IMPROVING JUSTICE IN LIBERIA A 2023 JUPITER ASSESSMENT Governance Global Practice © 2023 International Bank for Reconstruction and Development / The World Bank 1818 H Street NW Washington DC 20433 Telephone: 202-473-1000 Internet: www.worldbank.org This work is a product of the staff of The World Bank with external contributions. The findings, interpretations, and conclusions expressed in this work do not necessarily reflect the views of The World Bank, its Board of Executive Directors, or the governments they represent. The World Bank does not guarantee the accuracy, completeness, or currency of the data included in this work and does not assume responsibility for any errors, omissions, or discrepancies in the information, or liability with respect to the use of or failure to use the information, methods, processes, or conclusions set forth. The boundaries, colors, denominations, and other information shown on any map in this work do not imply any judgment on the part of The World Bank concerning the legal status of any territory or the endorsement or acceptance of such boundaries. Nothing herein shall constitute or be construed or considered to be a limitation upon or waiver of the privileges and immunities of The World Bank, all of which are specifically reserved. Rights and Permissions The material in this work is subject to copyright. Because The World Bank encourages dissemination of its knowledge, this work may be reproduced, in whole or in part, for noncommercial purposes, as long as full attribution to this work is given. Attribution: Please cite this report as follows: Bosio, Erica, and Virginia Upegui. 2023. Improving Access to Justice in Liberia – A 2023 JUPITER Assessment. Washington, DC: World Bank. Any queries on rights and licenses, including subsidiary rights, should be addressed to World Bank Publications, The World Bank Group, 1818 H Street NW, Washington, DC 20433, USA; fax: 202-522-2625; e-mail: pubrights@worldbank.org. IMPROVING JUSTICE IN LIBERIA A 2023 JUPITER ASSESSMENT Governance Global Practice IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 4 TABLE OF CONTENTS Abbreviations 8 Acknowledgments 11 Executive Summary 13 1. Introduction 18 2. Main Findings from Data Collection 20 2.1 The customary system is an integral part of the justice system, by law and in practice 20 a. Legal coexistence 20 b. Geographical coexistence 25 2.2 Customary authorities preside over issues related to family law, land disputes, and petty crimes 28 a. Jurisdictional coexistence 28 b. Blurred lines between formal and customary justice 32 2.3 The formal system is perceived to be inaccessible and unfair, significantly more so than the customary system 34 a. Trust and satisfaction 34 b. Access to justice for women 38 c. Access to justice for the poor 39 d. Access to justice for people with linguistic barriers 41 e. Access to justice for people with disabilities 41 f. Access to information 42 g. Quality of judgments 44 2.4 Formal courts are costly and slow 47 a. Cost 50 b. Delays 54 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 5 3. Policy Implications 60 3.1 Making laws, regulations, and selected judgments public 62 3.2 Addressing backlog and delays in the courts 64 3.3 Addressing cost in the courts 65 3.4 Establishing rules of engagement between the courts and the customary system 66 3.5 Standardizing processes in the customary system and introducing procedural safeguards 68 3.6 Documenting customary law 70 4. Implications for Justice Work in the Region 72 Annex A – JUPITER Methodology and its Application to Liberia 74 A.1 JUPITER Methodology 75 a. Questionnaire Design 75 b. Data Sources and Data Collection Process 77 c. Variables Categories 78 d. Variables Description 79 e. Data Management and Review 85 A.2 Application to Liberia 86 a. Background research 86 b. Questionnaire Design and Identification of Stakeholders 86 c. Data Sources 87 Annex B – Data for Liberia 90 B.1 Access to Justice Pillar 90 B.2 Efficiency Pillar 101 B.3 Quality Pillar 105 Annex C – Literature Review Motivating the Selection of Indicators 110 C.1 Access 111 C.2 Efficiency 113 C.3 Quality 114 Bibliography 116 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 6 FIGURES Figure 1. Formal courts serve a high number of people in some counties 24 Figure 2. Liberians interact more frequently with informal justice actors 26 Figure 3. Liberians’ interaction with informal justice actors is prevalent in most counties 27 Figure 4. Hierarchy of customary justice actors by law 30 Figure 5. Liberians trust the customary system more than the courts 34 Figure 6. Customary justice is perceived as fairer and impartial 35 Figure 7. Liberians are more satisfied with informal justice actors 35 Figure 8. Liberians are more satisfied with informal justice actors’ skills and qualifications 36 Figure 9. Accessing the customary system is easier than accessing the courts 37 Figure 10. Weaknesses in Formal Courts 39 Figure 11. Main constraints in accessing the courts 47 Figure 12. Liberia’s budget per capita is in line with that of other economies in the region 49 Figure 13. Attorney fees in Liberia are comparable with those charged by neighboring countries 53 Figure 14. The customary system is perceived as being more efficient and effective than the courts 54 Figure 15. Liberians have a higher trust in the customary system’s timeliness 55 Figure 16. The Supreme Court is massively backlogged 56 Figure 17. Clearance rates are higher in lower instance courts 58 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 7 TABLES Table 1. The formal court system in numbers 29 Table 2. Forum usage for civil disputes 33 Table 3. Forum usage for criminal disputes 33 Table 4. Spending on Security and the Rule of Law sector by key administration entity 48 Table 5. Judiciary budget allocation per object of expenditure 50 Table 6. Detail of the workload in Circuit Courts, Specialized Courts, Magistrate Courts, and the Supreme Court 57 BOXES Box 1. CMIS Pilot in Liberia 45 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 8 ABBREVIATIONS ABA ROLI American Bar Association Rule of Law Initiative ADR Alternative Dispute Resolution AFELL Association of Female Lawyers of Liberia CENTAL Center for Transparency and Accountability in Liberia CEPEJ European Commission for the Efficiency of Justice CLDMC Community Land Development and Management Committee CMIS Case Management Information System CSAE Centre for the Study of African Economies at Oxford University DCAF Geneva Centre for Democratic Control of Armed Forces FCDO Foreign, Commonwealth and Development Office, UK FCV Fragility, Conflict and Violence GGP Governance Global Practice of the World Bank Group GREAT Governance Reform and Accountability Transformation Project ICCPR International Covenant on Civil and Political Rights ICT Information and Communications Technology IDLO International Development Law Organization ILAC International Laboratory Accreditation Cooperation ISSAT International Security Sector Advisory Team JIC Judiciary Inquiry Commission JUPITER Justice Pillars Towards Evidence-based Reform LiberLII Liberia Legal Information Institute LISGIS Liberia Institute of Statistics and Geo-Information Services LNBA Liberia National Bar Association LWG Legal Working Group MIA Ministry of Internal Affairs of Liberia MFA Ministry of Foreign Affairs of Liberia MOJ Ministry of Justice of Liberia NGO Nongovernmental Organization OHCHR Office of the High Commissioner for Human Rights, United Nations PBO Peacebuilding Support Office of the United Nations IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 9 SGBV Sexual and Gender-Based Violence SPF 2.0 Peacebuilding 2.0 Umbrella Trust Fund TTL Task Team Leader UNDP United Nations Development Programme UNHCR United Nations High Commissioner for Refugees UNICEF United Nations Children’s Fund UNMIL United Nations Mission in Liberia USAID United States Agency for International Development USIP United States Institute of Peace WB The World Bank WBG World Bank Group WDR World Development Report WJP RLI World Justice Project Rule of Law Index IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 10 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 11 ACKNOWLEDGMENTS This study was developed under the Justice Pillars Towards Evidence-based Reform (JUPITER) Initiative by a team led by Erica Bosio (Senior Public Sector Specialist, Governance Global Practice), main author of the study. Extensive on-the-ground support was provided by Runyararo Gladys Senderayi (Senior Public Sector Specialist, Liberia Country Team). Excellent research and edits were provided by Samwar Fallah, Ana Palacio Jaramillo, Prince Powo, Kartik Saboo, and Virginia Upegui. Reviewers of the study included Deborah Hannah Isser (Lead Governance Specialist), Zahid Hasnain (Lead Governance Specialist), Adrienne Hathaway-Nuton (Governance Specialist), MacDonald Nyazvigo (Senior Financial Management Specialist), Christine Anyango Owuor (Senior Public Sector Specialist), Furqan Ahmad Saleem (Operations Adviser), Srdjan Svircev (Senior Public Sector Specialist), Georgia Wallen (Country Manager for Liberia), Caroline Nelima Wambugu (Operations Officer), Abdoul Akim Wandaogo (Consultant) and Cari Votava (Senior Financial Sector Specialist). Arturo Herrera Gutierrez (Global Director, Governance Global Practice), Tracey Lane and Roby Senderowitsch (both Practice Managers) provided overall guidance on the study. Additional support was provided by Reinhard R. Haslinger (Senior Operations Officer), and Katherine Elizabeth Wolff Siess (Program Assistant). Richard Crabbe provided editorial services, while design support was provided by Anatol Ursu. The authors wish to thank representatives of the Office of the Chief Justice of Liberia; the Ministry of Justice (MOJ) – including their sections of Alternative Dispute Resolution (ADR), Child Justice, Civil Litigation, and Human Rights; the Judiciary – including the National Association of Trial Judges, the departments of Documentation, Information and Communications Technologies (ICT), Public Information, Personnel, Projects, Planning, the Judicial Institute, and various officials of the Temple of Justice in Monrovia; the Ministry of Internal Affairs (MIA), the Ministry of Finance and Development Planning, the Ministry of Foreign Affairs (MFA); the Liberia National Bar Association (LNBA); and the Association of Female Lawyers of Liberia (AFELL). The authors also benefited from discussions with members of the Inter-Agency Rule of Law Working Group in Liberia, including the International Development Law Organization (IDLO), United Nations High Commissioner for Refugees (UNHCR), former UNMIL (United Nations Mission in Liberia) members, U.S. Department of State, International Laboratory Accreditation Cooperation (ILAC), U.S. Agency for International Development (USAID), the Swedish Embassy, UN Women, United Nations Children’s Fund (UNICEF), and the Foreign, Commonwealth and Development Office (FCDO) of the Government of UK. Finally, this research would not have been possible without the support of hundreds of lawyers and users who afforded us their time in answering the JUPITER questionnaire. The authors are deeply indebted to UNDP for giving them full access to their most recent data, which was extensively used in this study. This study was made possible by the State and Peacebuilding Umbrella Trust Fund 2.0 (SPF2.0) and by the Governance and Institutions Umbrella Trust Fund. The SPF2.0 is a global multi-donor fund administered by the World Bank that works with partners to address the drivers and impacts of fragility, conflict, and violence (FCV) and strengthen the resilience of countries and affected populations, communities, and institutions. The SPF2.0 is kindly supported by Denmark, Germany, Netherlands, Norway, Sweden, and Switzerland. The Governance and Institutions Umbrella Trust Fund is a multi-donor fund administered by the World Bank with the objective of supporting countries to improve public sector performance and institutional reform. It is kindly supported by the Chandler Foundation, the MacArthur Foundation, the Hewlett Foundation and the FCDO. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 12 ES. EXECUTIVE SUMMARY Liberia’s lack of effectiveness in handling judicial In a first-of-its-kind JUPITER assessment, a disputes has been consistently recognized as a standardized methodology is used to benchmark weakness and one of the main obstacles to the the state and performance of Liberia’s judiciary country’s transition out of fragility.1 Liberia performs against specific measures of effectiveness and to poorly in international datasets benchmarking compare key features across countries. The study justice and the rule of law. For instance, in the focuses on the effectiveness of the system in World Justice Project Rule of Law Index (WJP service delivery in three areas – access to justice, RLI), it ranked 112 out of 140 countries in 2022, efficiency, and quality – and presents the main meaning that it is among the thirty countries with challenges that emerged from the empirical work the weakest adherence to the rule of law. This to provide data-informed context-specific policy study originates from the Government’s desire to implications. improve the delivery of justice to its citizens through a practical sequence of steps that are underpinned by hard data and analytics. The challenges The empirical analysis yields four findings that These four findings are documented using a shed light on the path toward the improvement large body of evidence collected in the process of justice services in Liberia. First, the customary of developing this study, as well as empirical system is an integral part of the justice system, evidence from several other studies on the justice by law and in practice, and the preferred way to system in Liberia. Altogether, data from over solve disputes for most of the population. Second, 11,892 interviews with users over a period of 15 the jurisdictional boundaries of each system are years support the analysis, giving credibility to the unclear. Third, the formal system is perceived to resulting policy implications. be inaccessible and unfair, significantly more so than the customary system. Fourth, the courts are inefficient and characterized by long resolution times and high costs. 1. Liberia was removed from the World Bank Group’s list of Fragile and Conflict-affected Situations (FCS) in 2022 after 10 years, reflecting the strengthening of the country’s institutions. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 13 Accessibility and fairness of the courts Coexistence of the formal and  Only 28% of Liberians felt judges customary systems treated them equally, 23% felt  Liberia’s legal framework regulates that judgments were the same for several dimensions of the everyone, and 31% trusted their customary system, but it is not judges sufficiently comprehensive  Access to justice for women, the  17% of the courts in Liberia are not poor, and other minorities is low due functional to high cost, lack of infrastructure, the prominence of prejudice in  The customary system is dominant society, the huge influence played in counties in the Hinterland with by socio-economic conditions and the least number of courts per the lack of legal aid, among others inhabitant (Nimba, Lofa and Bong)  Laws, regulations and judgments are  89% of the inhabitants of Lofa, not published consistently, creating Nimba, Grand Gedeh, Bong, and ambiguities and inconsistencies that Maryland Counties took their are easily exploited disputes to a customary authority MAIN CHALLENGES and their implications Jurisdiction of the formal Efficiency and customary systems of the courts  Jurisdictional boundaries of the two  65% of users would not bring a systems are unclear claim to court due to the high costs  The customary system is used more resulting from a combination of often than the formal courts. In official and unofficial fees property disputes, the ratio of this  The Supreme Court only heard 6% usage is 2:1 in favor of customary of cases that were filed in 2022, justice. This ratio increases for land with an average resolution time of disputes 7.5:1; for divorce 12:1; and 14 years for other family matters 40:1  Specialized courts are the most  Customary decisions enjoy high efficient, with clearance rates levels of enforcement enabled by nearing 80% community acceptance, but can be discriminatory IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 15 The solutions Taken together, these findings draw a feasible path of judicial reform in Liberia, one that focuses on improving the efficiency of the formal system while making the procedures in the customary system more standardized. By law, the formal and customary systems have overlapping jurisdiction in the geographical areas where they compete, which makes them potential substitutes for each other and opens the opportunity for forum shopping. In practice, the two systems are complements where few users favor the formal system in certain types of disputes, while many users favor the customary one. This finding has one significant implication: that the improvement in the access, efficiency, and perceived fairness of the courts does not automatically mean that more Liberians will resort to their services. Such improvements must exceed the trust built in the customary system before any significant shift towards formal justice is witnessed. Six policy implications follow from this finding and the challenges presented above: 1. Making laws, regulations, and selected the establishment of clearer legal rules on the judgments public could help to improve process and timeframe for such publication. trust, transparency, and accountability of All these initiatives should be complemented the formal system. Publication can be done by awareness raising and legal education through the National Gazette, online, or through campaigns to increase their impact. other methods that take into consideration 2. Addressing backlog and delays in the courts the habits of Liberians with regards to how may increase their use. The Supreme Court they consume information—newspapers, of Liberia is backlogged, with hundreds of new radio, etc. Publication can leverage existing appeal cases coming every year, thus increasing platforms, such as LiberLII.2 The lack of wide case disposition time. Evidence from this study public access to a comprehensive set of laws suggests that this is, at least in part, due to the provides opportunities for government officials, amount of appeal cases coming from Circuit citizens, and businesses alike to act outside Courts and Specialized Courts, which have of the law, and reduces the accountability of original jurisdiction over a large number of cases. government and court officials. Further, when Two measures can be considered to decrease officials in all branches of government lack backlog. First, the amendment of Article 67 of access to laws and regulations, they cannot the Constitution to allow the appointment of two effectively fulfill their official duties, lawmakers additional justices to the Supreme Court bench, enact laws that are not properly harmonized for a total of seven judges. Second, the limitation with existing laws, judges are not certain they of the original jurisdiction of Circuit Courts by are upholding the most recent version of the expanding the jurisdiction of Magistrate Courts. law, and there is additional scope for judicial This can be done by raising the financial limits of corruption and error. Lawyers and users have the disputes that fall within the latter’s purview. little predictability on the possible outcomes of Appeals would then be heard by Circuit Courts judicial proceedings, increasing uncertainty and and Specialized Courts, which have been deterring investment and economic activity. increasing their clearance rates. Possible steps to increase public availability of laws, regulations, and judgments include 2. Liberia Legal Information Institute: http://liberlii.org/. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 16 3. Addressing the high cost of dispute resolution of “limited incorporation,” whereby they enjoy may encourage people to file their claims. a level of independence accompanied with State-based dispute resolution in Liberia is mechanisms for the oversight of the chieftaincy expensive, due to the compounded burden of structure under the Ministry of Internal Affairs formal and informal fees that lead to prohibitive (MIA). Yet, the rules of jurisdiction and referral of costs for many Liberians. Informal payments cases remain unclear, causing clashes between proliferate and gaps in the official fee schedule state and non-state jurisdictions. Based on an contribute to the unpredictability of costs for overview of global approaches on the models court procedures. These high costs significantly of recognition of nonstate justice systems, impact vulnerable populations, such as women, strategies to strengthen the relationship minorities, and the poor. Alongside the approval between formal and customary systems of of the Legal Aid Bill currently pending in justice in Liberia could include: (i) inventory on Parliament, possible ways forward to address the volume and type of disputes that are solved this issue could include (i) reviewing the current through each system; (ii) establishing a set of official fee schedule to regulate vacuums and criteria to determine when and which cases assess whether existing fees need updating; (ii) can be handled by customary authorities and reviewing the budget allocation of the Judiciary clear guidelines on how the systems interact, to ensure it covers key cost components; including the clarification of issues such as the (iii) minimizing face-to-face transactions referral of cases, appeal, and enforcement of by leveraging mobile payments and other customary decisions; (iii) clarifying the validity of technological solutions; (iv) broadening the laws that regulate the customary system, such market of legal services to include paralegals as the Hinterland Regulations, and amend them and enhance legal aid services; and (v) to ensure their compliance with international evaluating the effectiveness of the Judicial and domestic human rights standards; and (iv) Inquiry Commission in investigating corruption creating a committee to convene traditional cases. These solutions could be complemented leaders, government officials, members of the by overarching strategies to enhance the judiciary, lawyers, citizens, and other relevant effectiveness of the judicial system, such as stakeholders to discuss issues related to the the establishment of protocols for judicial data interface between the two systems. collection and processing. 