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States responsibilities in enhancing Access to Justice

States responsibilities in enhancing Access to Justice

The State bears the primary duty for maintaining law and order and ensuring that everyone within its jurisdiction has full and equal access to justice. This includes ensuring that all state institutions and agents, such as courts, police, prosecutors, and prison officials, respect and protect human rights. States are expected to do the following in this regard:

  • Take all necessary legislative, administrative, and other measures to avoid rights abuses.
  • Effectively, quickly, fully, and impartially investigate infractions.
  • Prosecute or take other legal action against people who are suspected of being involved.
  • Ensure full, equal, effective, and safe access to justice for the victims.
  • Ascertain that the state’s run institutions provide and enforce remedies.

Hindrances to Access to Justice

The World Bank asserts that three central categories can limit an individual’s ability to access justice, which is:

(i) Inadequate legal protection, including gaps in the legal framework, and institutional barriers;

(ii) The lack of capacity to provide justice remedies, barriers within court systems and informal justice systems, and lack of enforcement; and

(iii) The lack of capacity to demand justice remedies, which includes external obstacles, internal obstacles, and lack of legal awareness.

Displaced people are frequently confronted with new regulations that differ from those in their nations and jurisdictions. Ignorance about the law and their rights becomes a barrier to them being exercised. People who escape their homeland and seek asylum in other nations become extremely exposed to poverty and discrimination. As a result, they are unable to exercise their human rights, the most important of which is the ability to obtain justice.

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Harding et al noted that the lack of knowledge and capacity to demand justice is a barrier for several reasons. Firstly, it makes it difficult for citizens to regulate their behavior according to the law, and to know the expected judicial responses. Secondly, when citizens are unaware of legal procedures, they might choose inappropriate mechanisms for pursuing justice. Further, a lack of legal knowledge means that individuals are more vulnerable to abuse or exploitation in the judicial system, and are less likely to receive a fair trial.[1]

Long distances between courts of law and displaced communities make access to justice difficult for displaced people. When it comes to addressing the needs of displaced persons seeking access to justice in a trial court, a concerted effort must be made to empower them legally.

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Language barriers, especially if they do not speak English, inadequate time and facilities to prepare their defense, not being informed promptly in the language he or she understands and in detail of the nature of the offense they committed, inability to secure legal representation, and inability to perfect a bail application due to a lack of sureties are all factors that contribute to their disempowerment.

Another impediment to justice is the high cost of legal representation. One of the things that make displaced people susceptible is poverty. As they flee persecution, natural disasters, and instability at home, they don’t have time to bring their belongings with them in their frantic attempt to stay alive. As a result, they lack the financial means to hire legal counsel to fight for their rights.

It is common for people to overlook a violation of their rights merely because they cannot afford to seek redress. There is no such thing as a free lunch in Nigeria, and even access to justice is not without cost. It is available to those who can afford it; yet, for those who cannot, it is frequently delayed, denied, or worse, buried.

The problem of poverty is the impediment that stares displaced people in the face and robs them of their legal right to receive justice. As a result, displaced people who are denied access to justice are sometimes obliged to take matters into their own hands, either through unlawful or violent means or by accepting unjust settlements.

According to Justice C.A. Oputa (Blessed Memory), he said: poverty is another modern form of slavery.[2] In the words of Eminent Jurist Aguda, he said:

What fair hearing can a poor person hope to hear when he cannot even boast of a square meal a day? If he is cheated of his right, he would certainly prefer to leave the matter in the hands of God than risk death through starvation as a result of investing all he and his family can boast of as total of their worldly possession in trying to assess an illusory right to a fair hearing of his grievance by the courts. To think that a very poor person can have a meaningful hearing in court in the pursuit of his right, real or imaginary, is to live in a fool’s paradise.

In its preamble, the Constitution of the Federal Republic of Nigeria, 1999 (as amended), states that the Constitution is for “promoting good government and the welfare of all citizens in our country on the principles of Freedom, Equality, and Justice.” How can we promote the welfare of all people in Nigeria, including displaced people, based on the ideals of ‘Freedom, Equality, and Justice,’ when displaced people are unable to access the courts due to the high expense of litigation and delays in case resolution caused by our laws?

Furthermore, the non-appearance of displaced persons who are either parties or witnesses frequently leads to numerous court adjournments and delays in the quick process’ execution. The movement of displaced persons in camps is restricted, and to leave the camp, they must obtain a pass, which takes time to process. This has an impact on their ability to appear in court on time.

Many displaced people, especially those in host communities, are itinerant and may not have a permanent location. This makes it difficult to serve court documents on them, obstructing access to justice. Failure to enforce judgements or delays in doing so (i.e. delays in carrying out a final judgment to guarantee that obligations are imposed or performed in practice) are also barriers to justice. Failure to enforce a final judgment is an infringement of the right to an effective remedy, according to the European Court of Human Rights.[3]

 

[1] Andrew Harding, and others, ‘Access to Justice and the Rule of Law’ [2008] Forced Migration Review

[2] C A Oputa, Idigbe Memorial Lectures Human Rights in the Political Legal Culture of Nigeria (Nigerian Law publications 1989) 94

[3] Nathy Rass-Masson and Virginie Rouas ‘Effective Access to Justice’ (European Union: 2017) <https://www.europarl.europa.eu/RegData/etudes/STUD/2017/596818/IPOL_STU(2017)596818_EN.pdf> accessed 6 October 2021; M Cappelletti, & B Garth,   ‘Access to Justice: The Newest Wave in the Worldwide Movement to make Rights effective’ (1978) 27 Buffalo Review 181, 182

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