The Right to Access to Justice is Denied to Some Two Thirds of the World’s Population. How Can We Close the Global Justice Gap?

[Julie Fraser is an international lawyer from Australia and an academic with The Netherlands Institute of Human Rights at Utrecht University. 

Dr. Annette Mbogoh is currently a Board member of the Independent Policing Oversight Authority and law lecturer at University of Nairobi. She is a Kenyan social justice practitioner and scholar with over 18 years working experience.]

Around the world there is a global justice gap, where more than 5 billion people lack meaningful access to justice. Given that conflicts – big or small – are a part of life, this justice gap represents a huge problem. ‘Alternative’ justice system (like bodies made up of traditional elders or religious leaders) have the potential to help fill this gap – but are often misunderstood by practitioners and policymakers. We want to change that. The lived realities of many people in the world reveal that customary and informal justice systems can close the justice gap. 

After all, access to justice is not a luxury issue or aspirational good. It is something that we all need. In fact, under international law, access to justice is protected as a key human right, guaranteed in treaties like the International Covenant on Civil and Political Rights and the African Charter on Human and People’s Rights. Goal 16 of the UN Sustainable Development Goals includes “access to justice for all”. Similarly, Aspiration 3 of the African Union’s Agenda 2063 reaffirms the need for access to justice. Access to justice is also protected nationally, for example in the Constitutions of states like Ecuador, Kenya, Morocco, Tunisia, and Thailand. 

Where Do People Go to Find Justice?

People can and do find justice in different places. In India, people can consult traditional Adalat courts and in Indonesia Islamic courts are part of the formal judicial system. South Africa recognises customary law alongside national law, and the Kenyan Constitution in Article 159 promotes alternative justice systems including traditional dispute resolution. The 2020 Judiciary policy on alternative justice systems considers these systems as a necessary component of access to justice and seeks to give effect to the Constitution. International law allows for this broad approach to justice, where is it delivered in a range of ways and not only through formal state court systems. 

This is good news, because in Kenya, some 90 per cent of the public do not go to state courts but rather use alternative justice mechanisms, such as consulting village chiefs, religious leaders, community-based paralegals, council of elders, police and probation officers, child welfare officers, and civil society organisations. The same is true in other states like Burundi, Sierra Leone, Zambia and Malawi. Based on these numbers, the state courts should appropriately be considered as the ‘alternative’. 

Like in many countries, Kenyans use alternative’ justice systems as they are fast, accessible, inclusive, flexible, and culturally appropriate. People can speak their own language and advocate for themselves. It is usually much cheaper too – especially when compared to state courts, which may have filing fees, require paying a lawyer and/or a translator, and include high transport costs as they are far away from where people live. Alternative justice systems also focus more on the relationships between the parties and on finding a good balance – unlike state courts that unilaterally declare a winner and a loser. 

Lack of Due Process Protection

However, human rights lawyers are often critical of how alternative justice systems function as there can be limited accountability, few written records, and a lack of compliance with due process protections like an impartial judge or access to a lawyer. For example, traditional courts – gacaca – were used to complement the work of the UN’s International Criminal Tribunal for Rwanda following the genocide in 1994. While the gacaca were welcomed as an innovative way to deal with the huge number of cases to be heard in that conflict, they were also criticised for skimping on due process. 

While ‘alternative’ systems do not always comply with human rights standards in terms of process or outcome, the same can be true of ‘formal’ courts. They are known for being (sometimes prohibitively) expensive and slow, with some cases lasting years. Also, the adversarial nature of formal courts may result in unfair, unjust and unilateral outcomes. Notably, many ‘formal’ systems struggle to provide sufficient legal aid to disadvantaged parties before the courts. The UN Human Rights Committee has raised its concerns: “about the depletion of legal aid lawyers” in the UK; “at the decrease in funding allocated in the legal aid sector” in the Netherlands; and “the excessively long procedure for applying for legal aid or waivers from judicial fees” in Greece. 

As sometimes in alternative systems, the outcome of cases before formal courts may also be influenced by the biases of judicial officers, especially where the courts have discretionary power. For example, a UN Committee monitoring racial discrimination found that in the USA, “persons belonging to racial and ethnic minorities, including women, are overrepresented in the criminal justice system … and subjected to harsher sentences”. 

While the USA has a particular problem of structural racism due, largely, to its history of racialized chattel slavery, it is not the only country with this problem. That same UN Committee has claimed that “no country is free from racial discrimination in the administration and functioning of the criminal justice system, regardless of the type of law applied or the judicial system”.

The efficacy of formal courts is sometimes clouded by lack of independence, interference, selective application of the law and perceptions of judicial corruption especially in high stake cases thereby compromising the right to access justice for all. This trend has been noted in both developing countries and developed economies. Transparency International noted that, globally, almost half of those surveyed (46 per cent) perceived their judiciary as corrupt. In Cambodia, shortage of judges and courtrooms cause delay for many cases. However, court officials are reported to “prioritize cases with a higher likelihood of benefitting them financially.  Equally, interference and perceptions of corruption do arise in alternative justice systems. It would be unrealistic to believe otherwise. 

Persistent Presence of Gender Discrimination

Another problem with alternative justice systems is that they may disadvantage women and marginalised groups due to bias or discrimination. While it is often remarked that women are excluded from alternative systems, this can also be said of formal systems. Around the world, judiciaries unfortunately remain male dominated. 

Under human rights law, women have the right to equal representation on decision-making bodies like courts. However, in practice, the UN has found that only “a relatively small number of women have been, or are part of, the judiciary, particularly at senior judicial leadership positions.”

In fact, for the US Supreme Court’s first 200 years, only two women sat on the bench: Sandra Day O’Connor appointed in 1981; and Ruth Bader Ginsburg in 1993. Similarly, only men sat on the judicial bench of the world court – the International Court of Justice – for its first 50 years until 1995. Today at the highpoint, only four of the Court’s 14 judges are women – including Vice President Julia Sebutinde of Uganda.

At the end of 2024, the UN Women’s Rights Committee recommended that states take measures to ensure women’s equal representation in the judiciary, but also in customary or informal justice systems. This latter recommendation is noteworthy. In Kenya, the Meru Council of Elders – Njuri Ncheke – is part of the traditional justice system that has operated for hundreds of years. Until only recently, exclusively male elders were permitted to join the court as adjudicators. 

All Justice Systems are a Work in Progress

The global justice gap today represents a violation of the rights of some two-thirds of the population. This gap needs to be filled to allow people to resolve conflicts in their daily lives and be able to move on. Formal justice systems provided by states do not have the capacity to meet all of these needs. Nor should this be required of state courts. As UNODC notes formal justice systems may malfunction due to challenges and weaknesses including high levels of impunity and delays in the administration of justice.  While some serious matters including crime or claims against the government should go to formal courts, people can choose to take other matters before alternative systems. 

We do not intend to deflect the legitimate critique of alternative justice systems with some kind of ‘whataboutism’ regarding formal courts. Our point is rather that justice is not one size fits all and that there are pros and cons to all systems. The modern state did not create ‘justice’ nor does it have a monopoly on it. For the benefit of all justice-seekers, let’s work to embrace and improve all formal and alternative justice systems.