5. Standardizing processes in the customary 4. Establishing rules of engagement between system and introducing procedural the courts and the customary system can safeguards can facilitate the engagement build mutually beneficial linkages between with the formal justice system and ensure the two to harness their positive aspects. better protection for justice seekers, The customary system plays an important role without undermining the effectiveness and in enabling access to justice and alleviating the authority of traditional leaders. Procedural backlog of formal courts. This role could be more aspects to be regulated may include the impactful if the rules of engagement between establishment of stricter and enforceable the formal and customary systems were rules for the appointment of Chiefs, as well strengthened and clarified. Liberia’s customary as rules of conduct for traditional leaders. justice authorities are recognized under a model Other procedural safeguards that can be IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 17 considered for standardization include form of enacted law, while the former describes minimum standards of rights protection, basic key customary principles to guide dispute rules of evidence admissibility, sentencing resolution. Documentation is a better solution guidelines, protocols for record keeping, and than codification in the Liberian context, given rules on making outcomes publicly available that it retains the flexibility of customary rules and accessible. On the latter, establishing some and mitigates risks of stagnation. In the end, form of written records is necessary to ensure these rules should retain their authority within effective engagement between the formal and their areas of influence and maintain their focus customary systems, and opens the door to the on keeping the harmony of the community. In future creation of state review mechanisms. any case, documentation efforts should include This could be facilitated by supporting the certain safeguards to prevent the crystallization establishment of protocols for case recording, of discriminatory norms and power imbalances including the use of standardized templates, on within the customary justice system. Just as it which customary authorities should be trained happens with codification, documentation raises to make this a sustainable option. Furthermore, the question of whose version of customary law whether the formal courts should be given should be considered. This risk may be mitigated the remit to hear appeals from the customary by ensuring the participation of community courts could be addressed in future legislation, members in the documentation process, and once regulated coexistence is in place. by creating mechanisms for the endorsement and periodic reassessment of documented 6. Documenting customary law is essential customary rules. This documentation strategy is if more integration between the formal also important to remove some of the discretion and customary systems is to be achieved. of traditional leaders that leads to harsher Currently, each of Liberia’s 16 ethnic groups decisions for women and minorities, as well have different customary rules, making it as to potentially address other human rights difficult for judges of the formal system to concerns that hinder the greater integration of reliably reference them in court. It is important the two systems. to note that documentation does not entail codification. The latter prescribes rules in the IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 18 INTRODUCTION 1. INTRODUCTION This study is a first-of-its-kind assessment that JUPITER is a country-based assessment framework uses the JUPITER methodology to benchmark developed by the WBG to benchmark the state the effectiveness of justice delivery in Liberia. It and performance of a country’s judiciary in service originated from the Government’s desire to have delivery against specific measures of effectiveness in data-informed steps to improve service delivery three areas: access to justice, efficiency, and quality. in the justice sector, also in the context of the The assessment uses a standardized methodology Government’s broader cooperation with the World to compare key features of the justice system across Bank Group (WBG) on the Governance Reform and countries and over time, allowing governments to Accountability Transformation (GREAT) Project track progress as reforms are implemented. The (P177478)3, which has several connection points three components of this methodology, outlined with the present study. in Annex A of this document, are applied uniformly to have comparable results; while envisioning 3. Total financing for this project is 20 million USD and is expected to be approved by the Board of Directors of the WBG on February 15, 2024. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 19 INTRODUCTION some flexibility of the data collection instrument over the past 15 years. These studies, mostly to adapt to country-specific contexts. The current commissioned by United Nations Development assessment in Liberia represents the first piloting Programme (UNDP), International Development of the methodology, which is planned on being Law Organization (IDLO), International deployed in two other African countries (Somalia Laboratory Accreditation Cooperation (ILAC), the and South Sudan). It aims to become a methodology Peacebuilding Data Project, and the United States for assessing justice systems globally, with a focus Institute of Peace (USIP), document a justice on fragile states and countries transitioning out of system that relies primarily on customary law and fragility. Opportunities for cross-country comparison practices, especially in the areas of family disputes, will be available once more JUPITER assessments land disputes, and petty crime. The insights from are carried out. these studies and their authors have provided a valuable basis for the implementation of the JUPITER offers several advantages over existing JUPITER methodology. methodologies developed by the World Bank and others. First, it only focuses on areas with an The team collected data in the field from local empirical link to outcomes as investigated in rigorous experts, users, judges, and government officials academic research published in top peer-reviewed between January and May 2023. Unsurprisingly, journals.4 The insights from this literature survey JUPITER also finds that customary justice is the are employed in the policy implications section to preferred venue of dispute resolution in large parts lead the reader toward practicable and research- of the country. The customary system is perceived backed options. Second, it captures information as the more efficient, fairer, and more accessible about both the law as well as its application in path to justice. The study brings an analytical look practice. This enables the identification of potential at the two systems, while providing a comparative implementation gaps between the law as written perspective from the users’ point of view. The and its actual usage, as well as gaps in the legal methodology acknowledges the benefits of both framework. Third, in pluralistic legal contexts in the formal and customary systems and proposes which the state-based legal system coexists with ways to improve users’ experience in both, building other forms of dispute resolution that fall outside on the strengths of each. of the scope of the formal justice system, JUPITER The study is organized as follows. Section 2 presents examines both. Fourth, JUPITER looks at the whole the main findings following the available empirical country (as opposed to other indicator sets that focus and historical evidence. Section 3 suggests some on the largest business city) and collects comparable policy choices available to decision makers in a data for some of the poorest and most challenging bid to improve justice delivery in Liberia. Section countries in the world. Existing indicators focus on 4 reflects on the implications of these findings high-income and high middle-income countries. for justice work more broadly in the region. An in- In these challenging environments, technical depth overview of the JUPITER methodology and assistance following JUPITER assessments can its application to Liberia are available on the website contribute to the standardization of administrative of the WBG’s Global Program on Justice and the Rule data and support the production and publication of of Law, alongside the questionnaire and the median qualitative information. coded answer of all respondents consulted by the The study has also benefited from a wealth of team in Liberia. These are also included in this data and analyses in several studies of the justice document as Annexes.  system in Liberia and the Africa region conducted 4. Bosio, E. 2023. A Survey of Judicial Effectiveness: The Last Quarter Century of Empirical Evidence. World Bank Group Policy Research Working Paper 10501. Washington, DC: World Bank. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 20 MAIN FINDINGS FROM DATA COLLECTION 2. MAIN FINDINGS FROM DATA COLLECTION Field work and empirical analysis yield four findings disputes and petty crimes. Third, the formal that shed light on the path toward the improvement system is perceived to be inaccessible and unfair, of justice services in Liberia. First, the customary significantly more so than the customary system. system is an integral part of the justice system, by Fourth, the courts are inefficient. Each of these law and in practice. Second, customary authorities findings is described below. preside over issues related to family law, land IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 21 MAIN FINDINGS FROM DATA COLLECTION 2.1. The customary system is an integral part of the justice system, by law and in practice In Liberia, two legal systems work alongside customary forum.7 Justice seekers resort to the each other: the formal common-law statutory customary system not only for its affordability and system and the customary system, based on the accessibility, but also for its perceived orientation unwritten practices of the country’s 16 different towards reconciliation, where parties are able to ethnic groups. Traditional chiefs and elders wield coexist after their disputes have been heard. jurisdiction over family law, property disputes and petty crimes in some urban areas and all a. Legal coexistence rural areas. Courts nominally cover these issues in all regions and enjoy exclusive jurisdiction over The division between the customary system and serious crimes, such as rape and murder.5 the formal courts has historical roots. After the establishment of Liberia as an independent nation Most Liberians rely on the customary system in 1847 and following the adoption of the country’s when seeking to settle their disputes, especially first Constitution the same year, the Liberian in rural areas. A large majority (69 percent of justice system was organized following the Anglo- Liberians) indicate trust in customary justice, and American common law tradition.8 Americans and 71.5 percent consider customary justice to be other freed slaves settled there and set up the effective and efficient in mediating cases.6 A study formal courts to serve their needs. Outside of the of 3,181 civil disputes showed that Liberians only coastal areas, however, the “Hinterland” was ruled chose to litigate in 41 percent of cases. And in the by customary authorities under the oversight of the 1,304 civil cases that they did choose to litigate, Ministry of Internal Affairs (MIA).9 only 95 were brought to a formal court, while the remaining 1,209 (or 93 percent) were taken to a 5. Articles 40 and 41 of the Hinterland Regulations, 2001, also reflected in the reports by infra Bonde and Williams, 2019, and IDLO, 2022. 6. LISGIS, PBO, UNDP and OHCHR. 2019. Public Perceptions of Liberian Justice and Security Institutions. Geneva: UNDP and OHCHR. Page 10. The UNDP and OHCHR commissioned this survey to assess levels of awareness of, satisfaction with, and trust and confidence in the different justice and security institutions, and recommend ways to improve them. The questionnaire was administered by the Liberia Institute of Statistics and Geo-Information Services (LISGIS), in close conjunction with the Peacebuilding Office of the United Nations (PBO). It collected responses from 3,504 households across every county and every district, encompassing 1,752 women and 1,752 men. 7. Isser, D., Stephen Lubkemann, and Saah N’Tow. 2009. Looking for justice: Liberian experiences with and perceptions of local justice options. Washington, DC: United States Institute of Peace. This survey was developed by the United States Institute of Peace (USIP) and collected data through more than 130 individuals’ interviews and more than 35 focus groups conducted primarily in Grand Gedeh, Lofa, and Nimba counties. The idea was to produce a robust empirical understanding on how justice is understood at the grassroots level throughout Liberia, including multiple perspectives and socio-geographic and demographic diversity. In addition to this data, the study used data collected by the Carter Center and its partner researchers from Oxford University’s Centre for the Study of African Economies (CSAE). Through 2008-9, the CSAE conducted a representative household survey of 2,500 households spread over 176 villages in five Liberian counties: Bong, Grand Gedeh, Lofa, Maryland, and Nimba. The selection of communities was random and based on standard probability-proportional-to-size sampling. Twelve to sixteen households were selected randomly within each community. Each household was administered a 60–90 minute interview that collected detailed information on the household’s experience with a range of crimes and conflicts, including the forums visited, the time taken and costs incurred, and details of the judgment, including reported subjective satisfaction. 8. Lubkemann, S., Deborah Isser, and Peter Chapman. 2011. “Neither State nor Custom Just Naked Power: The Consequences of Ideals-Orientated Rule of Law Policy-Making in Liberia.” Journal of Legal Pluralism and Unofficial Law 63: 73–110. Page 76. 9. Bonde, K., and Rhodri Williams. 2019. ILAC Rule of Law Assessment Report: Still Looking for Justice, Customary Law, the Courts and Access to Justice. Stockholm: International Legal Assistance Consortium. Page 16. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 22 MAIN FINDINGS FROM DATA COLLECTION Created in 1869, the MIA (formerly the “Interior progress are adopted and developed as an integral Department”) was established to function as “an part of the growing needs of the Liberian society.”13 arbiter in all purely native matters arising between In addition, Article 65 of the Constitution provides themselves and referred to the chief of [the] that the courts of the country “shall apply both department for settlement, which he [the Minister] statutory and customary laws in accordance with must settle with due regard to native customary the standards enacted by the Legislature.” law and native institutions, where not repugnant to The Local Government Act is another key piece the organic law of the state.”10 This administrative of legislation on the duality of the system, as it division was confirmed by the Executive Law of explicitly establishes that the customary system 1972 (Title 12 of the Liberian Code of Laws Revised) of justice is integrated into the local government that established the duties of the MIA, providing under the jurisdiction of the MIA.14 The Act also that the latter would manage “tribal affairs and all regulates the hierarchy of the customary system matters arising out of tribal relationships”11 and by establishing that the highest authority is the “[administer] the system of tribal courts.”12 County Superintendent (defined in Section 1.5 as The duality of the system is evident both in the law the administrative head and chief executive officer and in practice. The country’s legal framework, of a county), followed by the District Commissioner, more specifically, the Constitution of Liberia, the the Paramount Chiefs, Clan Chiefs and General Local Government Act of 2018 (Title 20 of the Town Chiefs.15 The President appoints the County Liberian Code of Laws Revised), and the Revised Superintendent and the District Commissioner with Rules and Regulations Governing the Hinterland of the consent of the Senate, while the next three Liberia issued in 2001 (“Hinterland Regulations”), ladders of Chiefdom leadership must be popularly regulate several dimensions of the customary elected by constitutional mandate.16 These elections, system. These are each discussed in turn below. however, have not been held since the start of the In practice, the customary system is especially civil war in 1989 and chiefs are being appointed by prominent in the regions farthest from the coast, the MIA on the recommendation of the elders and though it is used in nearly every region. The members of the chiefdoms, clans, and towns.17 geographical prominence of the customary system Finally, the Hinterland Regulations separate the is discussed in Section 2.1b. legal and administrative frameworks of “civilized” The Constitution of Liberia provides the highest (how the regulation refers to the settler population legal basis for the coexistence of the two of freed enslaved persons) and “native” Liberians systems by recognizing that the Republic shall (how the regulation refers to the indigenous “preserve, protect and promote positive Liberian population that was already settled in the country, culture, ensuring that traditional values which comprising different ethnic groups).18 The are compatible with public policy and national Hinterland Regulations were administered by the 10. Supreme Court of Liberia. 1907. Gray v Beverly [1907] LRSC 2; 1 LLR 500. 11. Legislature of the Republic of Liberia. 1972. Executive Law, Title 12. Subsection (b) of Section 25.2. 12. Subsection (l) of Section 25.2 of the Executive Law, 1972. 13. Article 5 of the Constitution of the Republic of Liberia. 14. Section 2.15h of the Local Government Act, 2018. 15. Sections 1.5 and 2.15h of the Local Government Act, 2018. 16. Section 2.13b of the Local Government Act, 2018, and Article 56 of the Constitution of the Republic of Liberia. 17. Section 2.15y of the Local Government Act, 2018, and supra Bonde and Williams, 2019, page 21. 16. Section 2 of the Amendments to the Hinterland Regulations differentiated between the legal framework of the population of freed enslaved persons that settled on the coastline, and the indigenous population that was already settled in the territory of the country, comprising different ethnic groups. This distinction is also highlighted in the OHCHR’s Human Rights Assessment Report on harmful traditional practices, evidencing that these regulations perpetuate disparities and use pejorative terms such as “uncivilized natives”. See UNMIL (UN Mission in Liberia) and OHCHR (Office of the High Commissioner for Human Rights). 2015. An Assessment of Human Rights Issues Emanating from Traditional Practices in Liberia. Geneva: OHCHR. Page 13. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 23 MAIN FINDINGS FROM DATA COLLECTION hierarchy of chiefs falling under the MIA – they falls within the scope of the executive branch, as were intended to be the legal system governing the opposed to the formal courts that fall withing the indigenous inhabitants of Liberia. In contrast, the purview of the judiciary. The Regulations however statutory system was intended to govern the settler establish that if justice seekers are not satisfied population in the coastal areas. with decisions adopted by customary authorities, they have the option to pursue their case in the The validity of the Hinterland Regulations is often formal courts.21 called into question, as they were repealed in 1956 by the passing of section 600 of the Aborigines In Liberia, decisions by the Supreme Court are Law. The Aborigines Law was in turn repealed an important element in the recognition of the in the 1973 revision of the Liberian Code of duality of the system by law. Since the early 20th Laws. However, modifications were made to the century, the Supreme Court has periodically Hinterland Regulations in 2001, suggesting that affirmed the role of customary justice.22 However, they may still be applicable law.19 numerous decisions have attempted to reduce the power of the customary system, often simply The Hinterland Regulations regulate important creating confusion. Such decisions deem that the aspects of the customary system, and its relationship executive branch cannot impose an enforceable with the formal one. First, Article 38(II) provides punishment, such as a fine.23 They have found a hierarchy of appeals among the customary that jurisdiction of customary authorities cannot authorities which are organized in a five-tiered be created by the consent of the parties, and have system, beginning with the lowest, the Clan Chiefs held that, despite clear local government law to Courts, followed by the Paramount Chiefs Courts, the contrary, proceedings held before a customary District Commissioner, County Superintendent, and avenue and reviewed by the county superintendent Provincial Court of Assize.20 Second, they provide cannot be appealed to the formal judiciary.24 In some insights into the jurisdiction of the customary this last case, however, a later decision offered leaders. Lastly, they establish MIA oversight over a potential resolution when it determined that the customary system, which implies that the latter 19. Corriveau-Bourque, A. 2010. Confusions and Palava: The Logic of Land Encroachment in Lofa County, Liberia. NRC Reports 2010. Oslo: Norwegian Refugee Council. See also World Bank. 2008. Liberia - Insecurity of Land Tenure, Land Law and Land Registration in Liberia. Report No. 46134-LR. Washington, DC: World Bank. 20. For more information on the hierarchy, see also supra Lubkemann et al, 2011, page 77. 21. IDLO and Swiss Peace Foundation. 2022. Report on Rule of Law and Access to Justice in Liberia. Rome: IDLO. Page 128. This study was commissioned by the Swedish Government through the IDLO. To allow for a holistic assessment, consideration was given to responding to three points of inquiry with respect to the rule of law in Liberia: (i) assessing what progress had been made over the past 15 years (2005-2020); (ii) ascertaining the main gaps, both on the demand and the supply side of justice; and (iii) identifying potential opportunities, which can have a transformative, inclusive and sustainable impact. To fully execute field engagement and elicit accurate information on these assessment areas, the IDLO relied on the use of a mixed methodology, with findings in the report mainly informed by a thorough desk review followed by Focus Group Discussions (FGDs), Key Informant Interviews (KIIs) and In-depth Interviews (IDIs) with critical justice and security sector stakeholders. The team completed over 232 KII and FGDs between May and June of 2022 in Liberia, reaching over 700 individual research respondents. 22. Supreme Court of Liberia. 1916. Boyah et al v Horace [1916] LRSC 12; 2 LLR 265. In this decision, the Supreme Court confirmed an Act that had established native courts from which decisions were appealable to a statutory Quarterly Court. The decision also carved out exclusive jurisdiction for the Quarterly Court for crimes such as murder, manslaughter, rape and the like. 23. Supreme Court of Liberia. 1974. Ayad v Dennis [1974] 23 LLR 165. The Supreme Court held that “[i]n conclusion, we reiterate that (…) the offense with which the petitioner is charged is a crime and cannot be tried by the officials of the Ministry of Commerce, regardless of whether they were, or were not, acting under the Administrative Procedure Act; that their acts in doing so, and in imposing a fine upon him, constituted a denial of due process and hence were unconstitutional, for only the courts can perform judicial functions; and that prohibition will lie to restrain the respondents from further proceeding by wrong rules”. 24. Supreme Court of Liberia. 1998. Nah v Topor et al [1998] LRSC 29; 39 LLR 144. In this case, the Supreme Court highlighted that it used this case at this time to strongly warn all judges of subordinate courts to strictly observe their respective jurisdiction over cases they handle because jurisdiction is conferred by law and not by consent of the parties. Also see Supreme Court of Liberia. 1935. Posum v Pardee [1935] LRSC 11; 4 LLR 299. In this decision, the Supreme Court emphasized that all executive officers who attempt to exercise judicial functions are committing usurpations on the constitutional powers of the courts; and any recognition or cognizance given to such officials in the exercise of judicial functions by judges of the courts of this Republic, or members of the legal profession, is in violation of their constitutional oath. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 24 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 1: Formal courts serve a high number of people in some counties Lofa Gbarpolu un pe Mo Ca t d an Bong Gr Nimba Bomi Margib do i rra se nt Mo Monrovia Grand Bassa Grand Gedeh Rivercess Inhabitants/1 court Sinoe <7.7K River Gee 7.7K - 13.9K 13.9K - 20K Gr an dK Mary 20K - 26.1K ru > 26.1K land Source: Judiciary of the Republic of Liberia, 2023, Court’s Case Activities Report, Third Quarter, A.D., 2022, and LISGIS, 2009, 2008 National Population and Housing Census Final Results. Note: Authors’ calculations on the ratio of courts per inhabitants in each county (inhabitants per court): Montserrado (39,937 inhabitants); Margibi (29,989 inhabitants); Bomi (28,040 inhabitants); Bong (27,790 inhabitants); Lofa (25,169 inhabitants); Grand Bassa (24,633 inhabitants); Nimba (22,001 inhabitants); Grand Cape Mount (21,179 inhabitants); Gbarpolu (13,898 inhabitants); Maryland (13,594 inhabitants); Grand Gedeh (12,526 inhabitants); Rivercess (10,216 inhabitants); River Gee (4,453 inhabitants); Sinoe (2,925 inhabitants); and Grand Kru (1,609 inhabitants). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 25 MAIN FINDINGS FROM DATA COLLECTION customary authorities were to be understood as inhabitants of Bong, Grand Gedeh, Lofa, Maryland, administrative tribunals, provided for under Article and Nimba counties were taken to a customary 65 of the Constitution, and therefore their rulings authority, whereas only 11 percent were taken can be appealed in higher-level formal courts.25 to a formal institution.27 Another study asked respondents whether they had been in contact with Magisterial Courts, Circuit Courts, and customary b. Geographical coexistence justice actors during the previous 12 months. While The duality of the system finds its foundation in the on average nearly 93 percent of respondents had country’s legal framework. Turning to the practice, not been in contact with the formal courts in the the scarcity of formal courts is manifested sharply previous year, nearly 42 percent had interactions in some regions of the country and seems to with the customary system during the same period. play a role in users’ preferences. The 2022 Third The interactions were more common in Bong, Lofa, Quarter Administrative Data on functioning courts, Nimba, and Sinoe counties (Figure 2).28 alongside the most recent census data, reveal a There is a high degree of geographical dispersion great imbalance across counties in the number of in the usage of customary dispute resolution; the people that formal courts serve.26 system is widely accepted in most communities, Figure 1 shows the number of formal courts per confirmed by 98.5 percent of respondents.29 inhabitant. Other than the coastal Bomi, Margibi, Customary justice is prevalent in the counties of and Montserrado counties that jointly house the Lofa, Sinoe and Nimba, followed by Bong, Grand capital city of Monrovia and its peri-urban area, Gedeh, and Grand Bassa (Figure 3). the counties with the least number of courts per Survey evidence suggests a strong preference inhabitant are Bong, Lofa, and Nimba, all located for using customary dispute resolution in these in the Hinterland where the customary system counties, with a high percentage of potential users is dominant. Despite a high number of courts per responding that if they had a dispute, they would capita, the customary system is also prominent not go to court because they prefer to use informal in Sinoe County (as evidenced in Figures 2 and justice actors or processes: Lofa (53 percent); 3), showing that factors other than geography Nimba (45 percent); Bong (39 percent); River Gee influence users’ preference for the customary (35 percent); Sinoe (34 percent); Grand Kru (31 system. percent); and Maryland (30 percent). Liberians interact more frequently with informal This section shows that the formal and customary justice actors, evidencing a pattern of geographical system coexist geographically throughout Liberia, dominance of customary justice over the court though the customary one is more prominent in the system that has been consistent across years as Hinterland. It further documents that the duality of confirmed by numerous previous studies. One such the system is evidenced both in law and in practice. study, for example, finds that 89 percent of disputes that were taken to a third party for resolution by the 25. Supreme Court of Liberia. 1982. Koryan v Korvayan [1982] LRSC 55; 30 LLR 246. In this decision, the Supreme Court held that all hearings by ministries and their officials are investigations by an administrative tribunal and may be subject to judicial review. 26. Judiciary of the Republic of Liberia. 2023. Court’s Case Activities Report, Third Quarter, A.D. 2022. Monrovia: Judiciary of the Republic of Liberia; and Liberia Institute of Statistics and Geo-Information Services (LISGIS). 2009. 2008 National Population and Housing Census Final Results. Monrovia: Government of Liberia. 27. Supra Isser et al, 2009, page 25. 28. Supra LISGIS et al, 2019, Table 7, page 30. 29. Supra LISGIS et al, 2019, Table 158, page 105. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 26 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 2: Liberians interact more frequently with informal justice actors 2.9 Lofa 1.5 66.8 15.0 Sinoe 1.0 60 16.4 Nimba 3.6 58.1 16.4 Bong 4.2 56.1 21.1 Grand Gedeh 3.8 54.9 16.5 Grand Bassa 8.7 53.5 8.5 Rivercess 12.7 46.5 4.8 Bomi 2.4 44.0 16.7 Grand Kru 9.3 37.0 Grand 3.2 4.8 Cape Mount 36.8 8.1 Margibi 7.1 35.5 2.4 Gbarpolu 3.6 28.6 8.3 Magisterial Courts River Gee 0.0 21.7 Circuit Courts 4.8 Informal Justice Maryland 2.4 Actors 19.2 5.5 Montserrado 3.2 14.3 0 20 40 60 80 Participants (%) Source: LISGIS et al, 2019, Tables 6 and 7. Note: Authors’ calculations on the percentage of participants in each county that answered “Yes” to the question “Have you been in contact with any of the following justice and security institutions during the last 12 months?” in the following categories: “Magisterial Courts,” “Circuit Courts,” and “Informal justice actors.” IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 27 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 3: Liberians’ interaction with informal justice actors is prevalent in most counties Lofa Gbarpolu un pe Mo Ca t d an Bong Gr Nimba Bomi Margib do i rra se nt Mo Monrovia Grand Bassa Grand Gedeh Rivercess Contact with IJA (%) Sinoe <25 River Gee 25 - 36 36 - 47 Gr an dK Mary 47 - 58 ru > 58 la nd Source: LISGIS et al, 2019, Table 7. Note: Authors’ map based on the percentage of participants in every county that answered “Yes” to the question, “Have you been in contact with any of the following justice and security institutions during the last 12 months?” in the category “Informal justice actors”: Lofa (66.8 percent); Sinoe (60 percent); Nimba (58.1 percent); Bong (56.1 percent); Grand Gedeh (54.9 percent); Grand Bassa (53.5 percent); Rivercess (46.5 percent); Bomi (44 percent); Grand Kru (37 percent); Grand Cape Mount (36.8 percent); Margibi (35.5 percent); Gbarpolu (28.6 percent); River Gee (21.7 percent), Maryland (19.2 percent); and Montserrado (14.3 percent). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 28 MAIN FINDINGS FROM DATA COLLECTION 2.2. Customary authorities preside over issues related to family law, land disputes, and petty crimes a. Jurisdictional coexistence The Supreme Court exercises final appellate jurisdiction in all cases, except for cases involving The jurisdiction of the formal courts of Liberia is ambassadors, ministers, or cases in which a clear and regulated by law. The country’s highest foreign country is a party, in which the Court has judicial body is the Supreme Court, composed of original jurisdiction. It also has the authority to a Chief Justice and four Associate Justices. The exercise constitutional review.32 Circuit Courts second tier is represented by the Circuit Courts. exercise general jurisdiction, including jurisdiction There are 16 Circuit Courts (one per each of Liberia’s in admiralty cases, and over all cases for which 15 counties, except for Montserrado County, which another court is not expressly given jurisdiction has two, the First and Sixth Circuit Courts). There by constitutional or statutory provision, provided are three categories of Circuit judges: (i) resident that in Montserrado County, the Circuit Courts in judges, who are appointed and commissioned the First Judicial Circuit have jurisdiction to try by the President with the consent of the Senate only criminal cases and the Circuit Court in the to preside over a particular circuit; (ii) assigned Sixth Judicial Circuit has jurisdiction to try all cases judges, who are designated to a circuit to serve for other than criminal cases.33 In other counties, the a term of court; and (iii) relieving judges, who are Circuit Court hears both civil and criminal cases. commissioned to replace assigned judges due to Magistrate Courts have limited jurisdiction over unforeseen circumstances for which the assigned applicable matters and decide cases without a jury. is unable to function.30 The civil and criminal jurisdiction of the Magistrate Below the Circuit Courts are the Magistrate Courts. Courts is limited to minor cases, as established in Before the civil war, the formal system also included Section 7.3 of the Judiciary Law of 1972 (Title 17 the Justices of the Peace. These could be found in of the Liberian Code of Laws Revised). Specialized townships and smaller settlements, and like the courts have concurrent jurisdiction with Circuit magistrate courts, they had no jury and enjoyed Courts and were recently introduced to fast-track only limited jurisdiction. They existed at the certain kinds of cases classified on their subject lowermost rung of the hierarchy of the institutional matter. These include, for example, the Debt Court, judicial system, which presided over minor matters. Probate Court, Tax Court, Traffic Court, Juvenile Minor matters refer to matters where the parties Court, and Commercial Court. do not need to be represented by lawyers and Staffing of the courts is an issue, with more than can represent themselves. However, these courts 17 percent of courts around the country not were abolished after having gained a reputation of functioning. The Judiciary Branch consists of 217 litigiousness, corruption, and lack of accountability, functional courts, which include the Supreme as many of the Justices of Peace did not go through Court, 16 Circuit Courts, 7 Criminal Courts, 26 any formal judicial training.31 30. Sections 3.6 and 3.7 of the Judiciary Law, 1972. 31. In the case Tamba et al. v RL [2005] LRSC 39, the Government of Liberia terminated the performance of judicial functions by persons in these categories. 32. Article 66 of the Constitution of the Republic of Liberia. 33. Section 3.2. of the Judiciary Law, 1972. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 29 MAIN FINDINGS FROM DATA COLLECTION >>> Table 1: The formal court system in numbers Criminal Specialized Circuit Magisterial Functional County Courts Circuit Courts Courts Courts (%) Montserrado 5 6 2 15 100% Grand Bassa 0 0 1 8 75% Sinoe 0 5 1 29 78% Maryland 0 1 1 8 67% Grand Cape Mount 0 0 1 5 67% Grand Gedeh 0 0 1 9 71% Nimba 1 1 1 18 91% Bong 1 1 1 9 86% Lofa 0 1 1 9 92% Bomi 0 0 1 2 50% Grand Kru 0 6 1 29 90% Margibi 0 0 1 6 78% Rivercess 0 2 1 4 100% River Gee 0 3 1 11 88% Gbarpolu 0 0 1 5 60% Total 7 26 16 167 83% Source: Judiciary of the Republic of Liberia, 2023, Court’s Case Activities Report, Third Quarter, A.D. 2022. Specialized Courts, and 167 Magistrate Courts. The Hinterland Regulations establish the There are 45 non-functional courts, of which are 28 jurisdiction of two of these tiers, the Paramount Specialized Courts and 17 Magisterial Courts. The Chiefs, and the Clan Chiefs. Article 40 establishes total number of courts within the Judicial Function that the Paramount Chief shall have jurisdiction to is 262 (Table 1). hear and decide:  Civil cases arising within a tribe or chiefdom in Traditional chiefs and elders in the customary which the amount or subject matter is above system enjoy jurisdiction over family law, property $25 and does not exceed in value $100. disputes, and petty crimes in some urban areas and all rural areas. The customary justice system has  Criminal cases subject to punishment by a fine four tiers: Clan Chiefs, Paramount Chiefs, District not to exceed $10 or imprisonment for a period Commissioners, and County Superintendents not to exceed three months. (Figure 4). While only four tiers are regulated by  Appeals from the court of the Clan Chief. law, three more exist in practice: Zonal Chiefs, Town  All cases “arising between strangers and Chiefs, and District Superintendents. Hierarchically, members of the tribe except they are civilized Zonal Chiefs and Town Chiefs are below the Clan people”34, unless the Paramount Chief is a Chiefs, while the District Superintendents are right party to the suit when it shall be tried in the below the County Superintendents. 34. The term “civilized people” is used in the Hinterland Regulations to refer to the settler population as opposed to the “native” population of the country. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 30 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 4: Hierarchy of customary justice actors by law COUNTY SUPERINTENDENTS Appointed by the President with the consent of the Senate. DISTRICT COMMISIONERS PARAMOUNT CHIEFS Popularly elected by constitutional mandate. Provisionally appointed by the MIA. CLAN CHIEFS Source: Hinterland Regulations, 2001; and Local Government Act, 2018. court of the District Commissioner. In other a period not to exceed one month. The jurisdiction words, cases between members of a specific of the other traditional/customary actors is not community and community outsiders are tried regulated. by the Paramount Chief, unless (i) a person These articles (40 and 41) represent the legal from the settler population or (ii) the Paramount underpinning for the customary system’s jurisdiction Chief are parties to the case. over family law and petty crimes. Further, Articles Article 41 establishes that the Clan Chief has 66 and 67 of the Hinterland Regulations regulate jurisdiction to hear and decide: (1) civil cases the customary system’s jurisdiction over land arising within the clan in which the amount or disputes, for example by establishing that the subject matter does not exceed in value $25; (2) respective tribal authority’s approval is required cases arising within the clan relating to personal when carrying out certain activities on the land. status, marriage, and divorce under native law; In addition, Articles 35 and 36 of the Land Rights and (3) misdemeanors subject to punishment for Law of 2018 provide that the management of IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 31 MAIN FINDINGS FROM DATA COLLECTION customary lands will be carried out through broader set of social interests than those of the Community Land Development and Management immediate parties, in particular those of kinship Committee(s) (“CLDMC”), which has the power to groups and the broader community; and (4) a strong “allocate, view and render decisions on complaints effort to bring the parties together to a consensus arising from the allocation and use of Customary resolution.37 Customary mechanisms tend to arrive Land, including matters relating to the allocation of to a decision based on reconciliation, and the Residential Areas.”35 These committees must have enforcement of customary decisions is enabled equal representation of men, women and youths, by community acceptance.38 On occasion, the who have to be democratically elected. Chiefs uncodified nature of the rules governing customary of the community are ex officio members of the justice – alongside with the uncertainty on the CLDMC.36 In terms of applicable rules, customary validity of the Hinterland Regulations – creates authorities generally benefit from the trust and clashes with the formal system, where judges are respect of the community and apply a set of widely not knowledgeable about customary law.39 observed traditions and customs. The ambiguity around the jurisdiction of the formal Customary authorities decide based on traditions and customary systems generates the intervention that vary from tribe to tribe and, as a result, are of the latter in matters outside its jurisdiction, uncodified. Despite many specific variations, further extending its role in delivering justice.40 For customary justice generally adheres to a broad example, even though traditional leaders are aware set of shared principles and processes. These that they should only deal with minor criminal include (1) an emphasis on revealing the truth in cases and refer serious crimes to the formal courts, an expansive way that includes the root causes there is often ambiguity on how to interpret the and additional social factors that inform a dispute; degree of severity of the crimes that are brought (2) a primary emphasis on social reconciliation before them.41 of the aggrieved parties, which may include compensation or repair of the harm, an apology, and a reconciliation ritual; (3) consideration of a 35. Subsection 5 of Article 36 of the Land Rights Law, 2018. 36. Subsection 6 of Article 36 of the Land Rights Law, 2018. 37. LWG (Legal Working Group). 2009. Analysis of the Dual Legal System - Findings of the Legal Working Group as adopted on 10 December 2009. Monrovia: Legal Working Group (LWG), Ministry of Justice of Liberia, supported by UNMIL Legal and Judicial System Support Division, United States Institute for Peace (USIP), George Washington University, and the Carter Center. 35. Supra Bonde and Williams, 2019, page 17. 36. Rawls, A. C. 2011. “Policy Proposals for Justice Reform in Liberia: Opportunities Under the Current Legal Framework to Expand Access to Justice.” Traditional Justice: Practitioners’ Perspectives’ Working Papers Series. Paper No. 2. Rome: IDLO. 37. Supra IDLO, 2022, page 65. 38. Supra Bonde and Williams, 2019, page 41. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 32 MAIN FINDINGS FROM DATA COLLECTION b. Blurred lines between formal and customary Table 2 details the relative usage of the formal and justice customary systems in resolving various types of civil disputes. In all cases, the customary system The disputed validity of the Hinterland Regulations, is used more often than the formal courts. In alongside a de facto broader jurisdiction of the bribery cases, the ratio of this usage is 2:1 in favor customary system, has led to considerable of customary justice. This ratio increases for other ambiguity on the demarcation line between the types of cases: for property disputes it is 4:1; for formal and customary system.42 Additionally, while land disputes 7.5:1; for divorce 12:1; and for other the state policy forbidding the customary system family matters 40:1. from handling matters of serious crimes seems to be well known among the chiefs, many chiefs and The ratios are more balanced in some criminal rural Liberians alike generally believe that chiefs dispute cases (Table 3). In murder and rape/sexual would better handle many kinds of serious crimes abuse cases, the formal and customary justice are than the formal courts.43 The lack of an official used equally. However, for property destruction the definition of “serious crime” further contributes ratio is 4.5:1; for theft the ratio is 6:1; for assault to this ambiguity. Major theft is one disputed area, it is 15:1; while for domestic violence it is 50:1. where customary leaders have asserted more This evidence illustrates the strong perception of jurisdiction. Rape and murder are always named users that the customary system is better equipped as examples of offenses off limits for traditional to handle their disputes. Users approach the authorities.44 However, there is no regulated customary system even in cases where the law is process of what should happen with these cases in clear that the formal system should take precedent. practice, and customary authorities often deal with them at the request of claimants. In summary, by law the formal and customary systems have overlapping jurisdiction in the Indeed, chiefs are frequently implored by members geographical areas where they compete, i.e., they of their community to consider cases that they are are potential substitutes opening the opportunity legally forbidden from taking. Many chiefs admit for forum shopping. In practice, the two systems that in practice, they do so, provided both parties are complements where few users favor the formal request it. There is also evidence that once cases system in certain types of disputes, while many are in the formal court system, chiefs and elders users favor the customary one. This finding has may request, or even demand, that the case be one substantial implication: that the improvement referred to them for out-of-court settlement. in the access, efficiency and perceived fairness of Such requests are often honored. Evidence also formal justice does not automatically mean that points to numerous instances where the police or more Liberians will resort to its services. Such magistrates—on their own initiative—refer such improvements must exceed the trust built in the cases to the customary authorities for resolution. customary system before any significant switch Ordinary Liberians often consider the formal system towards formal justice is witnessed. ill-equipped to deal with this type of cases.45 42. Supra Isser et al, 2009. 43. Supra Isser et al, 2009. 44. Supra Isser et al, 2009, page 5; Bonde and Williams, 2019, page 7; and IDLO, 2022, page 117. 45. Supra IDLO, 2022, page 126. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 33 MAIN FINDINGS FROM DATA COLLECTION >>> Table 2: Forum usage for civil disputes Number Percent of all cases taken to Dispute of Cases No forum Informal forum Formal forum Bribery/Corruption 14 57 29 14 Debt dispute 1,497 67 31 2 Family/Marital dispute 788 58 41 1 Child custody 21 62 38 0 Child/Wife neglect 181 59 41 0 Divorce/Separation 131 34 61 5 Other 455 64 35 1 Labor dispute 157 65 34 1 Land dispute 430 32 60 8 Property dispute 68 53 37 10 Witchcraft 227 56 41 4 Total 3,181 59 38 3 Source: Isser et al, 2009. >>> Table 3: Forum usage for criminal disputes Number Percent of all cases taken to Crime of Cases No forum Informal forum Formal forum Assault 600 52 44 3 Domestic violence 974 53 46 1 Murder 97 53 23 25 Property destruction 548 78 18 4 Rape/Sexual abuse 113 50 28 21 Theft 1,420 78 19 3 Other crime 303 55 42 3 Total 1,877 53 45 2 Source: Isser et al, 2009. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 34 MAIN FINDINGS FROM DATA COLLECTION 2.3 The formal system is perceived to be inaccessible and unfair, significantly more so than the customary system a. Trust and satisfaction of decisions. Liberians are overwhelmingly more satisfied with customary justice actors within these Users’ level of satisfaction with the courts, the categories (Figure 7). fairness and impartiality of the judges, and the quality of judicial decisions is lower than their These perceptions on the formal justice system satisfaction with the customary system (Figures also influence how Liberians see judges, as 5 and 6). The customary system is closer, more reflected in their perspective on their experience familiar, less expensive and – above all – enjoys the and qualifications, communication skills, and how presumption of just process and outcomes.46 they protect and uphold human rights. In contrast, informal justice actors perform significantly better These levels of dissatisfaction and distrust toward in these categories, evidencing people’s trust in the judiciary are also reflected in how users perceive their abilities and capacities in solving conflicts the way that people are treated by the court system, (Figure 8). how cases are handled and the level of fairness >>> Figure 5: Liberians trust the customary system more than the courts 1500 1262 1146 1200 Number of participants 925 961 900 776 674 528 600 345 223 300 168 0 A lot 2 3 4 Not at all Rating Scale Formal courts Informal justice actors Source: LISGIS et al, 2019, Tables 162 and 166. Note: Participants were asked to what extent they trusted the courts and informal justice actors from 1 (“I trust these actors a lot”) and 5 (“I do not trust these actors at all”). 46. Supra LISGIS et al, 2019, page 8. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 35 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 6: Customary justice is perceived as fairer and impartial 2016 2000 1600 Number of participants 1313 1134 1200 800 661 671 582 400 258 182 138 53 0 Very satisfied 2 3 4 Very dissatisfied Rating Scale Formal courts Informal justice actors Source: LISGIS et al, 2019, Tables 33 and 120. Note: Participants were asked to what extent they were satisfied with the fairness and impartiality of judges and informal justice actors from “Very Satisfied” to “Very Dissatisfied”. >>> Figure 7: Liberians are more satisfied with informal justice actors 100% 77.9% 77.7% 70.7% 75% Participants (%) 50% 41.9% 42.3% 36% 25% 0 Treatment of people Handling of cases Fairness of decision Formal courts Informal justice actors Source: LISGIS et al, 2019, Tables 36 and 113, 28 and 111, 39 and 116, respectively. Note: Authors’ calculations on the percentage of participants that answered, “Very satisfied” and “Satisfied” when inquired about their level of satisfaction with the way that formal courts/informal justice actors treat people, handle cases, and with the fairness of their decisions. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 36 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 8: Liberians are more satisfied with informal justice actors’ skills and qualifications 100% 91.6% 81.1% 81% 75% Participants (%) 52% 47% 50.7% 50% 25% 0 Protect and uphold human rights Experience and qualifications Communication skills Formal courts Informal justice actors Source: LISGIS et al, 2019, Tables 35 and 114, 31 and 118, 32 and 119, respectively. Note: Authors’ calculations on the percentage of participants that answered, “Very satisfied” and “Satisfied” when inquired about their level of satisfaction with the way that judges/informal justice actors protect and uphold human rights, their experience and qualifications, and their communication skills. Trust in the customary system was especially high in displayed (78.3 percent); how they deal with issues counties where the customary system is prominent involving women and children (80.2 percent); their (88 percent in Nimba, 87 percent in Bong, and 83 fairness and impartiality (74.1 percent); and their percent in Lofa).47 The highest trust and confidence effectiveness and efficiency (79 percent).49 Several are in the system’s upholding of principles of factors contribute to these perceptions. Access to fairness: 93.2 percent of respondents held that the courts is an issue that is frequently raised by the system does not neglect those principles.48 users, and that leads to the de facto exclusion of Following the same tendency, customary justice most Liberians from the court system (Figure 9).50 actors were rated satisfactorily across various This has consistently been the case over at least other categories, including their accessibility (80.1 the last decade, as it is a consistent trend across percent); responding to requests for assistance datasets from different years. (80.8 percent); the level of integrity that they 47. Supra LISGIS et al, 2019, Table 166, page 109. 48. Supra LISGIS et al, 2019, Table 150, page 101. 49. Supra LISGIS et al, 2019, Tables 109, 110, 115, 117, 120 and 121. 50. Vinck, P., Phuong N. Pham, and Tino Kreutzer. 2011. Talking Peace: A Population-Based Survey on Attitudes about Security, Dispute Resolution, and Post-Conflict Reconstruction in Liberia. California: Human Rights Center, University of California, Berkeley. Page 63. This study was undertaken by the Human Rights Center of the University of California, Berkeley to contribute to a deeper understanding of: (1) the population’s priorities for peacebuilding; (2) Liberians’ perceptions of their post-war security; and (3) existing disputes and conflict resolution mechanisms. The study was based on extensive consultations with local organizations, interviews with key informants, and a nationwide survey of 4,501 respondents randomly selected in each of the counties to represent the views of the adult population in Liberia. The survey was implemented in November and December of 2010. Results are representative of the population at the county level and for the Greater Monrovia district. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 37 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 9: Accessing the customary system is easier than accessing the courts 78% 80% 60% 45% Participants (%) 40% 28% 20% 16% 12% 5% 7% 4% 4% 1% 0 Village Chief Formal Court Rating scale Easy Somewhat easy Average Not easy Not easy at all Source: Vinck et al, 2011, University of California, Berkeley. Note: Displays the percentage of participants that describe their access to formal courts and village chief courts as “Easy,” “Somewhat easy,” “Average,” “Not easy,” and “Not easy at all.” In the JUPITER questionnaire, access was tested Geographically, courts are more accessible in terms of geographical access, gender-based to people in urban regions than those in rural access, access for persons with disabilities, access ones.51 This is compatible with the finding that the for people with linguistic barriers, and access for customary system is prominent in rural areas (see people from different socio-economic classes. The Section 2.1b). Users interviewed by the team had survey finds that the law provides equal access but, to travel an average of 60 minutes to reach the in practice, difficulties remain across all categories. nearest court, with peaks of 150 and 180 minutes. This finding was confirmed during interviews with The longest travel times (180 minutes) were the Human Rights Section of the Ministry of Justice reported by users interviewed in the counties of (MOJ). Grand Bassa and Grand Cape Mount. 51. JUPITER Data-Collection Tool, question 13. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 38 MAIN FINDINGS FROM DATA COLLECTION b. Access to justice for women in employment (Sections 2.8, 14.8, and 14.10 of the Decent Work Act of 2015)56. When presenting By law, women have the same right as men to file respondents with this hypothetical case,57 however, a claim in formal courts and their testimony carries it was evidenced that the practice lags due to the the same evidentiary weight. In practice, however, stigma that women face in reporting such conduct lawyers mentioned that “women are sometimes and the fear they experience that their jobs will be afraid to testify in courts compared to men,” that compromised.58 The Government of Liberia has “women are shy to explain things the way a man made progress in guaranteeing equality between will do,” and that “other family commitments may men and women through legislation and policies, keep them from being able to spend the day in which has also raised the profile of these offenses court.”52 This indicates that gender inequalities are in the public eye. As a result, several practicing entrenched in society, leading even government lawyers have reported that women’s advocacy officials to conclude that the system is “a lot more groups now frequently get involved in sexual accessible to men than women.”53 Government harassment cases, empowering women to seek officials spoke of the stigma that women encounter redress in court more frequently and pressuring when filing claims, starting with their own family the judiciary to dispose of these cases fairly and often pushing them not to file claims, especially efficiently.59 against their husbands. This finding is consistent with studies focusing This finding is in line with previous studies showing exclusively on sexual and gender-based violence that women, especially those living in rural areas, (SGBV), finding that SGBV prevention and response are more often confronted with barriers in accessing in Liberia face multiple challenges.60 At the policy the justice system, as formal justice institutions level, the necessary policy instruments have been are expensive and apply procedures that many developed, but adherence to the dictates of the Liberian women consider unfamiliar.54 Higher rates instruments is lacking. Moreover, some institutions of illiteracy and lower access to the already limited created by the policies are yet to be fully equipped legal aid services further hinder women’s access to to perform their roles. The prominence of prejudice the formal courts.55 against women in society, and the exclusion of The team consulted the legal framework and women from decision-making, provide an enabling its practical application in the hypothetical case environment for high levels of violence against of a woman seeking civil remedies for sexual women. Women and girls who suffer from SGBV harassment in the workplace. The legal framework are mostly poor, and lack financial support to seek establishes civil remedies for sexual harassment justice. 52. Interviews with lawyers in Montserrado County, March-April 2023. 53. Interview with the Human Rights Section of the Ministry of Justice, April 11, 2023. 54. Supra Isser et al, 2009, page 97; and Bonde and Williams, 2019, page 27. 55. As reported by the U.S. Department of State and ILAC. See United States Department of State. 2023. Liberia 2022 Human Rights Report. Washington, DC: United States Department of State, page 18; and supra Bonde and Williams, 2019, page 32. 56. The Decent Work Act of 2015 repeals the Labor Law of 2000 (Title 18 of the Liberian Code of Laws Revised). 57. Respondents were asked how likely women were to bring a civil case for sexual harassment against their employer and how likely they were to win if harassment was proven beyond reasonable doubt (JUPITER Data-Collection Tool, questions 18 and 19). 58. Interviews with lawyers in Montserrado County, March-April 2023; and interview with the Human Rights Section of the Ministry of Justice, April 11, 2023. 59. Interviews with lawyers in Montserrado County, March-April 2023. 60. Koker, S.B. 2020. Assessment of the Existing Initial Services Available for Sexual and Gender-Based Violence Cases. Geneva: UN Women and PBO. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 39 MAIN FINDINGS FROM DATA COLLECTION c. Access to justice for the poor Overall, a person’s capacity to mobilize forms of social and political power in order to influence court Access to the courts for the poor people was also officials seems to play an important role in judicial benchmarked by JUPITER, and issues extend outcomes.62 One of the judges gave an example beyond women. Court users and practicing lawyers of how this happens in practice: “Sometimes you overwhelmingly pointed out that “money and have a case before you, and the first thing you get class are a factor within the courts in Liberia;” “the is a call from a politician who is directing you how status of people in society determines how they are to proceed with the case in the way the politician treated within the Court;” “sometimes when people wants, which is not consistent with the law. You of higher socio-economic class enter the Court, the have no choice because there is no job security, you Judge recognizes them and acts accordingly;” and could get fired.”63 Figure 10 presents a summary “ordinary people of low socio-economic status are of findings on what users perceived as the biggest not given the same level of courtesy as people of obstacles in interacting with the judiciary, listing higher socio-economic status.”61 >>> Figure 10: Weaknesses in Formal Courts Influence of social and political connections 12% Unprofessional behavior and misconduct 14% Delays 48% High cost and money influence 57% 0% 10% 20% 30% 40% 50% 60% Participant (%) Source: Interviews with court users, February-April 2023. Note: Authors’ calculations based on participant’s answers to the question “What has been the most frustrating part of your interaction with the courts?” choosing between four categories: “Influence of social and political connections,” “Unprofessional behavior and misconduct,” “Delays,” and “High cost and money influence.” The category labeled “High cost and money influence” refers to official and unofficial fees that are paid to the court to move the process along. Respondents could choose between one or more of the options presented. 61. Interviews with lawyers at the Temple of Justice in Monrovia, at the Omega Magistrate Court and at the Paynesville Magistrate Court, February-March 2023. 62. Supra Lubkemann et al, 2011, page 90. 63. Interview with a Judge from the Magistrate Court of Monrovia, March 29, 2023. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 40 MAIN FINDINGS FROM DATA COLLECTION the influence of social and political connections Interviews with local experts revealed that this as one of the four main troubling areas. High cost permission is almost never granted in practice. and money influence are measured together as In 2019, the Government of Liberia adopted a they both represent an expense from a user’s national legal aid policy to address this legal perspective and must be planned for as such. vacuum, from which a draft Legal Aid Bill has been The inaccessibility of the courts for poor persons drafted. The Bill defines key concepts, including results in a de facto exclusion of over two-thirds legal aid, legal advice, and legal representation, of Liberians from the formal justice system.64 The governs all matters related to access to justice situation is exacerbated by the fact that there is and legal aid, and proposes the establishment no government-funded legal aid in civil cases. of a public body – the “Liberia National Legal Aid Legal aid is defined here as the free provision of Service” – governed by the National Legal Aid assistance to people who are unable to afford legal Board. As of May 2023, the draft Legal Aid Bill was representation and can include representation with the National Legislature, though its chances of in court, legal advice before the proceedings, approval before the October 2023 elections were payment of court fees, payment of technical deemed low by all the stakeholders interviewed by experts, enforcement fees and even travel costs. the team.65 The only legal basis for the provision of free In practice, legal aid in civil cases does not exist. legal services to indigent people in civil cases is In criminal cases, these services are occasionally contained in Chapter 65 of the Civil Procedure supplied by public defenders, a few civil society Law of 1972 (Title 1 of the Liberian Code of Laws actors – for example, the Carter Center, Her Voice Revised), which regulates the process of obtaining Liberia, and Serving Humanity for Education and permission from the court to proceed as an Development – and the LNBA.66 The Constitution of indigent person. According to this process, upon LNBA requires the Bar to have a Legal Aid Committee the motion of any person, the court may grant to promote free legal services for indigent litigants permission to proceed as an indigent person. The who offer convincing evidence that they are unable moving party files an affidavit setting forth the to obtain legal representation.67 From 2017–2020, amount and sources of his income and listing his LNBA organized legal aid clinics at five circuit courts property with its value; that he is unable to pay the in five counties: Bomi, Bong, Grand Bassa, Margibi, costs, fees, and expenses necessary to prosecute and Montserrado. The LNBA continues to provide or defend the action or to maintain or respond to legal aid services in several counties with support the appeal; the nature of the action; sufficient and funding from the Carter Center but continues other facts so that the merits of his contentions can to face challenges including logistics (also related be ascertained; and whether any other person is to travel), lack of resources, and a weak culture for beneficially interested in any recovery sought and, pro bono work among lawyers.68 The Association of if so, whether every such person is unable to pay Female Lawyers of Liberia (AFELL) provides legal such costs, fees, and expenses. If the court grants aid to women, but is overwhelmed with cases and the motion, in its order it will assign an attorney. faces budget constraints. 64. Supra IDLO, 2022, page 7. 65. In his 6th State of the Nation Address, President George Weah confirmed that lawmakers are yet to pass the Legal Aid Act of 2022. 66. In 2022, Public Defenders took on 3,303 cases and disposed of 2,103, while from October 2020 to September 2021, Public Defenders took on 2,141 cases and disposed of 1,746 of them, all for free, all with Judiciary legal aid support to indigents. See Annual Report, October 1, 2020 – September 30, 2021; Annual Report, October 1, 2021 – September 30, 2022; Annual Report, January–December 2022; and Courts’ Case Activities Report, Third Quarter, A.D. 2022. 67. Section VI, Subsection D of the Constitution of the LNBA, 1983. 68. Interview with members of LNBA, January 2023. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 41 MAIN FINDINGS FROM DATA COLLECTION d. Access to justice for people with linguistic To ensure representation for persons with barriers intellectual disabilities in legal proceedings, Section 16.100 (1) of the Civil Procedure Law mandates Lack of budget and human resources are often that the court is responsible for providing adequate mentioned as the top reasons why services, counsel to any allegedly “mentally disabled” or including legal aid and SGBV-related services, “incompetent” party involved in a hearing. The court cannot be offered. That also applies to is also required to inform the party of their right to interpretation services for non-native speakers and counsel, inquire about their preferences regarding people with linguistic barriers. The law regulates the appointment or summoning of counsel, and take the other aspects of access to justice examined necessary actions accordingly. If the party is found above. For example, Sections 13.8 and 21.4 of the to be indigent, the court must appoint the County Civil Procedure Law regulate the appointment of Defense Counsel, if available. In cases where the interpreters and translators whenever an action County Defense Counsel is unavailable, the court is is between parties, one or more of whom does obliged to appoint a licensed counselor at law to not understand or speak English, or whenever a ensure fair and just representation for persons with witness who does not speak the language needs to disabilities within the Liberian legal system. be examined. Although these provisions allow for persons In practice, however, 81 percent of experts declared “incompetent” or with “intellectual consulted by the team explained that, in their disabilities” to be represented by counsel experience, there are no such services in place in or representative in court proceedings, it is the courts. If parties need interpretation, experts important to note that the right to legal capacity agree that they would have to pay for it themselves. encompasses further guarantees, such as the When asked about how likely people are to receive power to engage in transactions and create, modify, such services free of charge, 62 percent of experts or end legal relationships.71 Pursuant to Article 12 said it was “Unlikely” (meaning it would happen of the Convention on the Rights of Persons with in less than 25 percent of cases). The answer was Disabilities and its interpretation by the treaty’s unchanged when experts were asked whether Monitoring Committee, governments have the indigent people were likely to receive such services. obligation to transition from the substitute Overall, experts concluded that the system was a decision-making paradigm – which encompasses lot more accessible for people without linguistic guardianship, conservatorship, and mental health barriers.69 laws that permit forced treatment – to one that is based on supported decision-making. This e. Access to justice for people with disabilities support in the exercise of legal capacity must respect the rights, will, and preferences of persons JUPITER also assessed the accessibility of the with disabilities and should never amount to the courts, by law and in practice, for people with imposition of a substitute decision-maker against disabilities. By law, Article 11 of the Constitution their will. of Liberia provides for the equal treatment of all persons. The Civil Procedure Law provides that However, in practice, most courts in Liberia are persons declared “incompetent” can sue or be not accessibility-friendly and the lack of any court- sued through a representative.70 level guidelines or implementation of the word of 69. Interviews with lawyers in Montserrado County, March-April 2023. 70. Legislature of the Republic of Liberia. 1972. Civil Procedure Law, Title 1. Section 5.13. 71. United Nations, Committee on the Rights of Persons with Disabilities. 2014. “General Comment No. 1.” Committee on the Rights of Persons with Disabilities, Eleventh Session. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 42 MAIN FINDINGS FROM DATA COLLECTION the law has led to no standard support for persons also has general information on the organization with disabilities. Seventy-five percent of experts of the court system – for example, court hierarchy, consulted by the team agreed that the level of court location, court hours and days of operation, implementation of policies to accommodate and court fees – but no information on how to file persons with disabilities in courts was “Very claims on common types of cases, legal aid, or on Low” (less than 25 percent of courts). These how to self-represent, making it more difficult for policies should include, for instance, wheelchair people to file a claim without the assistance of a accessibility, washroom accessibility, alternative lawyer, even when the claim is small. seating arrangements in courtrooms, and sign LiberLII is a searchable repository of opinions language interpretation. The lack of accessible of the Supreme Court, as well as codified and public transport, along with the long distances to uncodified legislation, agency regulations, courts, are other major barriers to accessing courts concession agreements, court rules, treaties, and for people with disabilities.72 This leads government an array of Liberian law resources. It started in officials to conclude that “people with disabilities 2010 at the initiative of the MOJ, with funding from are very disadvantaged” and the chances of them USAID, as a collaboration among the American getting equal treatment are “very slim.”73 Bar Association Rule of Law Initiative (ABA ROLI), Cornell University Law Library, the Pacific Legal f. Access to information Information Institute, and the Australasian Legal Information Institute.75 Due to lack of funding, Accessibility and perceived fairness of the courts however, it has not been updated since early 2017. are impacted by the low level of publicly available LiberLII and the judiciary’s website have a high information on their functioning, judgments, and the level of interdependency as the latter contains applicable laws. Liberia does not have a centralized hyperlinks to LiberLII’s decisions for years 1861- and comprehensive website of all national laws 2017. Since 2017, a selection of decisions has and regulations – that is, operated, managed, and been uploaded directly on the judiciary’s website.76 administered by a single government unit – making the process less predictable for the parties. Some Representatives from the Judiciary’s Department laws and judgments are available on two platforms: of Public Information explained that publishing the website of the judiciary and of the Liberia Legal opinions from the Supreme Court has been Information Institute (LiberLII).74 challenging. Judges are resistant to providing copies of the judgments for publication and use The judiciary’s website contains basic information dilatory techniques to avoid it. For example, they on the legal framework, including copies of the claim that the judgments need further revision Constitution, the Judiciary Law, the Rules of Courts, before being published, and when asked again a few Judicial Orders, and a selection of opinions and they simply do not answer. Judges from the Circuit judgments from the Supreme Court, last updated Courts are even more reluctant to provide copies of with several decisions from 2023. The website 72. Interviews with lawyers in Montserrado County, March-April 2023. 