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What kind of information should be gathered?

One of the first steps in any justice sector reform initiative should be a situational appraisal, sometimes called a needs assessment. General information on needs assessments/situational appraisals is available in the Programming Essentials section. A situational appraisal is focused on understanding the causes and consequences of the problem. It also documents the relationship of the problem to other issues, reveals important stakeholders, and identifies the specific human rights concerns involved. There are multiple ways to conduct a situational appraisal, depending on the context, the resources and time available, and the scope of the problem under consideration. Each method can reveal different types of information and will be more or less useful with different audiences. Selecting a combination of tools that will provide overlapping information is important to ensure that your appraisal is as accurate as possible. When multiple methods of information gathering all reveal the same problem, same causes, and same effects, programme implementers and advocates are in a good position to better define their strategies and to make the case to stakeholders, including government partners and funders, as to the efficacy and importance of this work.  

The purpose of an appraisal is to gather as much useful information as possible to assist with planning an effective programme. Appraisals should gather information about:

  • Legal framework, including national, regional, and international laws and standards;
  • Access to justice concerns, including physical access, financial access and likelihood of access (i.e. social norms and gender dynamics);
  • The justice mechanism’s handling of violence against women cases (see questions below related to common indicators);
  • Other actors operating in the justice sector, including the government, community groups, non-governmental and intergovernmental organizations, as well as donors; specifically examining opportunities for collaboration and possible duplication of effort (see Partnerships and Networks);
  • Political climate related to women’s rights and justice, including allies and potential spoilers (see Stakeholder and SWOT analysis); and
  • Organizational capacities (see Capacity Inventory tool below).

Appraisals should specifically examine how violence against women is handled in both the formal and informal justice sector. Questions will need to be adapted based on the type of violence being examined (i.e. domestic violence, sexual assault, trafficking, FGM/C):

  • How many cases of violence against women are seen in the system? How does the number of cases of VAW compare to the total cases in the system?
  • What percentage of crimes are reported? What percentage of reported crimes are investigated and prosecuted? What percentage of cases end in conviction?
  • Are decision-makers and practitioners aware of the national laws, local customs, and/or regulations that apply to cases of violence against women?  Do they apply/comply with these laws and/or customs in cases that come before them? Why or why not?
  • Can practitioners identify international human rights protections related to violence against women that apply in their country? Do they refer to those standards in cases that come before them?
  • Can practitioners describe the procedures they use, or the policies they follow when handling a case of violence against women?
  • How many system practitioners have been trained specifically on handling cases of violence against women? What has been the content of the training? How have actors in the formal and informal system reacted to these trainings?
  • Does a referral network exist for cases of violence against women that are brought to the justice sector?
  • What are women’s perceptions of the formal and informal systems’ handling of cases of violence against women, such as domestic violence?
  • How do women seek help when they attempt to use the justice system?

Other general types of information to be gathered during an appraisal might include (UNDP, 2004):

  • How independent is the judiciary?  What is the legal and political balance of power between the judiciary and the executive?  What is the size of the budget of the Justice Ministry? Is there an independent judicial organ to determine expenditure, appointments, promotions, demotions, and removal of judges? How stable are the positions of the judiciary and the clerical staff in the judicial system? Is the staff dependent on the Ministry of Justice, or other ministries?
  • Are there accountability mechanisms within the judiciary and other parts of the justice system (e.g. lawyers, prosecution, police)? How effective are these?
  • What is the situation of judicial training institutions and of legal education in general?
  • What is the level of awareness of the justice system and legal remedies by the public, particularly by the poor and other vulnerable groups?  Is there an existing public legal education and awareness programme?
  • What factors prevent poor and other disadvantaged people from accessing the judicial system? Is the proposed programme addressing any of these factors?
  • What risks and costs are incurred in accessing justice? 
  • Is there a purely formal justice system or does an informal justice system also exist? If so, what is the scope and jurisdiction of informal means of case resolution? What is the relationship between informal and formal justice?
  • Is there a legal aid system in place? If so, what kinds of law and justice issues does it cover?
  • What is the degree of financial support/resources devoted to the system? Is there a good balance of support to legal aid coming from both the state and civil society? Are legal aid services available in different parts of the country, particularly in the rural areas? 
  • Are there national human rights institutions?  Are there remedies available for citizens affected by corruption or non-compliance with government policies?  What mechanisms are available to citizens to make the police and prison officials accountable? Are there national, or sub-national bodies addressing discrimination? To what extent does anti-discrimination legislation, if any, reflect international standards?
  • Is there a sector of civil society, directly involved in access to justice, legal aid, justice monitoring, and judicial reform?
  • How are resources allocated within the justice sector?  Is there a fair balance in the human and financial resources allocated to each of the levels and branches of the court system and to the different components (e.g. judiciary, public defense, prosecution, police, prisons) of the justice system?
  • If corruption is endemic in the country, has the judiciary demonstrated a willingness to combat corruption within its own ranks, to promote new anti-corruption legislation, and/or to use existing legislation to eliminate corrupt practices?
  • Do the political actors at the highest level, Justice Ministry senior officials, and Senior Justices actually want reform?  Do the Home and Justice Departments cooperate with the criminal justice system?  If not, have any steps been taken toward reform?
  • What is the perception among civil society and the media of the executive’s willingness to reform?  What is the general perception among the international community of the nation’s democratic reforms? 

 

Informal Sector Appraisal Questions

The informal sector has some unique characteristics so the following questions should be considered as part of an appraisal or assessment of the informal sector.

