INTERNAL DISPLACEMENT AND ACCESS TO JUSTICE : THE ROLE OF
MOBILE COURTS IN NIGERIA
Chudi Ojukwu[1]
Abstract
Following a series of internal conflicts and terrorism the number of internally displaced persons in Nigeria has been on the rise. Apart from the socio-economic impact of these events there are various legal issue that internal displacements create. Displacement of persons can be linked to loss of various citizenship and human rights. States have a responsibilities to protect their citizens and guarantee rule of law to everyone. The failure of the state to protect its citizens is often the root cause mass outflows of persons outside their place of habitation to another place within the borders of the country or crossing of any internationally recognized borders in an attempt to preserve their lives. The displacement of persons within and outside state boundaries is not a new phenomenon, even though recent history of the world has seen an increase and more severe challenges. While different factors often lead to displacement, this paper if focused on forced displacement arising from conflicts. Access to justice remains in big challenge even in communities that are not in conflict zones in Nigeria and naturally worsens for those displaced by conflict. While there are many challenges plaguing displaced persons, access to justice remains one of the gravest of them. When people are displaced the justice institution and personnel are also displaced. To ensure that victims of displacement don’t resort to self-help, impunity, and anarchy doesn’t take over, their rights protected and enforced, there is a need to ensure that these vulnerable ones pursue justice remedies through any recognized legal means. This paper identifies the factors that challenge access to justice for displaced persons , including recommendations which focus on the the role of the mobile court in sustaining access to justice to displaced persons. This paper appraises the role of Mobile Court and how it enhance access to justice and the possible challenges the mobile court system could face. .The article is primarily normative and seeks to review existing law and literature on the subject matter.
Introduction
The primary responsibility of the government is to protect the lives, properties of its citizens, respect and protect their human rights. The failure of the government to fulfil these responsibilities has its dire consequences which often lead to the displacement of a person. In the search for asylum, some citizen’s cross known international borders while some remain within the borders of their country. In the quest to preserve their lives, these vulnerable persons lose their properties, means of livelihood, relatives, and their human rights are often trampled upon due to their vulnerability. The state of being a displaced person goes against all that human rights standards and norms stand for, it in a way rips off one’s inherent dignity and worth as a human being, placing him or her in a much-disadvantaged position that is far from the notion of equality of all human beings.[2]
The prolonged displacement of persons due to conflicts often leads to human rights abuses. Countries prone to conflict, natural disaster, human rights infringement limits the enjoyment of the right to access to justice of these displaced persons who are often kept in the camp. There are several factors limiting access to justice ranging from social factors, financial factors, procedural factors, legal frameworks, institutional factors, etc. When displaced persons don’t have access to legal remedies for wrong done against them or there is failure to protect and enforce their rights there is a great chance that they would often resort to self-help.
Thus, the government needs to protect and respect the rights of these persons by setting up legal measures in which these displaced persons can seek remedies and punish offenders, thereby making their presence felt in the camp. The government through the judiciary can enhance access to justice for these displaced persons through the use of the mobile court to settle disputes, deliver on-spot judgment, restore peace in the place of settlement. The mobile court is the originality of justice providers aimed at bringing justice to the doorsteps of individuals notwithstanding the location.
This paper argues that mobile court is important at ensuring access to justice for the displaced person. To support the argument, the paper outlines the roles of mobile courts in justice provision for displaced persons. This paper undertakes to make recommendations that will address the issues of access to justice for displaced persons and how the challenges to the effectiveness of mobile court can be addressed. .
The thrust of this paper is to analyze the right to access to justice for displaced persons and the possible roles of mobile courts in enhancing access to justice. To underscore the thrust of the paper, the paper has been divided into 7 sections wit: introduction; displaced persons, the distinction between a refugee and internally displaced person was drawn; access to justice; states responsibilities; hindrances to access to justice; mobile court; roles of mobile court in enhance, but access to justice; challenges of mobile court and recommendations.
Displaced Persons
In the context of this paper, displaced persons are limited to refugees and Internally Displaced Persons (IDPs). The core feature of displacement of persons is the existence of involuntary movement and the movement occurs within the national borders for IDPs and crossing of borders for Refugees.
According to Article 1 A (2) of the 1951 Convention, the term “refugee” shall apply to any person whoas a person who as a result of a well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group, or political opinion, is outside the country of his nationality, and is unable to or, owing to such fear, is unwilling to avail himself of the protection of that country.[3]
The basic principle of the convention is that the rights of refugees in the country of a refugee must be at least equal to those of other resident foreigners in that country. Refugees are protected by the principle of non-refoulement, meaning that they cannot be forced to return to their home country if they have a reasonable fear that to do so would endanger their lives.[4]While the experience of refugees and IDPs are similar in many regards, there are also significant differences. Refugees have crossed international borders and are entitled to protection and assistance from the states into which they move and from the international community through the United Nations and its specialist agencies.
