Does legal aid improve access to justice in ‘fragile’ settings? Evidence from Burundi
| DOI | http://doi.org/10.1177/00223433211055633 |
| Published date | 01 November 2022 |
| Date | 01 November 2022 |
| Subject Matter | Regular Articles |
Does legal aid improve access to justice
in ‘fragile’ settings? Evidence from Burundi
Imane Chaara
Oxford Department of International Development, University of Oxford
Jean-Benoı
ˆt Falisse
Centre of African Studies, University of Edinburgh
Julien Moriceau
Law Faculty, Universite
´Catholique de Louvain
Abstract
Access to justice is often described as key for building and consolidating peace and enhancing socio-economic
development in fragile and post-conflict states. Since the 2000s, legal empowerment has been one of the most
popular approaches to improve such access, and a growing literature has presented mixed evidence on the quality of
its outcomes. We evaluate and discuss the impact of a locally provisioned legal aid program on justice-seekers’ use of
dispute resolution fora, legal agency, and trust in judicial institutions. The program was implemented between 2011
and 2014 in 26 municipalities of rural Burundi. We consider its effects on 486 beneficiaries using various propensity
score-matching methods and data on non-beneficiaries from two distinct control groups (n ¼3,267). Forty-eight
interviews with key informants help discuss judicial practices. We find that the program increased the use of courts
but not trust in the judiciary. It had no significant impact on the use of alternative dispute resolution mechanisms.
Qualitative and quantitative evidence suggests that justice-seekers’ perception of the treatment they received in
courts, also known as procedural justice, shaped their perception of accessing justice. Qualitative evidence also points
to a possible ‘watchdog effect’: in some cases, the presence of a legal adviser may have pushed judges to better comply
with procedures. While legal aid programs can improve access to courts, it does not necessarily mean an erosion of
judicial ‘forum shopping’ or that trust in state institutions is reinforced and rights fully realized.
Keywords
Burundi, fragile states, justice, land, legal aid, legal pluralism, rule of law
Introduction
Effective access to justice through dispute resolution
mechanisms is widely regarded as fundamental to enable
social cohesion, sustainable socio-economic develop-
ment, and peace (UNDP, 2000). Instability thrives on
unresolved criminal, but also civil, disputes (Deininger
& Castagnini, 2006). In the African Great Lakes
region, for instance, land disputes are commonplace and
amplify broader cleavages associated with violence and
civil war (van Leeuwen & van der Haar, 2016). In the
last two decades, states’ and international aid’s main
interventions to improve access to justice in so-called
‘fragile’ settings have been the support or set-up of tran-
sitional and criminal justice processes and (para)legal aid
mechanisms (Gisselquist, 2019). Research has looked at
the national-level effects of legal aid (Carothers, 2003;
Prettitore, 2015), but less is known of its micro-level
dynamics (Prettitore, 2012) – especially in rural post-
conflict contexts that are also often marked by legal
Corresponding author:
jb.falisse@ed.ac.uk
Journal of Peace Research
2022, Vol. 59(6) 810–827
ªThe Author(s) 2022
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DOI: 10.1177/00223433211055633
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pluralism (Harper, 2011; Goodwin & Maru, 2017).
This article seeks to advance the debates on legal aid and
its capacity to improve access to justice through the eva-
luation of the Intercommunal Legal Aid Service (Service
d’Aide Juridique Intercommunal; henceforth SAJI) imple-
mented in rural Burundi between 2012 and 2015. The
SAJI was typical of legal aid interventions: it consisted of
the deployment of trained professionals to provide free
legal services to populations without access to lawyers.