1. Who controls access to the informal justice process?

  • State
  • Community
  • Survivor
  • Religious authority
  • Traditional authority (e.g. village elder or chief)
  • Other?

Explain how each of the above relates to the informal justice process:

________________________________________________________

2. Who participates in the informal justice process? What roles do they play?

  • Women
  • Men
  • Survivor
  • Offender
  • Public
  • State officials
  • Community leaders

Explain how each of the above relates to the informal justice process:

________________________________________________________

 

3. Who controls whether the informal justice process moves forward, the survivor, the offender, the state, or someone else?

4. Who is allowed access to this mechanism?

  • Specific ethnicity/tribe/religion only?
  • Adults
  • Juveniles
  • Men
  • Women

5. Who monitors/enforces the outcomes?

6. Who can monitor the process?

7. Who funds the process?

 8. Under what authority does the process operate?

  • Secular law (Constitutional, Civil, Criminal, etc.)
  • Religious law
  • State-sanction other than legislation
  • Tradition
  • Community agreement

Explain how each of the above relates to the informal justice process:

________________________________________________________

9. How do changes take place within this justice mechanism?  E.g. consensus, community-driven, solely determined by traditional leadership?

 

Practitioners should also consider these issues, especially if comparing the formal and informal sector (Penal Reform International, 2000):

  • What are the major concerns of women, girls, and the community in relation to safety and security?
  • What are the possible causes of these concerns?
  • How do such concerns affect the whole or sections of the community?
  • In what ways are cases normally dealt with?
  • To what degree do the local police become involved?
  • How satisfied are people with the response of the police?
  • To what extent have formal courts been used? By whom? Involving what kind of cases?
  • How satisfied are people with the way in which cases are dealt with under the formal system, for example, in terms of procedure and penalties, or the fact that cases are decided by a judge from outside the community?
  • What constraints exist in using the formal courts? How could these be overcome?
  • To what extent would use of formal courts increase if they were more accessible?
  • Are people satisfied with the informal justice system? What are the reasons for their satisfaction or lack of it?
  • Which aspects could be improved? How?
  • How many cases are decided by the informal justice forum?
  • What kinds of cases are heard?
  • What is the procedure?
  • How are the “arbitrators” or decision-makers mandated by the community?
  • Is there any opportunity to change the arbitrators?
  • What is the degree of support for the current arbitrators?
  • What types of solutions or penalties are used? Are they appropriate?
  • Are any records kept? Why are they kept, or not?
  • Can a party refuse to attend, walk out, or refuse to abide by an agreement? Has this ever occurred? What was the outcome?
  • In which ways and to what extent does the general public participate?
  • Is the participation of women, children, and other groups sufficient and fair?
  • How are women, children, and other minority status groups dealt with under the informal system? How should they be treated?
  • What is the attitude towards the rights of women, children, and other groups?
  • What aspects of the justice system have changed over time? What are the possible reasons for these changes?

 

Gathering Data on Indigenous Peoples – Special Considerations

When gathering information about indigenous justice mechanisms and indigenous women’s access to justice, the following questions developed by the International Indigenous Women’s Forum (FIMI), should be considered:

  • To what extent are collective rights (rights that inhere in the group, instead of with the individual) respected, protected, and fulfilled?
  • Has the government committed itself to implementing the Declaration on the Rights of Indigenous Peoples?
  • Do Indigenous Peoples govern their own territories, control their own natural resources, and enjoy food sovereignty?
  • Do government policies respect the dignity of Indigenous women and their Peoples and avoid all forms of physical and structural violence against the bodies, homes, communities, and Peoples of Indigenous women?
  • Do Indigenous women and their families have geographic, economic, and cultural access to government services such as: free, high-quality intercultural education in their own language; women healthcare providers that speak their language; water, sanitation, housing, and transportation; and processes of justice informed by intercultural and gender perspectives?
  • Are resources devoted to the development of analytical paradigms, research methodologies, and training programmes that can enable relevant and useful disaggregated data to be collected from Indigenous women?
  • Are economic and development policies implemented in compliance with the principle of free, prior, and informed consent?
  • Is the military deployed within Indigenous territories?
  • To what extent do women enjoy a positive Indigenous identity versus feelings of shame, inferiority, and internalized racism and sexism?
  • Do Indigenous women locate themselves within a historical trajectory (i.e., in relation to past and future generations of their Peoples)?
  • Do Indigenous women perceive their lives in relation to the ecosystems in which they live?

[Editor’s note: The primary consideration for all women should be whether their human rights, including their fundamental right to be free from violence, are upheld.]

 

Source: International Indigenous Women’s Forum (FIMI). 2006. Indigenous Women Stand Against Violence: A Companion Report to the United Nations Secretary-General’s Study on Violence Against Women.

Tools for Assessment and System Appraisal:

Checklists for Assessing the Formal Justice System Response to VAW (Battered Women’s Justice Project, 1998). Available in English.

Gender in the Criminal Justice System Assessment Toolkit (UN Office on Drugs and Crime, 2010). Available in English.

Criminal Justice System Assessment Toolkits (UN Office on Drugs and Crime, 2011): Although not specifically focused on issues of violence against women, these toolkits provide helpful guidance on general assessment strategies for examining whether the public can access criminal justice. Toolkits available in English, French, Russian and Spanish.

Toolkit to Combat Trafficking in Persons (UN Office on Drugs and Crime, 2008). See the criminal justice assessment tool #2.5 on page 47. Available in English.  See the website to download in sections.