According to the Guiding Principles on Internal Displacement, Internally Displaced Persons (also known as IDPs) are persons or groups of persons who have been forced or obliged to flee or to leave their homes or places of habitual residence, in particular as a result of or to avoid the effects of armed conflict, situations of generalized violence, violations of human rights or natural or human-made disasters, and who have not crossed an internationally recognized border. [5]
It is important to understand that the IDP definition is a descriptive definitionrather than a legal definition. It simply describes the factual situation of a person being uprooted within his/her country of habitual residence. It does not confer a special legal status, in the same way that recognition as a refugee does. This is not necessary for IDPs because, unlike refugees who require being formally recognized as such by the country of asylum or UNHCR under its mandate, IDPs remain entitled to all the rights and guarantees as citizens and other habitual residents of a particular State.[6]
Internally displaced personsare part of the broader civilian populationthat needs protection and assistance because of conflict and human rights abuses. As a crucial element of sovereignty; it is the government of the States where internally displaced persons are found that have the primary responsibility for their assistance and protection. The international community’s role is complementary.[7]At the international level, no single agency or organization has been designated as the global lead on the protection and assistance of internally displaced persons. Rather, all are called upon to cooperate to help address these needs according to the collaborative approach. [8]The challenges of protecting the displaced persons are compounded by the deteriorating security situation as well as socio-economic fragility, with communities in the Sahel region facing chronic poverty, harsh climatic conditions, recurrent epidemics, poor infrastructure, and limited access to basic services.[9]
The prolonged displacement of persons in Nigeria is an assessment of its inability to effectuate its obligations to its citizens. In round 36 assessment reports carried out by the International Organisation for Migration (IOM), which covers the period from 08 to 24 February 2021 and reflects the trends from the 6 states in Nigeria’s north-east geopolitical zone, a total of 2,184,254 Internally Displaced Persons (IDPs) were identified in 447,628 households. This signifies a 1.6 percent increase (or 34,011 individuals) compared to round 35 of the assessment when 2,150,243 IDPs were recorded in December 2020.[10]
Like all human beings, internally displaced persons enjoy human rights that are articulated by International Human Rights instruments and Customary Law. In situations of armed conflict, moreover, they enjoy the same rights as other civilians to the various protections provided by International Humanitarian Law.[11]The guiding principle on internal displacement, created in 1998, restate and compile existing international human rights and humanitarian law germane to the internally displaced and also attempt to clarify grey areas and gaps in the various instruments concerning situations of particular interest to the internally displaced.[12]The Guiding Principles note that arbitrary displacement in the first instance is prohibited. Once persons have been displaced, they retain a broad range of economic, social, cultural, civil, and political rights.[13]
The ability to access justice is essential to combat impunity and prevent and respond to protection risks and concerns. Displaced persons often lack or have limited access to justice owing to several factors. Armed conflict, generalized violence, and collapse of institutions and infrastructure frequently result in a breakdown in the rule of law and access to justice. In some cases, an otherwise functioning justice system may remain out of reach for displaced individuals and communities owing to discrimination, marginalization, and poverty.[14]Having fled homes and lost their livelihoods as well as the protective presence of their families and communities, displaced persons might find themselves at increased risk of violence, exploitation, and abuse at the same time as their access to justice and other remedies are curtailed because of displacement.[15]Having suffered the original aggression that caused their displacement, displaced persons often face challenges resulting from their arrival in a new environment, in which social solidarity and institutional responses to their plight are limited. Faced with a lack of prompt and persistent assistance to meet their needs, hundreds of displaced persons only have the court as the last hope of the common man to stop their situation from worsening.[16]Thus, there is need for the government to ensure that the right to access to justice for these displaced persons through the court is not limited or a mirage.
Access to Justice
The concept of access to justice received particular attention in the 1970s and 1980s in the work of Mauro Cappelletti and Bryant Garth.[17]According to Cappelletti and Garth, the expression ‘access to justice’ serves to focus on two basic purposes of the legal system. Access to justice means, first of all, that the legal system must be equally accessible to all. Plaintiffs must be empowered to bring a claim before a court. Therefore, the procedural rules and practicalities shaping the legal system, such as standards on standing, litigation costs, availability of legal aid, or access to legal representation, may allow or restrict the ability of plaintiffs, especially the poor and disadvantaged, to bring a claim.[18]Access to justice cannot be achieved when plaintiffs face many obstacles that prevent them from filing a lawsuit. Access to justice also means that the legal system must lead to results that are individually and socially just.
