult to obtain enforcement of the judicial decisions. A land dispute might end after the Court’s decision is delivered to both parties if they are willing to abide by the decision, but what if they are not? A victim of a crime might be relieved to hear that the perpetrator is sentenced to jail, but what if he is not arrested promptly, or if he can readily escape from prison? Whether in civil or criminal cases, enforcement of judicial decisions often requires police intervention, and this intervention remains unpredictable. Yet, if coordination efforts have been made, the police is never, as far as I know, effectively engaged in Justice programming.  

 

Towards a Mobile Justice System?    

The problem of enforcement of judicial decisions goes beyond the Mobile Courts program. Legal aid programs, including those addressing international crimes, such as mass atrocities or sexual violence, have often witnessed perpetrators escaping justice despite a sentence, because the security forces fail to arrest them or because the prison facilities are unable to keep them in jail. This not only hampers the programs and undermines the credibility of the whole judiciary, but also prevents the full establishment of the Rule of Law.  

This situation  also clearly illustrates the relevance of a holistic approach that would include the security sector actors in justice programming. Other options might be explored, but I think that Mobile Courts programming, which has proven so successful in enabling the actors work together, would be a perfect model to build on for the more holistic idea of a Mobile Justice System. 

The views and opinions expressed in the following blog and comment postings are those of the authors, and are not necessarily the same views held by ISSAT, DCAF, or their Governing Board Members.

Discussion

Anicia Lala
3 Jun 2016 13:44:38

Some thoughts spring to mind on the relevance of mobile courts as an area for programming in the context of Security and Justice. A recent mandate to Guinea Bissau confirmed how consultation to national stakeholders prior to program design is crucial to verify earlier made assumptions, or even actions agreed upon. The time that elapses between cycles of programming changes expectations, even when the national actors and the structural problems in the sector remain the same. Whilst in 2009 there was widespread acceptance from the justice system actors for a mobile court programme to be formulated and implemented, nowadays there is almost total absence of support for that solution. At the time, the discussions and the lessons had been based on Brazil’s use of that method to reach areas otherwise not covered by judicial infrastructure. The mobile courts were apparently implemented there with satisfactory results in terms of access to justice, inspiring the Bissau-Guineans to try it.

Nonetheless, at the present, the Guinea Bissau justice system actors are highly sceptical of such solution, preferring longer-term options, which imply investment in infrastructure. In the meantime they would favour support for wider territorial jurisdiction being awarded to magistrates of certain regions, accompanied by material resources (human resources and means of transport, etc) to allow their regular deployment to the selected areas. In terms of sustainability, this argument seems as fallacious as that of the transient nature of mobile courts. Either option will only have impact, if after donor support in the short to medium term, the implementing country/government gradually takes-over. Hence, there are no guarantees that even if donors initiate support resorting to the preferred option, afterwards the Guinea-Bissau state will continue it, even if there appear to be pressing needs, in particular in the South provinces. Do you/anyone know of programmes beyond the DRC where the mobile court system has been piloted and then successfully continued by the national authorities?

Implementing a mobile court pilot programme with positive results could likely generate the will of the Bissau Guineans to proceed further; yet your highlighted lesson/good practice that local ownership needs to be present should prevail in the selection made by donors of areas to support.

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Anicia Lala
16 Jan 2015 15:50:35

I think this brings us a refreshing example of what is being done in terms of contemporary judiciary reforms in Africa.  Whilst the concept of mobile courts might have been around for a while, and its practice has been implemented elsewhere in the world, in most African countries this has not been the case.   At least not in a consistent manner throughout the continent, and not in this type of foreign funded initiatives that encourage a collaborative setting between the various justice chain institutions.   

The blog highlights that the absence of the Police is a major gap because of the enforcement of judicial decisions.  But in addition, by integrating such programmes the Police would benefit from improving their investigation skills in support of judicial cases, and through the presentation of solid case evidence they would contribute towards overall better delivery of justice.  Unfortunately, the example Lara brings us confirms that despite the discourse having long acknowledged the need for the involvement of all criminal justice chain institutions in reform initiatives, very few programmes seem to be practicing this.  Whether it is just a matter of programming costs is debatable; in many cases it has also to do with in-country institutional schisms between the police and the judiciary. In particular, in some countries undergoing democratisation processes, the adoption of the principle of separation of powers is abused to justify parochial institutional interests.  Hence, the independence of the judiciary may preclude the observance of the necessary interdependence with institutions placed under the executive branch, as is sometimes the case with the police.

A different example from the DRC is the case of Mozambique where no foreign funded programmes exist to support mobile courts.  However, the country had a post-independence experience of judges leaving their centrally located desks to go deliver justice in far localities.  Partly drawing on that legacy, but also on the more recent establishment of ‘Legality Commissions’, some of the recently trained judges have coordinated and pooled resources with the prosecutor, the police and the local authorities of their administrative area to carry out joint sensitisation actions about the law and judicial procedures, albeit not to carry-out formal court sessions.  Unfortunately this is not general practice across the country, because of the time and resource constraints. 

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Lara Deramaix
9 Jan 2015 17:20:44

Thank you for sharing with us your experience, the MJWG appears to be a very interesting and successful endeavor in terms of coordination. Please keep us informed on further developments!

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David Buzard
19 Dec 2014 23:35:02

The broader implications to SSR of the DRC’s “mobile courts” – reminiscent of the “circuit riders” of 18th/early 19th century North America – are evident, and the efforts undertaken in this vein by the courageous and heroic Congolese magistrature and Bar, with the generous support of ASF, RCN, PARJ, UNDP, ABA ROLI, MONSUCO, et al., are laudable.

Due to the large swath of military jurisdiction in the DRC – which, due to personal (army and police) and subject-matter (all crimes committed with a “weapon of war,” plus crimes under the Rome Statute) jurisdiction, cuts across all three pillars of the Security Sector, more often than not supplanting civilian penal jurisdiction – this clearly is a subject to be addressed by the Military Justice Working Group (“MJWG”).

The MJWG recently stood-up after many years’ effort by dedicated officers from the DRC Haute Cour Militaire and Auditorat Général, with the advice and assistance of EUSEC RD CONGO* and the United States during these past 18 months. The MJWG’s purpose is, “within the framework of the reform process of the Armed Forces of the Democratic Republic of the Congo (‘FARDC’), … [to] constitute a forum for dialog between the FARDC, state actors, civil society, and partners from the International Community (“IC”), in the domain of military justice, with a view toward implementing coordinated and complementary priority projects.” (from, Termes de Référence [translated].) This forum is composed of all key actors and influencers of military justice policy within the FARDC, the DRC Government, and civil society, plus all interested parties from the IC (i.e. those who do, intend, or express the desire to execute or fund military justice-related projects).

Just last week, EUSEC formally transmitted the WG’s Terms of Reference (drafted by consensus after many round tables, plenary meetings, and several core-group meetings) to the Premier Président de la Haute Cour Militaire and the Auditeur Général près la Haute Cour Militaire – the two co-Presidents of the MJWG – for their respective approval and joint transmittal to competent authority for official state sanction of the MJWG.

* “European Union Security Sector Reform Advisory and Assistance Mission to the Congolese Armed Forces.”

Submitted by: David Buzard, CDR, JAGC, USN (Ret.), SSR Advisor, EUSEC RD CONGO (seconded by US Dept of State, Africa Bureau, Office of Regional and Security Affairs, via contract). +1 757 513 1117; david.buzard@cox.net.

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