Theoretically, the right to access to justice is premised on the liberal ideals of “equality before the law” and the “rule of law” as well as the capacity of the multiple sections of society to utilise these principles. It traces its roots to the era of the welfare state and growing rights consciousness and was synonymous with the advocacy for increased State commitment to provide social services. Access to justice represents the historic response to the criticisms of liberalism to the effect that civil and political liberties are pointless to people who for varied reasons may require support to benefit from and claim such rights.
Essentially, access to justice emphasizes the two-fold role of the legal system – to vindicate people’s rights and resolve legal issues – under the mechanisms superintended by the State. The underlying notion of the right is to enable people realise the practical value of human rights because “(a) mere formal right to access” does not resolve problems and “a declaration of a right does not guarantee its enforcement.” Access to justice is thus generally understood as the ability of citizens to call upon the State to solve their differences impartially and efficiently. It incorporates all the “elements needed to enable citizens to seek redress for their grievances and to demand that their rights are upheld.” Furthermore, access to justice comprises of established substantive and procedural standards, legal awareness, fair and effective adjudication, remedies and transparency.
In practice, access to justice services are diverse but can include; providing legal information; availing basic legal assistance like through paralegals; supporting the provision of alternative dispute resolution since it is cheap and cost effective; provision of legal advice and lastly legal representation. In its access to justice programmes, the United Nations Development Programme focuses on legal protection, legal awareness, legal aid, adjudication, law enforcement and justice oversight.
Overall, the right to access to justice has deep theoretical roots in the State’s mandate of providing social services to its citizens like it does for other services like education, health etc. It is meant to enable rights holders enjoy their rights since it has a dual identity — as an independent right but also a means for realising other rights.