Access to justice means access to a fair, respectful, and efficient legal process, either through judicial, administrative, or other public processes, resulting in a just and adequate outcome. It involves legal protection, legal awareness, legal aid, and counsel adjudication and enforcement.[19]The term ‘access to justice’ means finding effective solutions available from justice systems that are accessible and affordable to ordinary members of the community who are in dire need of help, and which dispense justice fairly, speedily, and without discrimination, fear, or favour.[20]
The concept of access to justice can be viewed from a narrow or wider sense, in the narrow sense; it refers to access to the law court. It is believed that this is a precondition for access to justice.[21]Access to justice is a concept that embraces the nature, mechanism, and even the quality of justice obtainable in society as well as the place of the individual within the judicial matrix.[22]It is also an important barometer for assessing not only the rule of law in any society but also the quality of governance in that society. Access to justice is the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievances in compliance with human rights standards.[23]
Access to justice is critical to law and order and the general security of our social and business environment. Once the right to access to justice fails, we are clearly in trouble and the loss of faith by the people in the capacity of the state to provide displaced person access to justice will tend to self-help and anarchy. There is no access to justice where members of a society (especially marginalized groups) fear the system, see it as alien and do not access it, where the justice system is financially inaccessible, where individuals have no lawyers, where they do not have information or knowledge regarding rights, or where there is a weak justice system.[24]
It is pertinent to state that no country will be able to ensure the implementation of goal 16.3 of the United Nations Sustainable Development Goals on 2030 on equal access to justice for all until it has focused on closing the global justice gap, increasing access to justice, providing legal aid to the most vulnerable groups. Access to justice for displaced persons must have a different approach to justice-a people-centered approach to justice that puts consideration of the individual at the heart of justice responses by providing access to information, programs, and policies.
Justice can be hard to come by in countries hit by the conflict. This may be because court buildings have been destroyed due to conflict, or because it is too unsafe for judges and personnel to stay permanently in a particular town or region.[25]To ensure that communities can settle disputes, and see criminals lawfully punished, UN peacekeeping missions support mobile courts, which travel to a place where no regular court exists.[26]
Without equal access to justice, displaced persons will be unable to claim their rights, or challenge crimes abused, or violations committed against them, trapping them in a vicious cycle of impunity, deprivation, and exclusion. The inability of these vulnerable ones to pursue justice remedies through existing systems increases their vulnerability and violations of their rights, while their increased vulnerability and exclusion further hampers their ability to use justice systems. Eventually, lack of access to justice for displaced persons will only be defeated when the law works for everyone.[27]
Improving access to justice is a fundamental tool in the enjoyment of rights and crime prevention. Accessible justice systems can be tools to overcome deprivation, for example by enforcing access to basic public services for all and developing jurisprudence on social and economic rights. Violence and conflict can be reduced through the provision of fair, effective channels for peaceful dispute resolution. Better access to justice enhances accountability, ensuring that public and private institutions and service provides are accountable to the population they serve. Access to justice by the displaced is a crucial step in enabling them to enjoy their rights and to participate in society on an equal basis with the rest of the population.
The International Bar Association (IBA) adopted access to justice as a comprehensive concept, which covers different stages of the process of obtaining a solution to civil or criminal justice problems. It starts with the existence of rights enshrined in the laws and with awareness and understanding of such rights. It embraces access to dispute resolution mechanisms as part of justice institutions that are both formal (i.e, institutions established by the state) and informal (i.e, indigenous courts, councils of elders, and similar traditional or religious authorities).[28]The IBA concluded that effective access includes the availability of, and access to, counsel and representation and it encompasses the ability of such mechanisms to provide fair, impartial, and enforceable solutions.[29]
Additionally, the Open Society Initiative for West Africa conceptualizes access to justice as having three major features:
(i) Knowledge: people must have information and knowledge about their rights and how to access them, and this extends to service providers as they are required to have appropriate knowledge and expertise for the provision of effective services
(ii) The environment: the state’s systems and infrastructure for service provision must be effective and easily accessible; and
(iii) The quality of services: It is not only necessary that services should be provided; the services provided must be the optimal and ultimate service obtainable.[30]
States responsibilities in enhancing Access to Justice
The State has primary responsibility for maintaining law and order and ensuring full and equal access to justice for everyone within its jurisdiction. This includes ensuring that all institutions and agents of the State, including the courts, the police, prosecutors, and prison authorities, respect and protect human rights. To that effect, States are required to:[31]
- Take all appropriate legislative, administrative and other action to preventviolations of rights.
- Investigate violations effectively, promptly, thoroughly, and impartially.
- Prosecute or take other action against those allegedly responsible.
- Provide the victims with full, equal, effective, and safe access to justice.
- Ensure that remedies are provided and enforced by institutions of the State.
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.[32]
Displaced persons are often met by new laws unlike those in their home countries and states they fled from. Ignorance of the law and their rights becomes an impediment to the enjoyment of the rights.[33]When people flee their homes and seek refuge in foreign countries, they become highly vulnerable to poverty and marginalization. This in turn limits their enjoyment of human rights, the right to access justice being chief among them.
