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.
3 Jun 2016 13:44:38
16 Jan 2015 15:50:35
9 Jan 2015 17:20:44
19 Dec 2014 23:35:02