73. Interview with the Human Rights Section of the Ministry of Justice, April 11, 2023. 74. Judiciary of the Republic of Liberia, official website: http://judiciary.gov.lr/; and Liberia Legal Information Institute (LiberLII): http://liberlii.org/liberlii/brochure.html. 75. LiberLII was incorporated in May 2011 as a not-for-profit, and its Board of Directors includes representatives of the MOJ, the Law Reform Commission, the Judicial Institute, the LNBA, and the Louis Arthur Grimes School of Law. 76. Selected opinions are available on the official website of the Judiciary: http://judiciary.gov.lr/opinions/. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 43 MAIN FINDINGS FROM DATA COLLECTION their judgments as they may not consider them final, The lack of effective, comprehensive, and timely since there is still a possibility of appeal.77 Judges public access to laws, regulations, and court and their clerks are generally not cooperative with decisions has impact that extends beyond the requests to obtain judgments for publication. While right to access information as these documents it is possible to request copies from each judge’s constitute the foundation for the integrity, clerk by paying a photocopying fee, in practice, transparency, and accountability of the justice these requests are often denied. Additionally, even system. Without it, justice becomes fundamentally if copies are provided, they may only be available unavailable and inaccessible for citizens. The lack to individuals in Monrovia, as accessing them of effective access to legal information can affect from rural areas can be difficult. Providing access critical aspects of the justice system, such as the to all court decisions can enhance transparency, overall quality of the laws, as officials are unable to integrity, and accountability. Publishing decisions harmonize new laws with existing ones before their even while the appeal period is pending can ensure implementation. Similarly, it prevents stakeholders that lower court judges are held accountable for from identifying regulatory gaps, loopholes, their decisions, regardless of whether the parties and deficiencies in the legal system, which can choose to exercise their right to appeal. enable corrupt behavior by allowing individuals to exploit these gaps and inconsistencies. In other The Ministry of Foreign Affairs (MFA) should words, difficulties in accessing legal information publish laws but, in practice, their publication significantly perpetuate the invisibility of corruption has been sporadic. The National Gazette has and hinder the judiciary’s accountability. The lack mostly been focused on national holidays or of transparency also impacts the efficiency of major political events, such as the death of a judges and clerks, who take longer to find basic and Minister, and the publication of laws is left to the necessary information. occasional distribution of handbills. This creates a high level of uncertainty on the applicable law, The low level of digitization of courts, court personnel even among members of the legal profession, and judges, plays a role in the low public availability as laws create ambiguities that can be exploited of information, and consequent low accessibility of by the parties, especially since conflicting laws the courts. Almost all of them do not have internet are often not repealed in a timely manner. When or intranet installed, and the few that do are all asked how difficult it is to stay abreast of the legal in Montserrado County, where the capital of the framework, 88 percent of experts answered it country is located.80 Also, several courts do not have was “Difficult” (consolidated versions of updated a reliable connection to electricity. Therefore little laws and regulations are either not available or can be done online by users, as electronic filing of very delayed: timely updates occur in less than 25 a claim is not allowed, and neither are electronic percent of cases) or “Somewhat difficult” (timely service and virtual hearings, except for a trial updates happen in less than 50 percent of cases).78 currently ongoing in the Supreme Court that started Members of the LNBA explained that the lack of a in March 2023.81 This has an impact on access, as it law on the rulemaking process contributes to these limits what can be done by individuals who do not vacuums.79 live in close proximity to the courts. 77. Interview with the Department of Public Information, April 7, 2023. 78. JUPITER Data Collection Tool, question 2. 79. Focus group with the LNBA, April 25, 2023. 80. JUPITER Data-Collection Tool, questions 95 and 96. 81. Interview with the Department of Information Technology, April 7, 2023. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 44 MAIN FINDINGS FROM DATA COLLECTION The Government of Liberia has actively been trying the decisions. Beyond transparency and access, to increase the level of digitization of its courts by aspects such as how judges are appointed, how implementing an initial form of case management cases are assigned within the courts, the type of system in 14 courts (see Box 1). The system is extra-judicial activities that judges can carry out, only at a data-entry level where clerks enter the and the consistency of decisions with precedent, information in an e-tablet, and it gets recorded into have an impact on the public’s perception of the the system. The tool has been built, the clerks have courts. JUPITER assesses all these dimensions. been trained, and e-tablets have been provided to The appointment of judges is regulated by Articles 12 Magisterial Courts and two Circuit Courts, all in 68 and 69 of the Constitution. According to Montserrado County. A central management team these articles, the Chief Justice and Associate collects the data.82 However, none of the users or Justices of the Supreme Court are appointed and lawyers consulted by the team were aware the commissioned by the President with the consent system existed, perhaps because it is only internal of the Senate. Supreme Court Justices should be to the courts. The system faces several constraints citizens of Liberia of good moral character who such as delays in enabling and mishandling of have practiced for at least five years.84 Circuit Court the e-tablets, and scarcity of network in rural Judges are appointed through the same process, Montserrado. but only three years of experience are required.85 Stipendiary magistrates need to be at least 23 years g. Quality of judgments of age, have been engaged in the active practice of the law for at least two years and reside in the Perceptions of fairness of the courts relate to the magisterial area for which they are appointed.86 public’s perception of judges themselves and the quality of judgments they render. A study on the In practice, however, 69 percent of experts perception of the courts across all 16 counties consulted by the team explained that the process revealed that only 28 percent of Liberians felt for the appointment of judges is followed very judges treated them equally; 23 percent felt that rarely, meaning in less than 25 percent of judgments were the same for everyone; and 31 cases. What happens in practice, instead, is that percent trusted their judges, suggesting a major “appointments are very political.” For example, lack of trust in the court system, with little variation experts mentioned that qualifications were often across counties.83 As discussed above, the lack of overlooked, as political affiliations were given transparency of the legal framework and case law more weight in the process of appointment. In the – especially relevant in a country of common-law past, the appointment was done following LNBA’s tradition like Liberia where case law is part of the recommendation to the President transmitted legal framework – undermines the consistency of through the Chief Justice, but recently this has not the legal framework and users’ predictability of been the case.87 82. Judiciary of the Republic of Liberia. 2023. Annual Report January-December 2022. Monrovia: Judiciary of the Republic of Liberia. 83. Supra Vinck et al, 2011, page 65. 84. Article 68 of the Constitution of the Republic of Liberia. 85. Article 69 of the Constitution of the Republic of Liberia. 86. Sections 2.4, 3.7, 4.7, 5.7, 6.5, 7.6, 9.5 and 10.5 of the Judiciary Law, 1972, specify qualifications of judges at various levels from the Supreme Court to the Magistrate Courts. These requirements, however, are slightly different from those set forth in the Constitution on the minimum number of years required for each type of appointment. In all these cases, the Constitution supersedes (Article 2 of the Constitution of Liberia). 87. Interviews with lawyers in Monrovia, March–April 2023. >>> Box 1: CMIS Pilot in Liberia The Judiciary of Liberia, in partnership with UNDP, has launched a Case Management Information System (CMIS) designed to significantly improve data collection, analysis, and 2020-2021 use, thereby increasing the efficiency of justice services. This  Case Management Unit of the digital tool enables real-time online tracking of both civil and Judiciary was created with criminal cases and the measurement of case disposal rates, assistance of UNDP. leading to more informed judicial decision-making. The CMIS also plays a key role in mitigating judicial bottlenecks and reducing pre-trial detention and prison overcrowding, given 2021-2022 its capacity to highlight areas requiring additional judicial  Case management software resources. designed.  25 clerks of court were trained and The CMIS was developed leveraging open-source software, certified in its use. providing a free and adaptable foundation for secure and efficient service delivery. Special attention was given to addressing the challenges of scalability and sustainability. Dec 2022 The system allows for offline case uploading, enabling  The Judiciary Case Management Office was fully established, uninterrupted usage even in areas with limited internet equipped and staffed. connectivity. Additionally, the system is a homegrown solution,  The case tracking software developed by a Liberian ICT specialist familiar with the local was developed, tested, and legal terrain and culture, allowing for system customization implemented. to suit local needs. This strategy has helped foster system  UNDP donated 14 e-tablets to ownership, paving the way for future maintenance and various courts for its use. upgrades by the end-users themselves. The roll-out of CMIS has been an iterative process, with lessons drawn from each stage for continuous improvements. Case Management Office supported by UNDP and the Government of Liberia, First Judicial Circuit, Montserrado County. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 46 MAIN FINDINGS FROM DATA COLLECTION Once appointed, judges are forbidden from In practice, the process is frequently abused. engaging in extra-judicial activities, as established Seventy-three percent of experts consulted by the by Canons 31 and 37 of the Judicial Canons of the team said that the assignment process is abused Republic of Liberia. In practice, judges seem to “Often” (between 50 percent and 75 percent of respect these rules and seldom engage in political cases) or “Very Often” (in more than 75 percent activities or other remunerated activities, other of cases), and 55 percent of them mentioned than teaching at the law faculty. Judges, however, that it is “Easy” or “Very Easy” to influence.88 The do have interests in various businesses – the most main reason is that, in practice, the process varies frequent example provided by local experts was from judge to judge, with some judges requesting businesses in real estate – which can provide to approve the assignment before issuing the motivation for favoring a party over another one. assignment order—something that is not required by law. Sometimes, judges simply do not assign By law, the assignment of cases within the Circuit cases because they do not wish to add workload to Courts is regulated by Section 15.2 of the Civil their schedules. Procedure Law. According to this provision, cases should be docketed chronologically based on the Departure from previous case law needs to be date that the clerk receives proof of service of the stated and motivated in any decision. When issuing action on the defendant from the plaintiff’s lawyer. a decision, the Supreme Court can either recall a A few cases regulated by law, such as actions previous opinion, modify it, or restate it. The reasons brought by or against the Republic of Liberia, for these decisions should be clearly stated in the receive preference on the trial calendar. This opinion. However, as reported by local experts, provision is supplemented by Section 3.11 of the this rarely happens in practice. The Supreme Court Judiciary Law, which establishes that jury cases frequently provides conflicting decisions, confusing shall also have preference over all other cases and both lawyers and the public. This is an important matters, and criminal cases shall be heard first. The cue into the quality of judgments. This issue is recording clerk forwards the assignments to the exacerbated by the lack of effective public access Office of the Chief Sheriff, who assigns a bailiff to to laws, regulations, and court decisions, which serve the order. Assignment of cases in Magistrate increases the risk of judicial errors and corruption. Courts is done orally. 88. JUPITER Data-Collection Tool, question 88. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 47 MAIN FINDINGS FROM DATA COLLECTION 2.4 Formal courts are costly and slow Courts in Liberia tend to be inefficient. Examples of Budget shortages are often cited as a leading cause specific issues mentioned by court users include for inefficiency. A review of the National Budget for “frustration over unnecessary delays in the court Fiscal Year 2023 (January 1 – December 31, 2023) process”; “inaccessibility of the court to people shows that the Judiciary has a yearly budget of who do not have money”; “cases being consistently USD18,126,994, corresponding to 19 percent of postponed for no apparent reason”; “uncertainty the total budget of USD96,870,000 that is allocated about which court has jurisdiction over a case”; to the Security and the Rule of Law sector (Table and “lack of professional services in court.”89 This 4). This excludes the budget of the MOJ, as there finding is consistent with previous studies that are no line items in the MOJ’s budget that directly have documented the experience of court users relate to the courts, perhaps except for prosecution (Figure 11).90 services which, however, account for only USD >>> Figure 11: Main constraints in accessing the courts Cost 65% Distance 80% Lack of trust 84% Delays 84% Bribes 90% 0% 10% 20% 30% 40% 50% 60% 70% 80% 90% 100% Participants Source: LISGIS et al, 2019. Note: Presents the number of participants who answered “No” to the following questions (in order, according to the vertical axis): “If I had a dispute, I would not go to court because it is too expensive” (Table 153); “If I had a dispute, I would not go to court because it is too far” (Table 154); “If I had a dispute, I would not go to court because I don’t trust the system” (Table 151); “If I had a dispute, I would not go to court because the adjudication of cases takes too long” (Table 152); and “If I had a dispute, I would not go to court because I don’t want to pay bribes” (Table 155). 89. Interviews with court users, February-March 2023. Specifically, Bill (33 year-old male interviewed on February 6); Gibson (42 year-old male interviewed on February 6, 2023); Julie (35 year-old female interviewed on March 7); Jerbo (31 year-old male interviewed on March 7, 2023), and Zaqi (45 year-old male interviewed on March 7). These interviews were carried out at the Montserrado Magistrate Court. 90. Supra IDLO, 2022. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 48 MAIN FINDINGS FROM DATA COLLECTION >>> Table 4: Spending on Security and the Rule of Law sector by key administration entity Percent of total Security and Rule of Law Expenditure Spending entity FY2022 FY2023 FY2024* FY2025* Security and the Rule of Law Sector 100 100 100 100 Law Reform Commission 1 1 1 1 Judiciary 19 19 17 15 Ministry of Justice, of which: 40 41 42 40 Liberia National Police 5 21 23 20 Liberia Immigration Services 2 7 8 7 Correction and Rehabilitation 0.5 1 1 1 Prosecution 1 1 1 1 Ministry of National Defense, of which: 18 17 18 17 Armed Forces of Liberia 16 14 16 14 Other Security Agencies: National Security Agency 11 10 9 13 Executive Protection Services 10 10 11 11 Human Rights Commission 1 1 1 1 National Commission on Small Arms 1 0 0 0 Liberia National Commission on Arms 0 1 1 2 * Projections for FY 2024 and 2025 Source: Ministry of Finance and Development Planning of Liberia, 2023, Draft National Budget 2023. Note: The figures included in the columns correspond to the percentage of the budget allocated to the specific spending entity compared to the total budget dedicated to the Security and Rule of Law Sector. 661,808 of the total MOJ budget, only one percent years 2022 and 2023 to a projected 17 percent in of the total budget dedicated to Security and the 2024 and 15 percent in 2025. The Government will Rule of Law. Other budget line items in the MOJ’s be dedicating less resources to the courts, which budget include, for example, the Liberian National will affect a sector that already has significant Police, the Liberian Immigration Services, and resource management challenges. Interestingly, Correction and Rehabilitation Services.91 the budget per capita of the Judiciary of Liberia is in line with that of other economies in the region, Within the budget allocated to the Security and the evidencing a regional trend with respect to the Rule of Law sector, the budget dedicated to the financing of the justice system (Figure 12). Judiciary will decrease from 19 percent in fiscal 91. Government of the Republic of Liberia, Ministry of Finance and Development Planning. 2023. Draft National Budget Fiscal Year 2023. Monrovia: Government of Liberia. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 49 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 12: Liberia’s budget per capita is in line with that of other economies in the region 90 European Average 85 Justice Budget per capita (USD) South Africa 20 15 10 Namibia Democratic Central Republic African Ghana Kenya Liberia 5 of Congo Republic (DRC) (CAR) South Rwanda Sudan Sudan 0 Source: National Budget documents of South Sudan, Fiscal Years 2022-2023; Sudan, Fiscal Year 2021; Democratic Republic of Congo, Fiscal Year 2023; Ghana, Fiscal Years 2022-2025; Kenya, Fiscal Year 2023; Liberia, Fiscal Year 2023; Rwanda, Fiscal Years 2022-2023; Central African Republic, Fiscal Year 2023; Namibia, Fiscal Year 2022, South Africa, Fiscal Year 2023; and the average budget for the Council of Europe countries.92 Note: The “Justice Budget per capita (USD)” was calculated based on the official budgetary allocation to “Justice” in local currency converted to USD and divided by the population as per 2021 WB population projections. With respect to resource management, the to provide some resources for these mandatory budgets of both the Judiciary and the MOJ have services, increasing the risk of corruption and the high allocations for compensation of employees costs of access to justice.94 In addition, investment against that of goods and services (88 percent for in internet and computer supplies is significantly the Judiciary and 73 percent for the MOJ), leaving low, which might hinder progress related to the the courts often short of necessary resources, implementation of digital case management specifically for transport, telecommunications, and systems in courts and other ICT-related services stationery.93 This imbalance leads to either staff (Table 5). subsidizing work costs or disputing parties having 92. Government of the Republic of South Sudan, Ministry of Finance and Planning, 2022, Draft National Budget Fiscal Year 2022-23; Government of the Sudan, Ministry of Finance and Economic Planning, 2020, Budget Statement 2021/22; Government of the Democratic Republic of Congo, Ministry of Finance, 2022, Projet de Loi de Finances pour l’exercise 2023; Government of the Republic of Ghana, Ministry of Finance and Economic Planning, 2022, Medium Term Expenditure Framework (MTEF) FOR 2022–2025; Government of the Republic of the Republic of Kenya, The National Treasury and Planning, 2023, National Budget State 2022/23; Government of the Republic of Liberia, Ministry of Finance and Development Planning, 2023, Draft National Budget Fiscal Year 2023; Government of the Republic of Rwanda, Ministry of Finance and Economic Planning, 2023, 2022/23 National Budget; Government of the Central African Republic, Ministry of Finance and Budget, 2023, Loi No. 22016 Arretant le Budget de l’État pour l’Année 2023; Government of the Republic of Namibia, Ministry of Finance, 2021, 2021/22 Budget Statement; Government of the Republic of South Africa, National Treasury, 2023, Budget Review 2023; and European Commission for the Efficiency of Justice, 2022, European judicial systems CEPEJ Evaluation Report. 93. Supra Ministry of Finance and Development Planning of Liberia, 2023, Draft National Budget Fiscal Year 2023. 94. Supra IDLO, 2022, page 34. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 50 MAIN FINDINGS FROM DATA COLLECTION >>> Table 5: Judiciary budget allocation per object of expenditure Percent of total Judiciary budget Object of expenditure FY2022 FY2023 FY2024* FY2025* Judiciary 100 100 100 100 Compensation of Employees and Social Benefits, of which: 81 88 88 80 Basic salary - Civil service 38 42 50 50 Retirement Benefits 3 4 4 3 Benefits for Judges 40 42 35 28 Use of goods and services, of which: 14 11 12 19 Internet Provider Services 0.02 0.07 0.07 0.12 Computer Supplies, Parts and Cabling 0.01 0.09 0.09 0.14 Stationery 1 1 1 2 Printing, Binding and Publication Services 0.01 0.04 0 0 Non-Financial Assets, of which: 5 0.33 0.27 0.25 Transport Equipment-Vehicles 5 0.33 0.27 0.25 * Projections for FY 2024 and 2025 Source: Ministry of Finance and Development Planning of Liberia, 2023, Draft National Budget 2023. Note: The figures included in the columns correspond to the percentage of the budget of the Judiciary allocated to the specific objects of expenditure. a. Cost the minimum fee for filing a claim with the Circuit Court/High Court is USD10 (1.5 percent of GDP per When looking at cost, three components are capita) in Liberia, USD 15 (0.7 percent of GDP per relevant: court fees, attorney fees, and additional capita) in Kenya, USD 25 (1.1 percent of GDP per fees to obtain or speed up services. Court fees capita) in Ghana and USD 36 (4.4 percent of GDP in Liberia are set by law and the fee schedule is per capita) in Rwanda.96 publicly available, both online and in several courts, but some of the more rural ones did not have a Liberia’s fee schedule is detailed, with flat fees billboard affixed with the fees.95 The latest fee ranging between USD5-25 for every step of the schedule was promulgated by the Supreme Court process. Users reported that it was burdensome in 2015 pursuant to the Financial Autonomy Act to keep up with multiple small payments. Each of 2006. For example, the minimum fee for filing a payment created an opportunity for interactions claim with the Supreme Court in Liberia is USD10 with clerks and sheriffs, who routinely asked (1.5 percent of GDP per capita), vs. USD25 (1.1 for additional money to perform their functions, percent of GDP per capita) in Ghana and USD74 significantly increasing the final cost to users. (3.6 percent of GDP per capita) in Kenya. Similarly, 95. Judiciary of the Republic of Liberia. 2015. Revised Schedule of Court Costs, Fees and Fines. Monrovia: Judiciary of the Republic of Liberia. 96. Judiciary of the Republic of Liberia. 