In spite of various efforts and initiatives to enhance access to justice globally, the need for free or heavily subsidised legal services persists. Indeed, the right to access to justice has been described as one of the areas in which “rhetoric outruns reality” because practically, all countries face several challenges in its realisation. By 2017, it was projected that worldwide, four billion people “live outside the protection of the law” mainly because of their social and economic situation. Recent studies estimate that by 2019, over five billion people, approximately two-thirds of the global population “lack meaningful access to justice”.
As such, it is argued that there is a huge discrepancy between the normative and theoretical aspirations of the right and the realities worldwide. The United Nations notes that internationally, advances in enhancing access to justice remain uneven. In the United States of America (USA), despite having the “world’s highest concentration of lawyers”, few people still access legal assistance and it is estimated that 70-90% of legal needs are not met while in Canada, studies show that up to 65% of citizens are not sure of their rights and are scared to use the justice system. A 2016 report showed that Canadians suffer a cocktail of “financial, psychological, informational and physical barriers” in their quest for justice. In the United Kingdom (UK), a report found that “(f)ewer people can access financial support for a legal case”. The provision of access to justice services is a “significant challenge” to developing countries like those in Africa where “various social groups are experiencing restrictions to such access” and many people still face “substantial blockages that are both patently unfair and a breeding ground for discontent.”
Conceptually, based on the ideas of equality on one hand and rule of law on the other, there are “scholarly tensions” between those “who advocate minimal rights to ensure some level of access and those who claim equality should be absolute”. The first school of thought suggests that the State should provide basic access, depending on the case, to legal and institutional justice mechanisms to those in need, while the second advocates for total equality in using the justice infrastructure regardless of the socio-economic situations. This could explain why different countries provide varied access to justice services. For example, in the UK, legal aid is restricted to cases where there is risk of serious harm, homelessness, discrimination, and cases under the Human Rights Act. In USA, legal aid in civil matters focuses on employment, housing, family law and consumer issues. In Uganda, one is entitled to legal representation at the expense of the State in capital offences only. This lack of clarity in essence affects the magnitude of access to justice interventions and perpetrates the uneven availability of such justice services globally.
From a political lens, the provision of access to justice services like pro bono and legal aid while lawful, raises legitimacy issues on the ability of the State to deliver on its human rights obligations. Some scholars argue that this paradox is akin to relegating the delivery of core State services like national security and public transport to “volunteerism” as done by pro bono lawyers. In a way, this view subjects access to justice services to the “realm of political competition for public funding” so that it gains the same status and prioritisation as other sectors like health and education. However, because of the ‘intangible’ nature of justice services, advocates for public funding for access to justice have an enormous task of demonstrating the practical value of justice in the face of stiff competition from more emotive sectors like national security, education, infrastructure and health.
Besides the notional and political barriers highlighted above, it has been noted that several “economic, structural, and institutional factors” obstruct access to justice. According to UN Development Programme (UNDP), these include; excessive bureaucracy in the justice system, prohibitive costs of accessing legal services, high ignorance of human rights by the citizens as well as abuse of power by duty bearers. Other factors highlighted by UNDP are; availability of limited remedies to address legal problems, gender biases that disproportionately affect women, and the general absence of satisfactory legal aid systems. The Bach Commission on Access to Justice noted similar concerns in the UK and highlighted the “inadequate and disjointed” delivery of public legal education as a one of the factors hindering access to justice. In Asia, it has been observed that because of the development agenda pursued by most countries, the governments are reluctant to address some of the gross violations of economic, social and cultural rights. Consequently, institutions like courts have “alienated the poor with their inefficient and corrupt systems” and the vulnerable people struggle to obtain justice in such environments.
Several scholars have weighed into this debate. Cappelletti argues that “the most significant problem” to accessing justice is the huge legal information gap which stops people from seeking legal advice even if lawyers were readily available. Garth and Cappelletti submit that this “fundamental barrier” mainly affects the underprivileged in society even when most fractions of the population is affected. They identify other barriers to equal access to justice to include the high costs of litigation in which among others, the adversarial “winner-takes-it-all” system in some jurisdictions which includes payment of costs to the losing party becomes “a powerful barrier” to accessing justice. Similarly, OECD identifies these barriers to entail the “complexity and cost of legal processes, time, and geographical and physical constraints” including shortages in service delivery, the digital divide, et cetera. Equally, a study noted that “(h)igh or disproportionate legal costs, or the absence of legal aid mechanisms, may discourage citizens from bringing a claim before a court, thus impeding effective access to justice”. The situation is worse in developing countries in continents like Africa. In Uganda for example, the right is constrained by the fact most justice institutions, law firms and legal aid service providers are concentrated in urban areas, yet the majority of the population lives in rural areas.
Overall, the barriers to access to justice can summarised as financial access – the ability to meet the attendant costs of seeking legal services; physical access – direct contact to relevant justice institutions, lawyers and critical legal information. Lastly, technical and psychological access which relate to the ability to understand the complex legal processes and terminology used in the justice system.