Legal empowerment as a tool for engendering access to justice in South Africa
| Author | Gladys Mirugi-Mukundi,Oluwafunmilola Adeniyi,Ebenezer Durojaye |
| DOI | 10.1177/1358229120969602 |
| Published date | 01 December 2020 |
| Date | 01 December 2020 |
Article
Legal empowerment
as a tool for engendering
access to justice
in South Africa
Ebenezer Durojaye, Gladys Mirugi-Mukundi and
Oluwafunmilola Adeniyi
Abstract
This article examines the concept of access to justice and the challenges vulnerable and
marginalised groups encounter in accessing justice. The article further discusses the
recognition of access to justice as human rights imperative under international and
regional human rights instrument. It then discusses barriers to access to justice for
women. It argues that while access to justice remains a challenge for many vulnerable and
marginalised groups, women particularly encounter serious barriers to access to justice
in society. Furthermore, it discusses the notion of legal empowerment and the
significance of this for the realisation of access to justice for vulnerable groups, especially
women in disadvantaged communities. This is followed by the discussion on the expe-
rience of the Dullah Omar Institute in providing legal empowerment training for women
in informal settlements in Cape Town and some of the, important lessons from this
process. It concludes by making useful recommendations in ensuring access to justice for
vulnerable women in informal settlements.
Keywords
Access to justice, legal empowerment, women, South Africa, informal settlements
University of the Western Cape, Bellville, South Africa
Corresponding author:
Ebenezer Durojaye, University of the Western Cape, Robert Sobukwe Street, Bellville 7535, South
Africa.
Email: ebenezerdurojaye19@gmail.com
International Journalof
Discrimination and theLaw
2020, Vol. 20(4) 224–244
ªThe Author(s) 2020
Article reuse guidelines:
sagepub.com/journals-permissions
DOI: 10.1177/1358229120969602
journals.sagepub.com/home/jdi
Introduction
Daily, people around the world experience different forms of justice problems ranging
from housing disputes to insurance claims and accessing education and healthcare.
Current estimates are that 1.4 billion people are denied access to justice in civil and
administrative justice needs worldwide (World Justice Forum, 2019).
It has been proven that there is a positive relationship between the ability of people to
access justice and socio-economic development of societies (Durojaye et al., 2018). In
this vein, the Organisation for Economic Cooperation and Development (OECD) (2016)
noted that the ‘inability to resolve legal problems diminishes access to economic oppor-
tunity, reinforces the poverty trap, and undermines human potential and inclusive
growth’. This reality is amplified for many marginalised groups including – women,
children, persons with disabilities, indigent persons and the youth (Pascoe, 2016). The
contradiction is that although the denial of access to justice is most amplified in circum-
stances of marginalisation, marginalised persons are the ones who experience the great-
est burden of barriers of access to justice. In this vein, Marou Amadou, the then Minister
of Justice of Niger noted
Just as one cannot let people suffer from hunger or thirst, one cannot let them suffer from
injustice or arbitrary power just because legal aid might prove costly. People’s aspirations
for democracy and development require a ‘true’ rule of law, which is impossible if justice is
not accessible toall [ ...] [A]s another saying puts it so well, ‘in these conditions, it is often
better to be rich and guilty than poor and innocent’, and lose all your rights [ ...] You are
poor not only because you don’t have money, but also because you cannot read the civil
procedure code, or the penal code, or you don’t know what action to take in the face of
injustice. You are poor when, instead of seeing the judge as someone who is going to protect
you, you fear him and dread his judgment. Yes, when you are poor, you are also afraid.
Poverty has many faces, and legal aid can help address many of them. (UNDP, 2016, p. 5)
In many climes and mostly in developing countries, women seeking justice face
challenges navigating through complex and most times patriarchal and hostile legal
systems and institutions. Beyond the barriers to accessing justice that everyday people
face, women have (an) added layer(s) of barriers, specific to their circumstances as
women, which they confront in addressing peculiar legal needs. Thus, to address the
barriers of access to justice for women, a nuanced and multifaceted approach is required.
This should include – creating an enabling environment for women to access justice;
creating effective, accountable and gender responsive institutions to foster and promote
women’s access to justice, and empowering women with the knowledge and tools to
know and assert their rights (UN Women, 2018).
The commitments to addressing barriers to access to justice for all is re-echoed in
many regional and international instruments, but most substantially given practical focus
through its placement within the context of the United Nations Sustainable Development
Goals (SDG 2030). Specifically, goal 16.3 commits to ‘promote the rule of law at the
national and international levels, and ensure equal access to justice for all’.
1
One of the
proposed indicators for goal 16.3 seems to be gender sensitive, especially as regards
violence against women. This indicator measures the attainment of goal 16.3 via ‘the
Durojaye et al.225
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