Harding et alnoted 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.[34]
Access to justice for displaced persons is also hampered by the long distances between the courts of law and the displaced settlements. Addressing the needs of access-to-justice of displaced persons before a trial court, there must be a deliberate effort towards their legal empowerment. Their disempowerment starts with language barriers, especially if they are unable to speak English, inadequate time and facilities to prepare their defence, not being informed promptly in the language that he/she understands and in details of the nature of the offence they committed, inability to secure legal representation and inability to perfect bail application as a result of lack of sureties. The high cost of legal representation is another barrier to accessing justice.[35]Poverty is one of the factors that make displaced persons vulnerable. As they flee from persecution, natural disasters, and insecurity in their home, they have no time to carry along their assets in the desperate attempt to remain alive. Thus, they lack the financial capacity to pay for legal representation in demanding their rights. It is prevalent for people to condone a breach of their rights simply because they cannot afford the cost of seeking remedies. True to its words, there is no such thing as a free meal; even access to justice in Nigeria comes at a price. For those who can afford it, it is available, for those who cannot; the same is often delayed, denied and worse buried.[36] Poverty is a major inhibitor against the ability of displaced persons to exercise legal rights or to access to justice. Consequently, displaced persons who are blocked from accessing justice are sometimes either forced to take justice into their own hands through illegal or violent means or to accept unjust settlements.
According to Justice C.A. Oputa ‘poverty is another modern form of slavery’.[37]In the words of Eminent Jurist Aguda,:
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.
The Constitution of the Federal Republic of Nigeria, 1999 (as amended) in its preamble provides that the Constitution is for, “promoting the good government and the welfare of all persons in our country on the principles of Freedom, Equality, and Justice.” How do we promote the welfare of all persons including the displaced persons in Nigeria on the principles of ‘Freedom, Equality and Justice’ when the displaced persons cannot access the court because of the high cost of litigation coupled with delays in the determination of cases occasioned by our laws?[38]
Furthermore, the non-appearance of displaced persons who are either parties or witnesses usually results in repeated court adjournments, delays in the execution of the speedy process. The displaced persons residing in camps have restricted movement and as such, to exit the camp, they are required to obtain a pass which takes time to be processed. This affects their prompt appearance in court. Many displaced persons, particularly those residing in host communities, are transient and lack a permanent fixed address. This creates challenges in serving court processes on them, thus hampers access to justice.[39]Failure to enforce judgments or a delay in such enforcement (i.e. delays in carrying out a final judgment to ensure that obligations are imposed or fulfilled in practice) also constitutes an obstacle to accessing justice. The ECtHR has made it clear that failure to enforce a final judgment amounts to a breach of the right to an effective remedy.[40]The challenges of access to justice exist for both criminal and civil justice. For the purpose of this article, we are focused solely on access to criminal justice. The question then is what possible solutions can be advanced for addressing these challenges. If a population is transient, what justice mechanism can be activated to help bridge the access gap for the people.
Mobile Court
Mobile court connotes a special arrangement of the court which moves from place to place, as opposed to, the court in the enclosed place, to adjudicate laws for the ulterior purpose of ensuring justice.[41]The Mobile Court are created to save time, reduce legal and other expenses. The court goes to the place of the offence or claim, and provides justice speedily.[42]It has been suggested that the mobile Court is the best option today to get the lowest cost law services and fastest court judgment.[43]Mobile court disposes most of the cases summarily and it is being headed by a magistrate. Since a Mobile Court is presided over by a Magistrate, the practice and procedure of Magistrates’ Court in that state shall certainly avail such a mobile Court.
Hosen and Ferdous submitted that ‘mobile court connotes a special arrangement of the court which moves from place to place, as opposed to, the court in the enclosed place, to adjudicate laws for the ulterior purpose of ensuring justice.[44]Mobile courts, in principle, function like any other court in the regular justice system; the types of crimes they can prosecute accordingly vary and depend on each country’s legal framework and on the type of mobile court that is preferred by the authorities. However, because of their non-permanent nature, countries will often choose to limit the jurisdiction of these courts to more simple cases that can be treated in relatively short court sessions.[45]
According to the United Nation, the use of mobile courts has allowed for the hearing of cases in remote areas, where the local population would not otherwise have had access to the justice system. This has allowed victims and witnesses to participate in proceedings and to testify, reinforcing a victim-centered approach towards justice.[46]Mobile courts enhance public confidence in the justice system as the trials will affirm that the government is inclined to arrest and prosecute remote areas offenders. These mobile courts dispense justice in a summary and arbitrary way since they do not have the room for full-fledged trial within the time at their disposal.
