A large amount of research focusses on why people in Africa do not use the local state justice system, such as perceptions of corruption, but less is written about why people do. Looking at magistrates’ courts in South Africa and Uganda, SJ Cooper Knock and Anna Macdonald examine people’s varying motivations and experiences, and what this means for access to justice.
This post is part of a series exploring ‘public authority’ based on research at LSE’s Centre for Public Authority and International Development at the Firoz Lalji Centre for Africa.
Magistrates’ Courts are a vital part of the state justice system in both South Africa and Uganda and yet, in the vast academic literature that exists on justice in both countries, relatively little attention has been paid to these courts.
In both countries, there is a rich literature about higher courts in the justice system. A great deal has also been written about why people do not engage with state courts. Studies have emphasised the problems raised by inadequate infrastructure, staff shortages, case backlogs, perceptions of corruption and ideas of justice and accountability that diverge from those of the state. These insights are valuable, but they tell us little about why people do engage with lower state courts, and with what consequences.
In practice, large numbers of citizens are engaging with Magistrates’ Courts every year. Our research was designed to gain a better understanding of why people take their disputes to Magistrates’ Courts and what experiences they have while they are there.
Understanding the relationship between citizens and Magistrates’ Courts
In academic writing about Access to Justice, the idea of ‘procedural justice’ has been highly influential. This approach argues that if court procedures are seen as rule-bound, respectful and neutral, then courts will be seen as legitimate. To the extent that courts are seen this way, they will be used by citizens and their judgements will be treated as binding. We do not discount the importance of transparent, respectful, predictable procedure, but if one is looking to understand how people engage with Magistrates’ Courts and why they do so, the procedural justice model falls short.
While the procedural justice model gives us a very neat model of citizen-court interactions, the reality is far more complex: disputes are a messy business. Consequently, lower-level courts often deal with disputes that are more diffuse than the legal matter in question. The types of ‘justice’ that people seek may also go beyond the parameters of what the court can offer. If the theories that we use to understand citizen-court interactions are not capable of dealing with this complex picture, the solutions that they suggest will be appealing but ineffective.
Our research suggests that people’s engagement with the courts can be explained by how they reconcile three factors: how people think the courts should act, how they need them to act and how they expect them to act in any given instance. The weight that each factor carries varies, but we need to take each into account if we want to sharpen our understanding of citizen-court engagement and develop policy to improve court outcomes.
How people think that the courts should act: People’s ideas about how the state should operate can play an important role in shaping people’s motivations for engaging with the legal system.
State imaginaries may vary greatly among citizens, but this does not change the fact that ideals can matter. Despite their shortcomings, state courts may continue to be symbolically important and project a form of authority that people value. In some cases, people’s belief that the state should arbitrate on their dispute means that they will go to great lengths to ensure that their case reaches the courts.
How people need the courts to act: In their pursuit of dispute resolution and justice, people may use the police and courts tactically and pragmatically to reach the end that they need. For example, people might open a case in order to gain leverage in an ongoing criminal or civil case, or another dispute outside the court. Alternatively, they might take someone to court because the process of attending court is a form of punishment in itself, even if the case in question is eventually dropped. When courts measure their success in criminal cases, they often do so in the number of cases that reach a conviction, but we need to remember that this is not always the end that court users are seeking.
How people expect the courts to act: The experiences that groups and individuals amass over time can play a critical role in shaping their predictions for the future. These expectations may shape whether people approach the courts, how they behave when they engage with the courts, and how they interpret events that occur in the courtroom. Those predictions remain important even if the basis for those predictions are unproven. For example, the belief that courts are corrupt can shape people’s understanding of their case even if no corruption is actually practiced.
What does this mean for how we think about Access to Justice?
As we argue in our article, procedural justice theories present a neat model of citizen-court interactions but cannot capture the full range of reasons that citizens engage with and experience the lower state courts. If we want to understand how and why people use the courts, we need to pay attention to how they reconcile their ideals, needs and expectations when it comes to the state justice system. Indeed, often people turn to the courts despite a full awareness of the major procedural flaws at play, and others turn to the courts because those flaws may give them leverage in a broader dispute.
Pursuing a nuanced analysis does not mean that we have to give up on policy prescriptions. Far from it. In South Africa, for example, there are established outreach programmes from Magistrates’ Courts into local communities explaining the basics of how a court works. However, the degree to which people do not understand the basics is arguably over-estimated by court officials because people’s objections to court processes (such as bail) or people’s repurposing of court processes (such as the use of no-shows to trigger delays and punish those on trial) are sometimes confused for a lack of understanding. This can mean that outreach events prove ineffective, telling communities what they already know and failing to substantially shift their engagement with the courts.
Rather than focusing on community outreach, we argue that courts should push more resources into funding officials within the court who can help people navigate the institution, both literally and metaphorically. We have to be careful about blanket prescriptions, however. While such extra funding may have a positive effect in South Africa, in Uganda, where the illicit transaction of money in the lower state justice system is so well documented and widespread, such an initiative could further endow corrupt syndicates of court staff and legal practitioners that have been observed in some places.
Better understanding people’s motives and experiences enables us to more accurately identify where guidance is helpful and what form it might usefully take. All too often, Access to Justice interventions at a national and international level focus on ‘education’ as a means of reconnecting citizens with the state. There is, undoubtedly, a place for guidance, but it is often far narrower than policymakers suggest. A more thorough grasp of people’s engagement with courts can help to identify where and how to design such useful interventions. In a period of sustained national and international support for access to justice, our findings should stimulate debate and further research on the actually existing dynamics of lower state courts and prospects for reform.
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