2015. Revised Schedule of Court Costs, Fees and Fines; Judiciary of the Republic of Kenya, 2020, Court Fees Assessment Schedule; Kwibuka, E., 2018, Government slashes court fees to ease access to justice; and Judiciary of the Republic of Ghana, 2014, Civil Proceedings (Fees and Allowances) (Amendment) Rules 2014. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 51 MAIN FINDINGS FROM DATA COLLECTION When asked to quantify this additional fee, users damages in civil cases, or acquit defendants in provided numbers ranging from USD 5 to USD 100, criminal cases. Defense attorneys and prosecutors but the median of all answers was USD28.5, or 285 reportedly directed defendants to pay bribes percent of the official fee.97 to secure favorable decisions from judges, prosecutors, and jurors or to have court staff place Gaps in the fee schedule further enable the cases on the docket for trial. Some judicial officials collection of additional fees by clerks and bailiffs, and prosecutors appeared subject to pressure, as some services are entirely unregulated. An and the outcome of some trials appeared to have example of these omissions are the transport been predetermined, especially when the accused costs sustained by bailiffs when serving court persons were politically connected or socially documents, sometimes far into the country, in areas prominent.100 with limited infrastructure. Bailiffs routinely ask for additional fees to perform the service. Practicing Liberians, women and men alike, seem to take lawyers noted that court fees are not set at a level as a matter of fact that bribery is indispensable if that deters individuals and businesses from filing a one wants to win a case in the formal courts, and claim, but the additional fees paid in practice are a consequently that there is little point in pursuing a significant barrier.98 case in court if one cannot or is unwilling to assume such costs.101 This expectation that users of the Additional fees are often also paid to judges to courts should pay fees at every stage of the process speed up or influence a case. Users reported has put justice beyond the reach of many ordinary that “the judge refused to sign a bond filed by the people and strengthened the impression that the party without the payment of an additional fee”; courts only serve to protect the interests of the “magistrates can fall for money easily, depending rich.102 In fact, 90 percent of people interviewed on the case, those who have money can pay any for the purposes of a previous study said that they amount just to make the Magistrate make them would not bring a dispute to court if they had one win the case”; “when you have a big case you have because they do not want to pay bribes.103 to give the Magistrate money before he can pay attention to your case”; “the more money you give This finding is consistent with recent reports the Magistrate, the more the case will be in your of corruption in the public sector. According to favor.”99 When asked to quantify this additional fee, Transparency International’s Global Corruption users provided numbers ranging from USD25 to Barometer Survey, Liberians were the second USD500, with the median of all answers at USD250. most likely in Africa to be forced to pay a bribe to access public services in 2019, and nearly half A 2023 Report from the U.S. State Department perceived rising corruption.104 Similarly, the Center similarly found that judges reportedly solicited for Transparency and Accountability in Liberia bribes to try cases, grant bail to detainees, award 97. Interviews with court users, March–April 2023. 98. Interviews with lawyers in Montserrado County, March–April 2023. 99. Interviews with court users, March–April 2023. Specifically, Favor (36 year-old female interviewed on March 10, 2023); Annie (29 year-old female interviewed on March 11, 2023); Garmonyou (33 year-old male interviewed on March 11, 2023); and Octavious (58 year-old male interviewed on March 11, 2023). All these interviews were conducted at the Temple of Justice in Monrovia, at Paynesville Magisterial Court and at Omega Magisterial Court. 100. Supra United States Department of State, 2023, page 7. 101. Supra Lubkemann et al, 2011, page 88. 102. See supra Bonde and Williams, 2019, page 35; and Moran, G., Ian Christoplos, Caroline Bowah, and Yan Vallah Parwon. 2021. Evaluation of SIDA’s Rule of Law Portfolio in Liberia, 2016-2020. Final Report. Sweden: Swedish International Development Cooperation Agency – SIDA. Page 6. 103. Supra LISGIS et al, 2019, Table 155, page 104. 104. Pring, C. and Jon Vrush. 2019. Global Corruption Barometer Africa 2019. Citizen’s views and experiences of corruption. Berlin: Transparency International and Afrobarometer. Page 15. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 52 MAIN FINDINGS FROM DATA COLLECTION (CENTAL) 2022 State of Corruption Report revealed of funding—this Department is not captured in the that 90 percent of Liberians think the corruption budget of the judiciary, as its utility is frequently level is high in the country, with confidence in the questioned. executive branch of government to fight against Attorney fees are also part of the cost sustained by corruption declining from 30 percent in 2021 to 26 individuals and businesses to pursue claims in the percent in 2022.105 Liberia also ranked 112 out of courts. JUPITER assesses how likely the winning 140 countries on the World Justice Project Rule of party is to get full reimbursement of these fees.108 Law Index in 2022, where it ranks 128 out of the 140 On the quantification of attorney fees, previous countries on corruption, representing extremely studies suggest that they are in line with – or lower high corruption found in both the judiciary and the than – those charged by neighboring countries police.106 (Figure 13). However, attorneys are the main The Government of Liberia is aware of the channel through which additional fees are paid to perception of corruption in the courts, and it has clerks, sheriffs, bailiffs, and judges, and often retain taken some steps to address it. The Judiciary a portion of these fees. As a result, attorney fees in Inquiry Commission (JIC), for example, was practice can be significantly higher than previous established to investigate complaints of unethical studies reported, especially since the winning conduct of judges and has conducted several party can recover additional fees through formal successful investigations. Members of the public court processes. It is in part for these reasons that are encouraged to file complaints of unethical when court users were asked how satisfied they conduct to the JIC, where an independent and were with the costs associated with hiring a lawyer, impartial hearing is carried out by a panel composed 53 percent said they were dissatisfied or very of judges, the President of the LNBA, and the dissatisfied.109 Chairman of the Grievance and Ethics Committee Some attorney fees are regulated by law. of the Supreme Court. Also, in 2015, the former Specifically, Rule 38 of the Code of Moral and Chief Justice – His Honor Francis S. Kporkor, Sr. – Professional Ethics establishes that no lawyer shall established the Department of Public Information accept to represent clients in the courts of Liberia to address reports of corruption in the judiciary for less than the minimum charges fixed by the as well as a general perception that “justice in LNBA and approved by the Supreme Court. The Liberia is for sale.”107 The Department’s objective same rule sets some minimum charges for legal was to contribute to rebranding the Judiciary and representation. Additionally, Section 45.1 of the building public confidence and trust by helping Civil Procedure Law establishes that the party in people understand how to pursue cases and whose favor a judgment is entered is entitled to seek recourse against judges who commit ethical costs in the action, unless otherwise provided by transgressions. Since its inception, the Department statute or rule or unless the court determines that has undertaken several initiatives, for example, to allow costs would not be equitable under the the launch of a website and the publication of a circumstances. quarterly newsletter for the public. However, many of the initiatives could not be sustained due to lack 105. Yeakula, G.D., Anderson D. Miamen, and Oscar V. Bloh. 2022. State of Corruption Report 2022. Trends and Citizens’ Views and Perception of Corruption. Monrovia: CENTAL and Transparency International. 106. Supra World Justice Project, 2022. 107. Interview with the Department of Public Information, April 7, 2023. 108. JUPITER Data-Collection Tool, question 50. 109. Supra LISGIS et al, 2019, Table 89, page 71. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 53 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 13: Attorney fees in Liberia are comparable with those charged by neighboring countries 35% 31.3 Cost (% of claim value) 27.5 28 28% 25.1 21% 12.3 14% 10 7% 0 Ghana Sudan Liberia Kenya Rwanda Central African Republic Source: Doing Business 2020, World Bank. Note: Costs are recorded as a percentage of the claim value, assumed to be equivalent to 200 percent of income per capita or $5,000, whichever is greater. In terms of attorney fees, the percentage includes the average fees that plaintiff must advance to a local attorney to be represented in a case, regardless of final reimbursement.110 In practice, however, these rules are seldom Self-representation is rendered almost impossible followed and the chance that the winning party by the lack of reliable access to updated official recovers the fees is almost zero, especially at the versions of laws, regulations, and court decisions. Magistrate Court level. Lawyers interviewed by the When these resources are difficult to find, citizens team explained that at the end of the proceedings, are unable to represent themselves in court the lawyer for the winning party and the court clerk procedures as they do not have the relevant prepare a bill of cost, which is signed by the judge information to construct their claim. Even who presided over the case. The opposing lawyer representation by lawyers can be of poor quality if is then afforded the opportunity to challenge the they do not have access to updated legal resources. bill of cost before it is executed against the losing Overall, the combination of official and unofficial party. This bill of cost is prepared further to the costs makes the court process in Liberia expensive. fees set out in Rule 38, which are extremely high In fact, for 65 percent of users, courts are so compared to the median claim value, especially expensive that they would not bring a claim if in the Magistrate Courts. For that reason, these they had one.111 Ninety-two percent of court fees are almost never charged by lawyers when users reported that the cost of the litigation was representing clients in the Magistrate Courts. It is significantly higher than they had anticipated, more likely to recover some cost at the level of the including attorney fees.112 Circuit Courts and Specialized Courts but never the entire amount. 110. World Bank. 2020. Doing Business. Enforcing Contracts Methodology. Washington, DC: World Bank. 111. Supra LISGIS et al, 2019, Table 153, page 103. 112. Interviews with court users, February-March 2023. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 54 MAIN FINDINGS FROM DATA COLLECTION b. Delays A similar narrative of delays in the formal courts is obtained in the Courts’ Case Activities Report from The high costs and long delays in the court system 2018–2022.113 Court reports are produced by the are intertwined. First, the longer the process is, the Division of Records and Documentations of the costlier it becomes. Second, several users reported Temple of Justice on a quarterly basis, with inputs that the process gets stuck until additional fees from all Magistrate and Circuit courts around the were paid to move it along, making the process yet country. Each quarterly report provides an overview again more expensive. of the courts (functional vs. non-functional) as well The inefficiency of the courts is one of the reasons as a section per circuit court detailing the caseload the customary system thrives (Figures 14 and 15). of all courts (circuit and magistrate) in each county. Respondents were more dissatisfied than not with Data available for each court includes the number of the speed with which judgments are reached (39.1 cases on the docket, the number of cases disposed, percent satisfied vs. 46.3 percent dissatisfied) and the number of cases transferred and the number of the effectiveness and efficiency of the courts (30.5 cases pending for each month. The annual reports percent satisfied vs. 36.8 percent dissatisfied). In compile information on caseload but offer less contrast, respondents were satisfied with the speed breakdown than the quarterly reports. Based on at which decisions are reached in the customary this data, the clearance rate, the case turnover system (76.6 percent) and their effectiveness and ratio, and the disposition time are calculated. efficiency (79 percent). >>> Figure 14: The customary system is perceived as being more efficient and effective than the courts 2500 2053 2000 Courts Informal system Number of participants 1500 1146 1087 953 1000 487 454 465 500 203 115 45 0 Very satisfied Satisfied Don’t know Dissatisfied Very dissatisfied Rating Scale Source: LISGIS et al, 2019, Tables 131 and 141. Note: Participants were asked to what extent they agreed that the Judiciary and Informal Justice Actors adjudicated cases in an effective and efficient manner (from “Strongly Agree” to “Strongly Disagree”). 113. The team was able to access seven reports of the Judiciary Branch of Government of Liberia. See Annual Report, October 1, 2017 – September 30, 2018; Annual Report, October 1, 2018 – September 30, 2019; Annual Report, October 1, 2010 – September 30, 2020; Annual Report, October 1, 2020 – September 30, 2021; Annual Report, October 1, 2021 – September 30, 2022; Annual Report, January–December 2022; and Courts’ Case Activities Report, Third Quarter, A.D. 2022. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 55 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 15: Liberians have a higher trust in the customary system’s timeliness 2500 2100 2000 Courts Informal system Number of participants 1500 1132 1176 1000 721 511 404 444 500 238 237 45 0 Strongly Agree Agree In the Middle Dissagree Strongly Dissagree Rating Scale Source: LISGIS et al, 2019, Tables 132 and 142. Note: Participants were asked to what extent they agreed that the Judiciary and Informal Justice Actors resolved cases in a timely manner (from “Strongly Agree” to “Strongly Disagree”). This analysis reveals a massive backlog of cases division in two terms and report data accordingly. at the Supreme Court. Lawyers interviewed by the Figure 16 displays key statistics on caseload team mentioned that one significant contributing data from the Supreme Court, showing that the factor is the original jurisdiction of the circuit courts clearance rate is low and that the backlog – the in certain disputes, which leads to the Supreme ratio of new cases to cases resolved – is increasing. Court being flooded by first-instance appeals (for The disposition time, as a result, is increasing from cases that will also not benefit from the traditional 1,941 days in 2020, to 4,941 days in 2021, and possibility of having three levels of review). 5,259 days in 2022. That corresponds to more than Moreover, the Supreme Court lacks financial 14 years. Comparatively, the highest courts of other autonomy, which does not allow the institution countries in the region have much higher clearance to hire enough staff and to make the investments rates: 73 percent in Rwanda and Tanzania, 94 required to dispose of cases more efficiently.114 percent in South Africa, 98 percent in Ghana, and a record 154 percent in Kenya.115 Clearance rates The Supreme Court has two terms annually, higher than 100 percent indicate that the court is respectively commencing on the second Monday of clearing previous backlog by solving more cases October and on the second Monday of March and than it receives. continuing for as long as the business before the Court requires it. The Annual Reports reflect this 114. Focus group with the LNBA, April 25, 2023. 115. Supreme Court of the Republic of Rwanda. 2022. Summary of the Performance of the Judiciary during the Year 2020-2021, Kigali: Supreme Court of Rwanda; Judiciary of the United Republic of Tanzania. 2022. Comprehensive Performance Report of the Judicial Functions 2021, Dar es-Salaam: Judiciary of the United Republic of Tanzania; Judiciary of the Republic of South Africa. 2023. Annual Judiciary Report 2021/22, Midrand: Judiciary of the Republic of South Africa; Judiciary of the Republic of Ghana. 2019. Judicial Service 2017-2018 Annual Report, Accra: Judiciary of the Republic of Ghana; Judiciary of the Republic of Kenya. 2023. State of the Judiciary and the Administration of Justice. Annual Report FY 2021/22, Nairobi: Judiciary of the Republic of Kenya. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 56 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 16: The Supreme Court is massively backlogged 450 20 416 407 379 360 16% 16 Number of cases Clearance rate (%) 270 12 180 8 7% 6% 60 90 4 28 27 0 0 Oct-2020 and Mar-2021 Oct-2021 Mar-2022 Incoming Cases Resolved Cases Clearance Rate (CR) Source: Judiciary Branch of Government of Liberia, 2021–2023, Office of the Chief Clerk of the Supreme Court, as cited in the Annual and Quarterly Reports of the Judiciary. Among Liberian lawyers, the Supreme Court has over the past 5 years. Similarly, clearance rates in the reputation of rarely hearing cases, and of the Magistrate Courts decreased from 59 percent handing opinions even more rarely. When civil in 2018 to 53 percent in 2022, while the average cases are heard, they are usually prioritized based disposition time increased from 234 days in 2018 on higher monetary value and high-profile political to 296 days in 2022, corresponding to a 26 percent cases. Making direct contact with Justices of the increase over the same period. In both cases, Supreme Court can help getting a case heard. the impact of the COVID-19 crisis on efficiency is visible in the charts. Comparatively, the lowest Delays are less apparent in lower courts, though courts of other countries in the region performed some of the trends discussed in connection with more efficiently, with clearance rates of 58 percent the Supreme Court also apply to Circuit Courts and (South Africa), 86 percent (Rwanda), 92 percent Magistrate Courts (Table 6). Specifically, clearance (Kenya and Ghana), and 97 percent (Tanzania).116 rates are also decreasing in Circuit Courts – indicating increasing backlog – with a corresponding In contrast, Specialized Courts have seen an increase in average disposition time. The average improvement in performance with increasing clearance rates lowered from 39 percent in 2018 to clearance rates, and decreasing backlog and 38 percent in 2022, while the average disposition disposition times. However, they are right times worsened from 539 days in 2018 to 597 days now going above and beyond pre-COVID-19 in 2022, corresponding to an 11 percent increase levels. Specialized Courts went from processing 116. Supra Judiciary of the Republic of South Africa, 2023; Supreme Court of the Republic of Rwanda, 2022; Judiciary of the Republic of Kenya, 2023; Judiciary of the Republic of Ghana, 2019; and Judiciary of the United Republic of Tanzania, 2022. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 57 MAIN FINDINGS FROM DATA COLLECTION >>> Table 6: Detail of the workload in Circuit Courts, Specialized Courts, Magistrate Courts, and the Supreme Court Incoming Resolved Clearance Disposition Court Year Cases (#) Cases (#) Rate (%) Time 2018 3921 1539 39% 539 2019 2221 989 45% 447 Circuit 2020 1951 746 38% 580 Courts 2021 1691 802 47% 384 2022 3061 1150 38% 597 2018 989 704 71% 145 2019 915 635 69% 159 Specialized 2020 542 233 43% 473 Courts 2021 785 446 57% 273 2022 1017 768 76% 111 2018 6515 3863 59% 234 2019 6232 3902 63% 198 Magistrate 2020 4492 2958 66% 166 Courts 2021 8973 5277 59% 234 2022 10428 5575 53% 296 March 2021 379 60 16% 1941 Supreme October 2021 407 28 7% 4941 Court117 March 2022 416 27 6% 5259 Source: Judiciary of the Republic of Liberia, 2018-2023, Annual and Quarterly Reports of the Judiciary. Note: The clearance rate is calculated by dividing the number of cases resolved by the number of incoming cases. Disposition time refers to the average number of days that it takes the courts to resolve a specific case. approximately 71 percent of incoming cases in while the relative inefficiency of the Circuit Courts 2018 to 76 percent in 2022, with a corresponding is in part attributable to judges rotating across reduction in disposition time from 145 days in circuits every term, impacting continuity. Each 2018 to 111 days in 2022 (Figure 17). This is more Circuit Court term (for jury session) is 42 days. efficient than other countries in the region – for Additional days (up to a total of three months) are example, South Africa, with a clearance rate of 61 allotted to write the rulings. A proposal to reduce percent, but less efficient than others – for example, the terms of Circuit Courts from four to two was Ghana with a clearance rate of 92 percent).118 The recently discussed by the plenary of the Liberian efficiency of the Specialized Courts seems to be Senate as a measure to address the backlogs. in part attributable to having monthly sessions, In the past, the caseload of the courts was partly as opposed to two sessions yearly in the Supreme relieved by the fact that the judicial hierarchy also Court and four sessions yearly in the Circuit Courts, 117. The Supreme Court has two terms annually, in March and October. The Annual Reports of the Judiciary from the years 2018, 2019 and 2020 did not include information on the caseload of the Supreme Court. 118. Supra Judiciary of the Republic of South Africa, 2023; and Judiciary of the Republic of Ghana, 2019. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 58 MAIN FINDINGS FROM DATA COLLECTION >>> Figure 17: Clearance rates are higher in lower instance courts 12000 100 10428 9000 76% 75 71% 69% 8973 66% Number of cases Clearance rate (%) 63% 57% 59% 59% 53% 6000 50 6515 47% 6232 45% 43% 5575 5277 39% 38% 38% 4492 3921 3863 3902 3000 25 1539 1150 3061 2958 1017 989 989 746 802 915 785 2221 704 768 1951 635 542 446 1691 0 233 0 2018 2019 2020 2021 2022 2018 2019 2020 2021 2022 2018 2019 2020 2021 2022 Circuit Courts Specialized courts Magistrate courts Incoming Cases Resolved Cases Clearance Rate (CR) Source: Judiciary of the Republic of Liberia, 2018-2023, Annual and Quarterly Reports of the Judiciary. Note: The trend line is representing a dip in Clearance Rates for Circuit Courts and Magistrate Courts in 2022 and a worse performance in 2022 than five years back in 2018, while Specialized Courts have improved their Clearance Rates in 2022 for the same time frame. included the Justices of the Peace. Since their The Ministry is also assessing the possibility of abolition, however, the Government has been putting in place an early dispute evaluation process looking for ways to address the issue of delays and that could be implemented through the office of the backlogs and has decided to do so by focusing on City Solicitor. The proposal is to filter cases at an strengthening the Alternative Dispute Resolution early stage, shortly after a dispute has occurred or (ADR) framework. The MOJ leads the program, a complaint has been made to determine whether which is still in its piloting phase.119 Based on an early, rapid, and non-judicial resolution of the the pilot’s results, the Ministry will evaluate the dispute is feasible. If the parties are willing to impact and work towards the enactment of an attempt to resolve their dispute outside of formal ADR policy.120 The policy focuses on identifying court proceedings, the City Solicitor will initiate the trained ADR mediators and conducting a capacity procedure to accomplish a negotiated solution.122 needs assessment to provide training to formal This would divert cases that can be solved through and customary justice actors on ADR mechanisms ADR mechanisms away from the courts to reduce where needed. 