Roles of Mobile Court in Enhancing Access to Justice
There are several roles of the mobile court in enhancing access to justice for displaced persons and they include:
- Enhancing Public Legitimacy and Confidence: Today, the judiciary is being attacked from all sides and the public enthusiasm in the justice delivery is receding. It is not merely of some importance, but it is of fundamental importance that justice should not only be done but should manifestly and undoubtedly be seen to be done.[47]The Court of Appeal in the case ofPDP v Jime & Ors[48]per Habeeb Adewale Olumuyiwa Abiru, JCA held:
The justice delivery system is in the business of service delivery to the members of the public. Thus, it behooves every stakeholder in the justice system to take all necessary steps to promote a cost-effective, timely, and efficient system so as to engender public confidence in our justice system. We must never lose sight of the fact that justice is rooted in public confidence and is essential to social order and security. It is the bond of society and the cornerstone of human togetherness. Justice is the condition in which the individual is able to identify with society, feel at one with it and accept its rulings. The moment members of the society lose confidence in the system of administration of justice, a descent to anarchy begins.[49]
Indisputably, parity of treatment in the administration of justice demands the maintenance of a complete balance in the scale of justice. Thus, procedural inequality or unfairness is not welcome in mobile court trials. Mobile courts have to do substantial, justice-stark justice, based on fairness which to all intent and purposes, seeks to not only ensure fairness in dispensing justice but which is manifestly seen and duly acknowledged by all and sundry as justice both in content and context.[50]Mobile courts serve a very critical function in terms of enhancing public legitimacy, confidence, and trust in the integrity and delivery of justice among the displaced persons.
- Expedite Justice: Delay in the disposal of cases facilitates the people to raise eyebrows, sometimes genuinely, which if not checked may shake the confidence of the people in this judicial system.[51]Hence, the need to adopt a mobile court system in displacement camps to fast track justice dispensation through their summary trial procedures. According to David and Turku, “studies have shown that mobile courts are the most effective means of reducing judicial delay and allowing more vulnerable populations to access the justice system in countries where courts are centralized in the capitals and remote areas are not well connected by roads.[52]Mobile courts have been used as a strategy to enhance justice in refugee camps. They were first introduced in 1998 in Kenya’s Dabaas and Kakuma Camps, where local magistrates would in principle, visit every month to hear cases, and UNHCR would monitor the proceedings and provide material and advisory assistance to witnesses.[53]The non-appearance of displaced persons who are either parties or witnesses in court as a result of long-distance to courts which usually result in repeated court adjournments, delay in execution of the speedy process can be remedied with the establishment of mobile courts in displacement settlement camps.
- On-spot judgment delivery: Mobile court creates a revolutionary change to enforce laws in the country by arranging on-spot and prompt judgment which rejuvenates the trust among the citizens towards the judiciary. On-spot trial procedure under mobile court is primarily meant to stop rampant violation of law by a huge number of perpetrators in an area. It is an effective tool for curbing down offences and, thereby, helping law enforcement agencies to maintain law and order in society.[54]Awarding punishment on the spot imparts a good vibe in people’s minds as it gives them an idea of a proactive administration and they can witness the proceeding publicly.[55]Mobile court facilitates access to the trial for victims. For practical reasons, since they do not have to physically move to testify, but also for psychological reasons: a familiar and safe environment can make it easier for victims to speak. This is especially important when crimes are recent or can potentially lead to stigmatization such as sexual violence. Where the court moves to the displacement camp, it is the symbol of the state which moves with it, and in particular, the sovereign power to render justice. This practice thus serves an educational and deterrent effect. Both the victims and the criminals see justice concretely follow its course, reinforcing the notion that no one is above the law. [56]
In 2007, Yogesh Kumar Sabharwal, Chief Justice of Indiasaid “People generally go to courts to get justice but today with mobile courts, the courts will come to the people.”Unlike the ordinary courts, mobile courts move to the place of occurrence with a complete remedial package such as the magistrate, prosecution, police, etc. The accused, subject to his confession of guilt, can be brought to justice within a few hours.[57]This innovation greatly revolutionizes the quality of judicial services on a limited scale and it makes everyone better off- the magistrates who are overburdened with cases, the prosecutors, and the masses. Mobile Courts strengthen the role of the formal justice system in remote areas; the presence of justice institutions where there has never been any before.[58]
If the criminal courts are to contribute to a reduction in crime, it will not be by stuffing more people into already overcrowded prisons and jails; thus mobile courts in Nigeria in line with the sentence restrictions imposed on them resort to imposition of fines and community service.[59] Under the ACJA, the court, in exercising its powers to sentence the convict shall have regard to the need to: (a) reduce congestion in prisons; (b) rehabilitate prisoners by making them undertake productive work, and (c) prevent convicts who commit simple offences from mixing with hardened criminals.[60]