Burundi’s situation in the first half of the 2000s was
characteristic of post-conflict countries: state judiciary insti-
tutions had limited capacity, legitimacy, and, to some
extent, authority (Stensrud, 2009). A preliminary objective
of the article is, therefore, to better comprehend how judi-
cial and non-judicial dispute resolution mechanisms were
used and operated. It is only then that our focus can switch
to the main objective of the article: an evidence-based
discussion on the effectiveness of legal aid in helping citi-
zens accessing justice. We proceed in two steps, as we
consider two main dimensions of ‘access to justice’: the use
of justice institutions – and especially courts in the case of
legal aid – and the question of whether experience in courts
leads to achieving justice, meaning an effective resolution of
disputes and the realization of rights for justice-seekers. The
second dimension is notoriously tricky to explore with only
survey data – we use the justice-seekers’ assessment of the
fairness of the judicial process, their intention to use courts
in the future, and their trust in institutions as proxies.
Therefore, we also integrate substantial qualitative research,
which allows exploring frontline officials’ and judges’ beha-
viors. The article provides new insights into the role of legal
aid and revisits the meaning of ‘access to justice’ in a post-
conflict context.
Our study shows that legal aid beneficiaries are more
likely to use courts of justice, but not other dispute
resolution fora, especially when they have weaker social
networks. Their trust in courts and legal institution is no
different from non-beneficiaries – unless they have
received substantial information regarding their rights
and the legal proceedings while in court. Our qualitative
evidence documents the interplay between local justice
actors and suggests a possible watchdog effect in some
cases: legal aid professionals are de facto monitoring judi-
cial actors, thereby compelling them to fairer judgments
and legal compliance.
Section 1 discusses the literature on legal aid in fragile
contexts and access to justice in Burundi. Section 2 pre-
sents the dataset, which is then used to further charac-
terize the context. Section 3 describes the SAJI. Section 4
presents the impact evaluation framework. Section 5 and
Section 6, respectively, describe and discuss the main
empirical results.
Literature and rationale
Improving access to justice and legal aid interventions
Since the 1970s, abundant literature has underlined that
access to justice is not only the effective use of state
judicial institutions (e.g. UNDP, 2004; Bedner & Vel,
2010). Beyond the question of the ability of state insti-
tutions to deliver and enforce fair rulings (Rhodes,
2005), social scientists have stressed that justice is also
sought and delivered through non-judicial institutions
such as customary law, community arbitration, and
other alternative dispute resolution (ADR) mechanisms
that do not involve the judiciary (Glasser & Roberts,
1993; Le Roy, 2004; Ubink, 2011). In many contexts,
and especially when state institutions are perceived to be
‘fragile’, non-judicial solutions are frequently depicted as
more accessible, more predictable, fairer, and more con-
cerned with social reparations (Chauveau, Le Pape &
Olivier de Sardan, 2001; Harper, 2011). However, legal
pluralism, the coexiste nce of several normative orders
and dispute resolution fora, can also negatively affect the
chances of justice-seekers solving their case: justice
‘forum shopping’ (von Benda-Beckman, 1981) often
leads to contradictory rulings between fora, and the mul-
tiplicity of fora is hard to navigate for the poorer and
disenfranchised (Golub, 2003).
A key approach of the last decades for improving
access to justice in such contexts has been legal empow-
erment. It builds on the critique of the ‘rule of law
[improvement] orthodoxy’ (Golub, 2003: 1) as incom-
plete and insufficient to genuinely improve access to
justice for all (Samuels, 2006; Krever, 2011) and advo-
cates connecting the top-down/supply-side and the bot-
tom-up/demand-side – people’s use of the law and ADR
(Gisselquist, 2019). In practice, the approach has
focused on rights enhancement, which involves enacting
laws that protect and improve the status of the most
vulnerable in the judicial system and may push non-
judicial authorities to reform their judgments as well
(Aldashev et al., 2012; Cecchi & Melesse, 2016). Impor-
tantly, the legal empowerment movement has also trans-
lated into rights awareness and enablement initiatives
such as education campaigns, counselling, and (para)le-
gal aid, which are all expected to improve legal agency –
that is, people’s ability and willingness to take action to
solve their disputes and realize their rights (Goodwin &
Maru, 2017). Beside legal agency and legal awareness
(justice-seekers’ understanding of their legal rights and
Chaara et al. 811
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