Hence, the resort to imposition of fines and community service has given justice a human face and the impact of this community service as a sentence helps ameliorate the trauma these displaced persons are passing through already and helps decongest our prisons.[61]
- Peacekeeping: Mobile courts in peacekeeping settings contribute to a range of goals. They are an instrument in the fight against impunity which often prevails in the remote regions where mobile courts operate and strengthen national accountability systems. They provide victims direct and easy access to justice, and the opportunity to see justice being done before their eyes; this, in turn, can play a role in community healing after conflicts and also increase the trust people have in the formal justice systems.[62]Mobile courts contribute to the promotion of a peaceful society, as conflicts are settled through legal means rather than through violence. Through their roles in non-criminal cases, these courts can play important roles in the post-conflict normalization of society and build long-term stability. Mobile courts are often accompanied by forms of outreach, which can inform the local population on a broad range of justice and reconciliation-related issues.[63]While doing so, mobile courts contribute to the extension of state authority and improve the visibility of the state in remote regions, as mobile courts bring state officials into regions where they are not usually present; this, in turn, promotes peace and stability. [64]
Challenges of Mobile Court
Security and logistics are often issues when running mobile courts, as they take place in remote areas or in areas where there is a weak state presence.[65]Another challenge is that the local population can perceive prosecutions for acts of conflict-related violence as somehow biased against one of the warring factions; it is, therefore, essential for mobile court sessions to be accompanied by outreach campaigns that explain the prosecutorial approach.[66]Notably, it is often challenging to manage the expectations of local populations, who sometimes expect quick convictions and/or harsh punishments for defendants. Clear messaging is particularly important in cases where defendants are acquitted or receive lenient sentences.[67]
Furthermore, the mobile court has limited jurisdiction in relation to the matters they handle. They are not empowered to handle matters bothering on capital offences and fundamental rights cases because it is only the High Court that are empowered to handle such cases. In the instance that the mobile court declines jurisdiction to entertain matters of capital offence, the suspect is being remanded and the time frame within which the matter will be heard due to lack of facility is uncertain and this leads to congestion of our prison facilities. In an attempt to have a speedy justice delivery, it may lead to miscarriage of justice. It is pertinent to state that the mobile court should not sacrifice justice at the altar of its speedy dispensation.
Recommendation
To resolve the issue of limited jurisdiction in matters that is being heard in the mobile court, it is necessary for Judges to be assigned to chair the mobile courts rather than Magistrates. Judges are empowered by law to hear cases on fundamental rights and capital offences, thus, the excessive practice of remanding people will reduce. Access to justice can be facilitated through strategic legal awareness of the laws of the country and how the court works and the reasons why displaced persons should approach the legal means of seeking remedies other than resort to self help.
The government, since they come move to the venue of trial with their team of prosecutors, magistrates, registrars and clerks, it is also essential that they go the settlement camps with legal aid lawyers and public defenders so that trials will not be forestalled as a result of no legal representation. In the light of the overwhelming number of displaced persons and number of disputes to be resolved, it is pertinent that traditional justice system and alternative dispute resolution be also adopted to settle disputes amicably without creating the mindset of Winner-Loser among the litigants.
Conclusion
The agglomeration of all the analysis so far advanced, festooned with entrancing galaxy of primary and secondary authorities, affords us with the jurisprudential beacons in arriving at the inevitable conclusion that States are imposed with legal responsibilities towards enhancing access to justice to everyone. This paper examined the definition of refugee as provided in the 1951 Convention and the descriptive definition of Internally Displaced Persons in the Guiding Principle and set down the distinction in the two categories of displaced persons. The paper went further to underscore the concept of access to justice and the essential features of access to justice. It was also observed that there several factors limiting access to justice and the responsibility of the State at enhancing access to justice in line with Goal 16 SDG for 2030. In line with ensuring for access to justice for all particularly the displaced persons who are vulnerable as a result of the displacement, the United Nations has encouraged the use of mobile court in justice dispensation. This paper further considered the concept of mobile courts and its roles in enhancing access to justice. It was observed that despite the role of the mobile court, the system is also fraught with challenges. However, the recommendations provided in this paper, if harnessed by the justice sector stakeholders, it will be beneficial at enhancing access to justice for displaced persons.
Endnotes:
[1]Chudi Ojukwu is an Associate Professor of Law at the Department of Public Law, College of Law, Gregory University , Uturu. cojukwu@gmail.com
[2]Chidera Nwokeke, ‘Nigeria at 60: The state of access to justice for displaced persons and the role of mobile court’ (31 October 2020) <https://legalpages.com.ng/nigeria-at-60-the-state-of-access-to-justice-for-displaced-persons-and-the-role-of-mobile-court/> accessed 4 October 2021
[3]Convention Relating to the Status of Refugees(28 July 1951) 189 UNTS 137 (1951 Convention), <http://www.refworld.org/docid/3be01b964.html> accessed 5 October 2021
[4]Judy El-Bushra and Kelly Fish, ‘Refugees and Internally Displaced Persons’ <https://international-alert.org/sites/default/files/library/TKRefugees.pdf> accessed 4 October 2021
[5]OHCHR, ‘About Internally Displaced Persons’ <https://ohchr.org/en/issues/idpersons/pages/issues.aspx> accessed 4 October 2021
[6]UNHCR, Handbook for the protection of Internally Displaced Persons(Geneva: Global Protection Cluster Working Group, December 2007) 6 <https://unhcr.org/47949ec92.pdf> accessed 5 October 2021; Norwegian Refugee Council/Camp Management Project, “The Camp management Toolkit’ May 2008 <https://scribd.com/doc/82426232/Camp-Management-Toolkit> accessed 5 October 2021
[7]OHCHR, (n 4)
[8]OHCHR, (n 4)
[9]UNHCR, ‘Nigeria Emergency’ <https://www.unhcr.org/Nigeria-emergency.html>accessed 5 October 2021
[10]IOM, ‘Northeast Nigeria: Displacement Report (May 2021)’ <https://reliefweb.int/report/nigeria/northeast-nigeria-displacement-report-36-may-201> accessed 5 October 2021
[11]OHCHR, (n 4)
[12]OHCHR, (n 4)
[13]OHCHR, (n 4)
[14]UNHCR, Handbook for the protection of Internally Displaced Persons.(n 5)
[15]UNHCR, Handbook for the protection of Internally Displaced Persons (n 5)
[16]Andres Celis, ‘Protection of the Internally Displaced by Constitutional Justice: The role of the Constitutional Court in Colombia’ in Rodolfo Arango Rivadeneira, Judicial Protection of Internally Displaced Persons: The Colombian Experience(The Brookings Institution 2009) <https://www.brookings.edu/wp-content/uploads/2016/06/11_judicial_protection_arango.pdf> accessed 6 October 2021
[17]M Cappelleti, ‘Access to Justice and the welfare State’ (1983) 81(4) Michigan Law Review 1006; Garth, B. & Cappelletti, M., ‘Access to Justice: The Newest Wave in the Worldwide Movement to make Rights effective’ (1978) Articles by Maurer Faculty, paper1142
[18]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
[19]Global Alliance Against Traffic in Women (GAATW),‘Access to Justice for Trafficked persons’ (Bangkok: Thailand, June 2006), <https://www.scribd.com/document/294490913/ACCESS-TO-JUSTICE-FOR-TRAFFICKED-PERSONS> accessed 6 October 2021
[20]M T Ladan, ‘Access to Justice and Justice sector reform in Nigeria’ (A paper presented at the First International Conference on the state of affairs of Africa, organised by the International Institute for justice and development (IIJD), Boston, MA, USA, 26-28thOctober, 2006)
[21]C. N. Okogbule, ‘Access to Justice and Human Rights protection in Nigeria: Problems and Prospects’ (2005)3Sur-International Journal on Human Rights96, 97; O Bamgbose, ‘Access to Justice through clinical legal education: A way forward for good governance and development’ (2015) 15 African Human Rights Law Journal378, 396 <http://dx.doi.org/10.17159/1996-2096/2015/v15n2a7> accessed 6 October 2021
[22]E Ojukwu and others, Handbook on Prison Pre-Trial Detainee Law Clinic(Network of University Legal Aid Institutions 2012) 225
[23]United States Institute of Peace, ‘Necessary conditions: Access to justice’ <https://www.usip.org/guiding-principles-stabilization-and-reconstruction-the-web-version/>accessed 6 October 2021
[24]United States Institute of Peace, (n 22)
[25]United Nations Peacekeeping, ‘Bringing justice to the people: How the UN is helping communities deal with disputes in remote and dangerous areas’ 29thApril, 2019, <https://peacekeeping.un.org/en/un-news/bringing-justice-to-people-how-un-is-helping-communities-deal-with-disputes-remote-and> accessed 7 October 2021
[26]United Nations Peacekeeping, (n 24)
[27]UNGA, ‘Report of the working group on enforced or involuntary disappearances’ July 2015, A/HRC/30/38/Add.5 <https://www.ohchr.org/EN/HRBodies/HRC/RegularSessions/Session30/Documents/A_HRC_30_38_Add_5_ENaG-.docx> accessed 7 October 2021
[28]J Beqiraj and L McNamara, International Access to Justice: Barriers and Solutions (Bingham Centre for the Rule of Law Report 2014),International Bar Association, October 2014 <https://www.binghamcentre.biicl.org> accessed 7 October 2021
[29]J Beqiraj and L McNamara (n 27)
[30]A I Jacobs and William Park ‘Victimology, Victimisation and Victims Access to Justice in Nigeria’ (2020) 8(3) International Journal of Innovative Legal & Political Studies97 <https://www.seahipaj.org> accessed 7 October 2021
[31]UNHCR, Handbook for the protection of Internally Displaced Persons (n 5)
[32]World Bank, “Barriers to Access to Justice‟ (2008).
[33]Colman Ntungwerisho, ‘Leaving nobody behind: The access to justice challenges of Refugees in Uganda’ (2019) 20 ESR Review10 <https://journals.co.za/doi/pdf/10.10520/EJC-1d47d6a5a3> accessed 7 October 2021
[34]Andrew Harding, and others, ‘Access to Justice and the Rule of Law’ [2008] Forced Migration Review
[35]Ntungwerisho, (n 32)
[36]Nwokeke (n 1)
[37]C A Oputa, Idigbe Memorial Lectures Human Rights in the Political Legal Culture of Nigeria(Nigerian Law publications 1989) 94
[38]Nwokeke (n 1)
[39]UNHCR, ‘Promoting access to justice for IDPs in Maiduguri, Borno State’ <https://www.globalprotectioncluster.org/_assets/files/field_protection_clusters/Nigeria/files/report-legal-project-launch_en.pdf> access 7 October 2021
[40]Nathy Rass-Masson and Virginie Rouas (n 17)
[41]Gazi Delwar Hosen and Syed Robayet Ferdous, ‘The Role of Mobile Courts in the Enforcement of Laws in Bangladesh’ (2010) 1Northern University Journal of Law82
[42]Kefiloe Kajane, ‘Lesotho launches mobile traffic court’ The Reporter (June 2020) <https://www.pressreader.com/lesotho/the-reporter/20200703/281552293138087> accessed 6 October 2021
[43]Monica Rispo, ‘Evaluation of UNDP’S Support to Mobile Courts in Sierra Leone, Democratic Republic of Congo and Somalia’, (2014) New York, UNDP Bureau for Crisis Prevention and Recovery Pg 1 Fn 1.
[44]Gazi Delwar Hosen and Syed Robayet Ferdous, (n 40)
[45]UNMISS/Janet Adongo, ‘Bringing justice to the people: How the UN is helping communities deal with disputes in remote and dangerous areas’ (29 April, 2019) <https://news.un.org/en/story/2019/04/1037411> accessed 5 October 2021
[46]UNMISS/Janet Adongo (n 44)
[47]R v Sussex Justices Ex Parte Marcathy (1924) 1 K B, 256 @ 259 per Hewart C J
[48](2019) LPELR-48229 (CA) Pp 55-57, paras E-D
[49]Mbas Motel Ltd v Wema Bank Plc (2013) LPELR 20736 (CA) per Agim JCA
[50]Alioke v Oye & Ors (2018) LPELR-45153 (SC)
[51]M D Junaid, ‘Speedy Trial in Criminal Justice System’ (Appraisal Thesis, Department of Law Aligarh Muslim University Aligarh India 2009); Alhaji Hassan Khalid v Al-Nasim Travels & Tours Limited & Anor (CA/K/257/2012) https://nigerialii.org/ng/judgment/court-appeal/2014/12
[52]D. William and H. Turku, ‘Access to Justice and Alternative dispute resolution:’ Journal of dispute resolution 1 [4]: 47-65
[53]Nwokeke (n 1)
[54]G M Rahman ‘Mobile Courts in maintaining order’ (13 October 2018) <https://www.newagebd.net/article/53014/mobile-courts-in-maintaining-order> accessed 4 October 2021
[55]Rahman (n 53)
[56]Trial International ‘Mobile Courts in the DRC: Why, and how?’ (28 October 2019) <https://trialinternational.org/latest-post/mobile-courts-in-the-drc-why-and-how/> accessed 7 October 2021
[57]Sohel Rana, ‘Mobile Courts can make a difference’ The Daily Star Newspaper <https://www.thedailystar.net/perspective/mobile-courts-can-make-difference-1368808> accessed on 7 October, 2021
[58]Nwokeke (n 1)
[59]Nwokeke (n 1)
[60]Law Pavilion, ‘The Administration of Criminal Justice Act, 2015 (ACJA)’< https://lawpavilion.com/blog/the-administration-of-criminal-justice-act-2015-acja/> accessed 6 October 2021; Section 460 (2)(3) Administration of Criminal Justice Act, 2015
[61]Nwokeke (n 1)
[62]United Nations Peacekeeping, (n 24)
[63]UNMISS/Janet Adongo (n 44)
[64]UNMISS/Janet Adongo (n 44)
[65]UNMISS/Janet Adongo(n 44)
[66]UNMISS/Janet Adongo(n 44)
[67]UNMISS/Janet Adongo (n 44)
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