121 their burden. 119. The pilot is being implemented in the counties of Bong, Nimba, Montserrado and Lofa. See: Government of the Republic of Liberia, Ministry of Justice. 2015. Alternative Dispute Resolution (ADR) Program. 2015 Annual Report. Monrovia: Government of Liberia. Page 5. 120. Supra Ministry of Justice, 2015, ADR Program 2015 Annual Report, page 24. 121. Supra Ministry of Justice, 2015, ADR Program 2015 Annual Report, page 17. 122. Supra Ministry of Justice, 2015, ADR Program 2015 Annual Report, page 29. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 59 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 60 POLICY IMPLICATIONS 3. POLICY IMPLICATIONS The concurrent usage of the formal and customary the customary system – or, worse, trying to alienate justice systems in large parts of Liberia, and the it – can carry huge consequences, including preference of most users for the customary system, creating vacuums, exacerbating the negative suggest that policies improving justice should focus impact of pluralism, threatening the values of large on both systems and the interplay between them. segments of the population, and placing undue Mutually beneficial and partly regulated coexistence pressure on justice seekers. In contrast, engaging between the two systems is the objective and can with the customary system can both legitimize its widen access to justice for all citizens. Neglecting role in alleviating court backlogs, as well as start IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 61 POLICY IMPLICATIONS a process of socioeconomic transformation that Fourth, suggested policies need to consider leads to the elimination of harmful practices from structures and mechanisms that already exist. the customary system. A few policy implications Given the diversity of leadership structures in every follow from the main findings of the data collection community, solutions should harness the strengths exercise, with a number of guiding principles.123 and address the weaknesses of the system that is already in place. Meaningful justice reform should First, policies need to correspond to current be based on a social consultation process that is realities and realistic expectations of development engineered to solicit local ideas for change and that and reform, including from a budgetary perspective, fosters a sense of community engagement in the rather than to an ideal image of the justice system reform process. traditionally tailored to high-income countries. For this reason, reforms such as electronic case The suggested way forward builds on earlier management, digitization, e-filing, e-service, interventions and attempts to address or and virtual hearings are put on a future list, given circumvent some of the main reasons for their that, at present, they can only be implemented in failures. One of the most notable earlier efforts to Monrovia and thus impact small portions of the increase judicial effectiveness was the Gbarnga population. Some pilots of these technologies are Conference on Enhancing Access to Justice held in already ongoing in the Temple of Justice and should 2010 by the MOJ, the MIA and the Judiciary. While continue, but they do not appear to be scalable the conference was successful in many respects, beyond Montserrado at this stage, given the poor such as bringing attention to the experiences infrastructure of the courts in more remote areas. and voices of traditional leaders who had been previously excluded from policy discussions, most Second, priority is given to efforts focusing on the of its recommendations have not been successfully practice, not on the legal framework. As highlighted implemented.124 These recommendations focused in Section 2, most areas benchmarked by JUPITER on reducing backlog; increasing infrastructural, are already regulated, and the two notable financial, and human capacity; improving access exceptions (legal aid and ADR) already have draft to courts in rural regions; combating corruption laws pending approval. This section, instead, through the improvement of judicial salaries; and focuses on practical ways to improve the delivery increasing the availability and accessibility of of justice given the existing legal framework. The legal aid, assistance, and information. However, aim is to address some of the de facto limitations implementation lagged due to social and political faced by users (delays, high costs) without having issues, lack of funding, and institutional capacity, to go through a lengthy legislative process. the Ebola and COVID-19 crises, and the conclusion Third, the policy implications of the main research of the UNMIL’s presence (and funding) in Liberia. findings include the need to balance the powers of The policy implications discussed below prioritize the Executive, the Judiciary, other agencies, and feasibility. individuals with a role in the justice system. This constitutes an implicit constraint on any policy option that could shift power from one part of the government to another. 123. Recommendations listed in this section were informed by the findings of the JUPITER assessment, discussions with the Ministry of Justice; the Ministry of Finance and Development Planning; the Departments of Documentation, Public Information, Alternative Dispute Resolution, Human Rights, Personnel, and Information and Communications Technology of the Judiciary of the Republic of Liberia; the Association of Trial Judges and Magistrates; the Association for Female Lawyers of Liberia; the Liberia National Bar Association; the U.S. Department of State; the Swedish Embassy; OHCHR; UNDP; and IDLO; as well as by the preparatory documents and findings of the 2010 Gbarnga Access to Justice Conference. 124. Supra Bonde and Williams, 2019, page 45. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 62 POLICY IMPLICATIONS 3.1. Making laws, regulations, and selected judgments public The first possible step toward improving the for judicial corruption and error. Lawyers and users efficiency of the formal system is making a have little predictability on the possible outcomes comprehensive collection of updated laws and of judicial proceedings, increasing uncertainty and regulations and establishing a mechanism for deterring investment and economic activity. their regular publication both in the national As mentioned in Section 2.3f, some laws, gazette and in an online repository. The method regulations, and judgments are available on the of publication should also take into consideration website of the Judiciary and on LiberLII. The latter the habits of Liberians with regards to how they is current until 2017, so investment in updating it currently consume information, for instance, by would be required to upload the laws, regulations, including radio, television broadcast and social and judgments of the last six years. Some of these media. Making legal information accessible in are already available on the judiciary’s website, so an audience-appropriate way may also include updating would not require large investments in strategies for bypassing low literacy levels, new platforms. This effort should also include the including role-playing, scenario reconstruction and codification and publication of the opinions of the other low-literacy methods. Once a mechanism Supreme Court, as these constitute a source of law for publication is established, it can be extended in Liberia. to judgments, starting with those issued by the Supreme Court. The lack of updated resources has generated a proliferation of smaller initiatives. The LNBA, for The absence of a comprehensive collection of example, has partnered with the Codification updated laws and the lack of transparency in judicial Center and other institutions such as the MOJ, the proceedings is a challenge in Liberia. Currently, Law Reform Commission, and the Law School to no centralized, official, or comprehensive and support the codification of Supreme Court Opinions. searchable website of laws and regulations exist While this fragmentation is not desirable, it might in Liberia. Many laws and regulations are posted help in the update of LiberLII by crowdsourcing on the internet but not in the same place, and they information from these smaller initiatives. are mostly unofficial versions that are not updated when they are repealed or amended. The lack of The responsibility to publish laws and regulations wide public access to a comprehensive set of laws rests with the MFA, as established in Section provides opportunities for government officials, 20.3(i) of the Executive Law.125 There are no rules citizens, and businesses alike to act outside of in the Executive Law as to the timeline and the the law. The result is unaccountable government form the publication should take. But Section and court officials. Further, when officials in all 60 of the Legislative Law of 2000 (Title 19 of the branches of government lack access to laws and Liberian Code of Laws Revised) establishes a 90- regulations, they cannot effectively fulfill their day time limit for publication and clarifies that it official duties. Lawmakers enact laws that are not should take the form of a pamphlet or handbill.126 properly harmonized with existing laws, and judges It does not specify that laws should be published are not certain that they are upholding the most in the National Gazette, nor does it require online recent version of the law, creating additional scope 125. Section 23(i) provides that the MFA shall “oversee the publication of all papers and documents required by law to be published.” 126. Legislature of the Republic of Liberia. 2000. Legislative Law, Title 19. Monrovia: Legislature of the Republic of Liberia. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 63 POLICY IMPLICATIONS publication. This function is far from MFA’s  Consider the use of LiberLII as a comprehensive central mandate of formulating and implementing online repository of all national laws, regulations, Liberia’s foreign policy and promoting beneficial and Supreme Court decisions, transforming it into relationships with other countries, which could a centralized website operated, administered, explain why MFA has not prioritized the publication and managed by a single government unit. of the National Gazette.127  Consider the inclusion of a time frame for the publication of opinions of the Supreme Court. Possible steps to increase the public availability of laws, regulations and judgments include to:  Complement all initiatives with awareness  Reconsider whether the responsibility for raising and legal education campaigns, using publication should rest with the MFA instead low-literacy strategies to ensure inclusion. of the MOJ, for example, which oversees the Justice becomes fundamentally unavailable and editing and printing of the Supreme Court inaccessible for citizens without the publication Opinions, or a government printing office staffed of laws, regulations, and judgments. Publication with non-political professional appointees to is also essential to ensure that laws are of high ensure continuity and independence. quality, as the lack of publication prevents officials  Expand the venues for publication beyond from undertaking harmonization of new laws with pamphlets and handbills to include a dedicated, existing ones. More broadly, some attention can be centralized website. devoted to the law-making process to ensure that  Clarify whether publication in the National consistency checks are mandated and conducted Gazette is essential for laws and regulations to before laws and regulations are published, and become enforceable and effective. that the published document is an accurate and  Regulate the modalities of publication of consolidated version that reflects all amendments. laws and regulations beyond the competent This will help to avoid confusion and ensure that authority and the timeframe, including a citizens have access to accurate and up-to-date requirement to publish the full text of the laws information. with amendments integrated therein. 127. Section 20.3 of the Executive Law, 1972. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 64 POLICY IMPLICATIONS 3.2. Addressing backlog and delays in the courts The Supreme Court of Liberia is massively for a total of seven judges. This would improve backlogged, with hundreds of cases coming on the current representation from one judge for appeal every year (see Section 2.4b). It is staffed every 1.03 million people to one judge for every with five justices and hears cases on appeal from 741,000 people. This number would better align the Circuit Courts and the Specialized Courts. Part the Supreme Court of Liberia with the highest of the backlog is due to the original jurisdiction of court of comparable countries in the region such the Circuit Courts and Specialized Courts over a as Namibia (one judge for every 632,000 people) large number of cases. Since there are many such and Rwanda (one judge for every 961,000 people). courts, many cases go straight to the Supreme In addition, it would not affect the current voting Court on appeal. As a result, cases take too long, majorities, making it easier to implement from a and dispute resolution is costly and inefficient. political perspective. One solution to this problem could be the Secondly, the original jurisdiction of the Circuit establishment of new Appellate Courts, which Courts could be limited by expanding the jurisdiction would hierarchically fit between the Circuit Courts of the Magistrate Courts. At present, the Magistrate and the Supreme Court. This solution would be Courts operate like small claims courts and have expensive, and may not be adequate in a context limited jurisdiction. In civil cases, their jurisdiction of constrained resources like Liberia’s. Additionally, is limited to: it would require large (and time consuming)  Recovery of money or chattels valued less that legislative amendments and raise questions on who USD2,000. to staff these courts with. Magistrates and Circuit  Payment of debt valued less than USD2,000. Court judges with the requirements prescribed  Summary proceedings to recover possession of by law are already missing in large numbers in real property by removing tenants and obtaining Liberia.128 Creating numerous new courts would due rent of less than USD500. further exacerbate this issue. It would also require amending Article 66 of the Constitution, which  Some matters arising in family law as established establishes that the Supreme Court “shall exercise by the Domestic Relations Law. final appellate jurisdiction in all cases whether The easiest way to increase the jurisdiction of the emanating from courts of record, courts not of Magistrates Courts is to raise the financial limits record, administrative agencies, autonomous of the disputes that fall within their purview. The agencies or any other authority,” and does not allow limit could, for example, be updated to meet the the Legislature to create any exception or deprive minimum thresholds of the Specialized Commercial the court of such powers. Court and Debt Courts (USD 15,000), though other Instead, two simpler measures can be considered limits are also possible. As presented in Section to decrease backlog. First, part of this backlog can 2.4b, the caseload of Specialized Courts in Liberia be relieved through the amendment of Article 67 is low in comparison to both the Magistrate Courts of the Constitution to allow the appointment of two and the Supreme Court, while its clearance rate additional justices to the Supreme Court bench, increased from 43 percent in 2020 to 76 percent in 128. Lubkemann, S., Isser, D., and Banks, P. 2010. “Justice in a Vacuum: The Unintended Consequences of the Constraint of Customary Justice in Post- Conflict Liberia.” In Deborah Isser (ed.), Customary Justice and the Rule of Law in War-Torn Societies. Washington, DC: United States Institute for Peace Press. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 65 POLICY IMPLICATIONS 2022. Within this context, Circuit Courts, especially there have been issues with individuals being Specialized Courts, have the capacity to take on selected who do not satisfy the legal requirements the cases that would currently be appealed at the for appointment (see Section 2.3g).129 Minor Supreme Court level, alleviating its burden. amendments to the rules of evidence in the Magistrate Courts could be considered at the same If the jurisdiction of the Magistrate Courts is time as the threshold is raised. expanded, even more attention should be placed on the selection of the magistrates. Historically, 3.3. Addressing cost in the courts As discussed in Section 2.4a., dispute resolution  Broaden the market for legal services beyond in Liberia is expensive. Formal and informal fees lawyers to include paralegals, who can abound, leading to prohibitive costs for many contribute to keeping the costs low, and also Liberians who often decide not to pursue their straddle overlapping legal systems because claims in court. Informal payments to court they are often closer to communities. officers and judges proliferate for several reasons,  Evaluate and strengthen the effectiveness of including widespread impunity. Gaps in the official the Judicial Inquiry Commission in receiving fee schedule contribute to the unpredictability of and investigating complaints of corruption cost. against judges. A possible way forward to address the issue of cost Access to justice of women, minorities, and the poor includes to: is especially impacted by high costs. The proposed  Review the appropriateness of fees levied steps, alongside the approval of the Legal Aid Bill per the fee schedule (last updated in 2015), currently pending in Parliament, can significantly in comparison to those of other countries in extend the legal protection of these categories. the region, and assess whether an update is Establishing protocols for how to systematically needed. collect and process judicial data could also help  Regulate vacuums in the existing fee schedule, reduce costs. While some data is collected on a for example, transport costs for bailiffs. quarterly and yearly basis, it was reported to often  Review the budget allocation of the judiciary to contain mistakes or be missing entirely from certain ensure that key cost components are addressed. counties. Obtaining consistent and comparable data from all counties could lead to a more efficient  Minimize cash transactions and reduce face-to- allocation and prioritization of resources. face interactions with court personnel whenever possible, for example, taking advantage of the recent rapid rise in the use of mobile payments130 to eliminate the opportunity for facilitation payments. 129. Ministry of Internal Affairs, Ministry of Justice, and Judicial Branch of Government of the Republic of Liberia. 2010. Government Consultations in Preparation for a National Conference on Enhancing Access to Justice. Report of the Proceedings. Monrovia: Government of the Republic of Liberia. 130. Annual Report of the Central Bank of Liberia, 2022. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 66 POLICY IMPLICATIONS 3.4. Establishing rules of engagement between the courts and the customary system The customary system already plays a role in Under these circumstances, one step to mitigate alleviating the backlog of the formal courts, but potential clashes between the two systems and this role could be more impactful if the rules of enhance access to justice would be to clearly engagement between the formal and customary establish the circumstances in which cases can be system were clarified and strengthened. Globally, handled by or deferred to the customary system. In multiple approaches have been used to strengthen this way, the Government could establish a set of this interface, depending on the type of relationship criteria determining when civil and criminal cases between the state and the informal system – may be appropriately handled by the customary whether it is combative, competitive, cooperative system, clarifying the blurred lines between the or complementary – and on whether the model jurisdiction of formal courts and customary justice of state recognition is one of abolition/prohibition, actors. These may include if: where the state explicitly abolishes or prohibits  Both parties voluntarily submit to the customary the informal justice system, or it is a context of full system. incorporation or limited/partial incorporation.131  The customary system is limited to a restorative It is essential, then, to be responsive of the local resolution and no punitive sanctions are conceptions of justice and understand the power imposed. structure under which this recommendation  Neither the state nor another third party has an would be implemented. In the case of Liberia, overarching interest in the case. the relationship between state and non-state justice actors is one of “limited incorporation,” as  Resort to the formal system remains an option in it entails a level of independence of the customary the event the customary system fails to resolve justice system while establishing mechanisms for the dispute.132 the oversight of the chieftaincy structure under The first criterion above is already part of the the MIA. The jurisdiction of the customary system practice of customary justice actors and would only and the rules for the referral of cases between the have to be formalized through the rules. The last formal and informal systems, however, remain point is especially important as it highlights the unclear. 131. See Swenson, G. 2018. “Legal Pluralism in Theory and Practice.” International Studies Review 20(3): 438–462. In this article, the author describes four archetypes of the relationship between the state and the informal justice systems: (1) in a combative relationship, state and non-state justice actors seek to undermine and delegitimize one another; (2) in a competitive relationship, non-state justice actors retain substantial autonomy and do not challenge the state’s overarching authority. In other words, they both respect each other’s existence but tensions between them still remain, especially where legal and procedural norms diverge significantly; (3) in a cooperative relationship, non-state justice actors still retain significant autonomy and authority. However, they accept the state’s normative legitimacy and, in general, agree to work together towards shared goals; and (4) in a complementary relationship, non-state justice actors are subordinated and structured by the state, given that the latter enjoys the legitimacy and capacity to have its rules accepted and enforced. Supra Wojkowska, E. 2006. Doing Justice: How Informal Justice Systems Can Contribute. Oslo: United Nations Development Program and Oslo Governance Center. Page 28. This model allows the informal justice structures to function relatively independently from the formal state system, while establishing mechanisms for accountability and low-level surveillance, as well as allowing for cross-referrals. 132. Supra LWG, 2009. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 67 POLICY IMPLICATIONS need for rules of engagement between the formal Answering these questions requires more clarity and the customary system. Traditional leaders on the applicable customs of each tribe, more already have concurrent jurisdiction with the courts consistency on punishments across tribes, and – by law and in practice – over minor criminal a plan to address some of the human rights matters, civil complaints, and some family matters concerns of the customary system. Although not (see Sections 2.1 and 2.2). Especially in rural areas, all the traditional practices used in the context of traditional leaders are the main source of dispute customary trials and dispute resolution processes resolution, as people prefer them to the courts that are incompatible with the country’s national and are perceived as far, expensive, and not always fair. international human rights obligations, the Office of the High Commissioner for Human Rights (OHCHR) The objective is to build mutually beneficial has declared that certain practices such as the linkages between the formal and customary use of “trial by ordeal” are in violation of these systems to harness the positive aspects of each.133 commitments.135 According to the OHCHR, these Clear, formalized rules of engagement would practices breach the prohibition against torture support the peaceful and regulated coexistence and the right to a fair trial and due process under of dispute resolution mechanisms, based on an the International Covenant on Civil and Political acceptance of the structures that already exist and Rights (ICCPR), on top of being especially harmful an appreciation of the essential work they do for to women.136 dispute resolution, with several efficiency gains for the formal courts. The customary system of conflict The perpetuation of certain harmful practices has resolution remains highly legitimate in the eyes of been enabled by specific provisions within the legal most Liberians who regularly approach the chiefs framework. In particular, the OHCHR identified the and elders to have their disputes resolved.134 Hinterland Regulations as being among the root causes of the inequalities experienced by many in Clear guidelines should be introduced on how the accessing justice.137 Because of this, and because two systems interact. Can the courts, for example, of their uncertain legal status, it recommended defer some cases to the customary system, if both that they be reviewed and harmonized with parties agree? Can a decision from a traditional Liberia’s international and national human rights leader be appealed in the courts? In which cases commitments as needed.138 should a traditional leader refer parties to the courts, and through which process? Should courts’ Establishing rules of engagement between the oversight extend to the review of customary customary and formal systems does not entail decisions or be limited to some specialist body that restricting justice seekers’ choices of the best receives and investigates complaints or monitors forum to resolve their disputes. Instead, having enforcement of these decisions? a clearer understanding of the conditions under 133. McAuliffe, P.. 2013. “Romanticization Versus Integration? Indigenous Justice in Rule of Law Reconstruction and Transitional Justice Discourse.” Goettingen Journal of International Law 5. Page 52. 134. Galvanek, J.B. 2016. Pragmatism and Mistrust: The Interaction of Dispute Resolution Mechanisms in Liberia - Liberia Case Study Report. Berlin: Berghof Foundation. 135. Supra UNMIL and OHCHR, 2015, page 1. Trial by ordeal is a traditional form of trial whereby an accused person is subjected to a dangerous or painful physical test to determine his or her alleged guilt or innocence. There are many forms of trial by ordeal, the most well-known and lethal of which is called sassywood. 136. Supra Rawls, 2011. 137. Supra UNMIL and OHCHR, 2015, page 13. 138. Supra UNMIL and OHCHR, 2015, page 1. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 68 POLICY IMPLICATIONS which citizens can resort to each mechanism will  Inventory on the volume and type of disputes empower them to make more informed decisions, that are solved through each system. particularly in the case of women and other  Clarifying the blurred lines between the marginalized populations. An obscure interface jurisdiction of formal courts and that of may lead to predatory forum shopping, mostly customary justice actors. to the benefit of people with political and socio-  Clarify the instances in which cases can move economic influence. from one system to the other. Building on the efforts that started with the 2010  Establish a process by which cases move from Gbarnga Conference, possible steps to establish one system to the other. rules of engagement between the two systems Two steps are preconditions for the possibility include: of establishing rules of engagement between  Create a committee, following the example of the two systems. First, the standardization of Kenya, to bring together the voices of traditional processes in the customary system and, second, leaders, government officials, members of the the documentation of customary rules. These are judiciary, lawyers, citizens, and other relevant addressed in the next two sections. stakeholders.139  Clarify the validity of the Hinterland Regulations and amend them as needed to ensure their compliance with international and domestic human rights standards. 3.5. Standardizing processes in the customary system and introducing procedural safeguards Standardization refers to introducing uniform Procedural aspects to be regulated should include processes across tribes. It does not extend to stricter and enforceable rules on the appointment creating uniform rules. This would likely undermine of the chiefs. As discussed in Section 2.1a, chiefs the effectiveness of traditional leaders, as their should be elected, but such elections have not success is largely based on applying socially shared been held since the start of the conflict, and norms and practices, and the enforcement of their chiefs are instead appointed by the MIA. In time, decisions is enabled by community acceptance this may compromise the legitimacy of the chiefs of these practices and of the leaders themselves. in the eyes of their tribes, eventually decreasing Standardization of processes, however, is essential the effectiveness of the customary system. Other to achieve fruitful engagement between the procedural safeguards that can be considered for customary system and the statutory one. standardization include rules of conduct for the 139. Kenya’s National Steering Committee on the Implementation of the Alternative Justice Policy (NaSCI-AJS) is a multistakeholder committee that was launched by the former Chief Justice David Maraga in December 2020 for a five-year term. The mission of the NaSCI-AJS is to spearhead the implementation of the AJS Policy. The Committee is comprised of 26 members representing different stakeholders, including state and non-state actors, academia, and professional bodies, among others. See Government of Kenya, National Steering Committee on the Implementation of the Alternative Justice Policy, official website: https://ajskenya.or.ke/about-us/. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 69 POLICY IMPLICATIONS chiefs, minimum standards of rights protection, addressed in future legislation, once regulated basic rules of evidence admissibility, sentencing coexistence is in place. It may be advisable for guidelines, protocols for record keeping, and rules formal courts to be allowed to hear such appeals on making outcomes publicly available.140 when they raise questions of law, but not when they only raise questions of facts.142 This would Establishing some form of written records is limit opportunistic forum shopping and lessen the necessary for effective engagement between the burden of the formal courts. formal and customary systems. These records should have basic details that are sufficient for an Possible steps in the standardization of processes outsider to review the facts and the decision in a in the customary system include: dispute. This initiative may include training in case  Develop an engagement strategy with traditional recording and reporting, and can be supported by leaders and members of the communities, paralegals in communities where illiteracy rates are possibly through the Committee mentioned in high. In any case, measures related to the recording Section 3.4. and publication of customary decisions should take  Conduct trainings in case recording and into consideration the social and security factors in reporting with customary authorities. play, always ensuring that the privacy of disputants  Support the establishment of protocols for case is protected, particularly in the case of vulnerable recording, including the use of standardized groups.141 templates to speed up the process. Having standardized processes and basic  Consider developing rules of conduct for the procedural safeguards in place opens the door to chiefs, minimum standards of rights protection, the future creation of state review mechanisms. basic rules of evidence admissibility, and Whether the formal courts should be given the remit sentencing guidelines to hear appeals from the customary courts can be 140. IDLO. 2019. Practitioner Brief. Navigating Complex Pathways to Justice: Engagement with Customary and Informal Justice Systems. Rome: International Development Law Organization. 141. Supra Harper, 2011, pages 44 and 53. 142. Wourji, T.W. 2012. “Coexistence between the Formal and Informal Justice Systems in Ethiopia: Challenges and Prospects.” African Journal of Legal Studies 5, 269-293. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 70 POLICY IMPLICATIONS 3.6. Documenting customary law At present, each of Liberia’s 16 ethnic groups have between the customary and statutory courts, large different customary laws. Judges, especially at the population shifts have brought unfamiliar groups Supreme Court level, are not knowledgeable about into proximity, or communities are no longer these laws, which have never been documented. homogenous.144 This is not the case in Liberia, As a result, they cannot reliably reference them suggesting that documentation may be more in court. Documenting the traditions of each tribe appropriate. should be considered if more integration is to Documentation efforts must include certain be achieved between the systems. The previous safeguards in order to prevent the crystallization of suggestion addressed the standardization of discriminatory norms and power imbalances within procedural aspects that is necessary for more the customary justice system. Just as it happens integration between the two systems. This one with codification, documentation raises the addresses the documentation of substantive question of whose version of customary law should aspects. be considered.145 This risk may be mitigated by Note that a distinction should be drawn between ensuring the participation of community members documentation and codification, the latter implying in the documentation process, and by creating a process of reducing the corpus juris to the form mechanisms for the endorsement and periodic of enacted law which requires, by definition, a reassessment of documented customary rules. legislative process.143 Documentation, instead, Namibia provides a good example of a successful describes (does not prescribe) key customary documentation process through the use of “self- principles to guide dispute resolution. There are statements” or ascertainments, which consist of strong arguments against codification. Customary written documents that are produced and used by law is living and flexible, changing as circumstances communities regarding substantive and procedural change. To codify it would carry the risk of customary rules.146 In 1993, traditional leaders stagnating it over time, in addition to losing the from six communities in Namibia met under the central role played by reconciliation – more than auspices of a Customary Law Workshop in order by impartial application of the law – in customary to harmonize their customary laws. Among other dispute resolution. The latter is more concerned issues, the leaders were concerned with a practice with finding a solution between the parties that whereby the relatives of a deceased member of the both respect, so that a new equilibrium can be community chased the widow off her land and back created and the harmful effects of the dispute on to her matrilineal family. During this workshop, the the community may be mitigated or erased. leaders agreed that the widows (i) should not be Codification is generally considered more suitable excluded from their lands or homes and (ii) should when customary principles have remained constant not be made to pay for such land. These agreements over long times, there already is a formal linkage were documented in “self-statements.” The 143. Bennett, T.W. and T. Vermeulen. 1980. “Codification of Customary Law.” Journal of African Law 24: 206-219. 144. Supra IDLO, 2019. 145. Supra Harper, 2011, page 43. 146. Supra Harper, 2011, page 44. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 71 POLICY IMPLICATIONS practice of documenting customary rules through integration of the two systems, such as harsh self-statements was later endorsed by the Council corporal punishments. This documentation effort of Traditional Leaders as a good practice, prompting can also clarify jurisdiction in ambiguous areas, other communities to initiate similar processes.147 something that can then be codified. This would be an important step towards the formal recognition Documenting customary law is also important to of customary laws and the achievement of a model remove some of the discretion that chiefs have that respects the autonomy of customary justice and exercise that leads to harsher decisions for actors through its incorporation and coexistence women and minorities, and to potentially address with the state justice system. other human rights concerns that hinder the 147. Supra Harper, 2011, page 44. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 72 IMPLICATIONS FOR JUSTICE WORK IN THE REGION 4. IMPLICATIONS FOR JUSTICE WORK IN THE REGION The evidence collected and analyzed for the weak institutions and contested authority.148 purposes of this study points to a dominant feature Previous studies on justice reform in dual-system of the justice system in Libera – its duality – that countries have shown that customary law handles is common to many African jurisdictions. This a significant share of disputes, with numbers duality is especially pertinent in the post-conflict averaging between 80 and 90 percent of cases.149 environments of fragile and conflict states with 148. Fearon, J. D., and David D. Laitin. 2004. “Neotrusteeship and the Problem of Weak States.” International Security 28 (4): 5–43. 149. Albrecht, P., and Helene M. Kyed. 2010. Justice and Security: When the State Isn’t the Main Provider. Copenhagen: Danish Institute for International Studies Policy Brief. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 73 IMPLICATIONS FOR JUSTICE WORK IN THE REGION Further, these studies have grappled with this The situation is made untenable by the fact that duality and generally leaned toward finding ways women and minorities are skeptical of formal courts to improve the formal system so that more cases and prefer to seek justice in customary courts are resolved there rather than in the customary despite knowing that they are likely to lose their system. The analysis suggests that approaches that case. Women have little trust in the formal justice involve the traditional or non-state justice networks system, owing to a variety of factors including high of authority and legitimacy have the greatest costs and complex procedures. Most women come potential to collaboratively progress the judicial from poor rural households and cannot afford state-building process.150 Thus, strengthening to pay high legal fees or hire a lawyer. Therefore, both systems might be a more fruitful direction to most of them trust customary courts for dispute deliver justice for all, while recognizing the different resolution. The ones who do not trust customary challenges and opportunities that legal pluralism courts cite gender-blind legal practices arising out can pose and proposing strategies to improve of outdated cultural norms as their reason. The justice outcomes for users within this context. exclusion of women from the customary councils hampers the gender-sensitivity of their rulings. It has been claimed that codification of customary Thus, the prevalence of customary law leaves laws, a common approach followed across women in Liberia with few options to exercise their countries, might not be as effective in leveraging legal rights. Studies in other African countries find the power of traditional systems of justice unless that women face similar limitations.152 more contextual approaches to its enforcement are assessed.151 Moreover, it is equally important In working with the customary and formal systems, to guard against the enabling effects of customary the scope of actors is multiplied and the needs for systems that could promote discriminatory public discussion and communication multiplies traditional gender roles, exclusion of minorities, too. The JUPITER methodology is tuned towards and post-conflict traumas generated by the violent understanding the interplay between these two history of Liberia and other countries with history systems in the Africa region, and its implementation of violence. Collaboration with the formal justice in other African countries may yield further insights system, instead of isolation, can enhance the on how the overall justice system can deliver better capacity of customary justice actors and ensure results for everyone. their conformity with domestic and international human rights standards. 150. Supra Swenson, 2018, page 438. 151. Supra Bennett and Vermeleun, 1980. 152. Sinha, R., and Simeon Djankov. 2023. “The Halting Legal Gender Rights in Burundi.” Financial Markets Group Discussion Paper 883. London: London School of Economics. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 74 ANNEX A Annex A JUPITER Methodology and its Application to Liberia JUPITER is an initiative of the Governance Global Practice (GGP) of the World Bank Group (WBG). It is designed to be a universally applicable country-based framework for measuring the effectiveness of a country’s judiciary. Its goal is to use data to identify strengths and weaknesses around key pillars of judicial effectiveness, and to serve as an entry point for operational teams to develop a practical sequence of reform and capacity development actions in WBG operations. The output of the assessment is a study that provides the analytical underpinning for dialogue on justice reform and helps prioritizing efforts according to the country’s needs. JUPITER benchmarks effectiveness in service delivery in three areas: access to justice, efficiency, and quality. Effectiveness refers to the ability of a judicial system to qualitatively match the demands of justice in a timely and cost-effective manner. These areas were selected based on an extensive literature review covering more than 200 peer-reviewed academic papers in leading legal and economics journals (Annex C). One of the innovations of JUPITER is its attempt to distinguish between the legal framework and its application in practice. This distinction is particularly important in jurisdictions like Liberia where customary law prevails in several types of disputes and in large regions of the country. Throughout this data collection tool, questions about the law are matched with questions about its application. The data used for a JUPITER assessment is collected through a combination of desk research (readings of the law), administrative data, and data collected by staff of the WBG through interviews with government officials, judges, lawyers, and court users. Data is further collected through desk research, mission travel, in-person interviews, and phone interviews. The methodology can be replicated in successive assessments, giving a summary of changes over time as well as providing a pool of information that contributes more broadly to research and analysis on judicial effectiveness. Beyond WBG operational teams, the primary audience for the JUPITER Report comprises policy makers, government officials, heads of key agencies, civil society organizations, researchers, and development partners. This Annex provides an in-depth overview of the JUPITER methodology (Section A.1) and details how this methodology was deployed in Liberia (Section A.2). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 75 ANNEX A A.1 JUPITER Methodology This section provides details on five aspects of the JUPITER methodology: questionnaire design (Section a), data sources and data collection process (Section b), variable categories (Section c), variables description (Section d), and data management and review (Section e). a. Questionnaire Design To collect the data, the team used a questionnaire with 152 questions and 81 sub questions, for a total of 233 questions. The questionnaire is divided into three parts, following the main determinants of judicial effectiveness: access, efficiency, and quality – see Annex C for a literature review on the selection of these categories. The total universe of questions is referred to as the “Master Survey.” Between November 2022 and February 2023, the Master Survey was thoroughly peer-reviewed by 15 experts from the WBG and academia. Throughout the questionnaire, questions on the legal framework are matched with questions on its practical application. For example, Q.4 tests whether there is a legal requirement to make all judgments public, while Q. 6 tests what share of the court(s)’ judgments are in fact made public. For the purposes of this data collection exercise, the term “legal framework” refers to the body of instruments (laws, acts, regulations, etc.) that are of mandatory application. Guidelines, court circulars and internal court documents are not included if they are self-imposed by the courts or are for “recommended” use only. Questions by law are yes/no questions, with an additional field to provide a reference to the exact legal basis. Questions in practice are of three types: yes/no, multiple choice, and quantitative. Multiple choice questions elicit the respondent’s opinion on how frequently an event takes place and provide respondent with 4 answer options: (1) less than 25 percent of cases; (2) between 25 percent-50 percent of cases; (3) between 50 percent-75 percent of cases; and (4) more than 75 percent of cases. Q.25, for example, tests the level of implementation of policies facilitating equal access to justice for persons with disabilities and provides four answer options: less than 25 percent of courts; between 25 percent-50 percent of courts; between 50 percent-75 percent of courts; and more than 75 percent of courts have such policies in place. Quantitative questions are filled with administrative data provided by the court administrators. Administrative data was the preferred source of practice data, whenever feasible. Q.68 and Q.69, for example, test the number of incoming cases in first and second instance civil courts. JUPITER focuses on civil, commercial, and administrative justice, not on criminal justice and prosecution offices. In terms of institutional coverage, there are numerous state and non-state actors involved in the provision of justice, and their functions vary widely across countries. To simplify matters, this version of JUPITER focuses on three institutions – the Judiciary, the MOJ, and Legal Aid Services (highlighted in red in Figure A1). Other institutions and services such as ADR or legal aid offered by nongovernmental organizations (NGOs) or other organizations) are captured only for their effects on the key institutions’ performance. During the pilot of JUPITER in Liberia, it became apparent that it is important to reflect customary law and institutions in the assessment whenever these are prominent providers of dispute resolution services. In Liberia, for example, focusing only on improvements to the formal system would lead to excluding nearly 70 percent of the justice users, as customary actors remain the preferred venue for solving disputes in the country. For Liberia, the team relied on an extensive body of data from various sources on the effectiveness of the customary system. In the future, the JUPITER questionnaire may include a module on customary justice. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 76 ANNEX A >>> Figure A1: Institutional focus of JUPITER Independent Judiciary Executive Legislative agencies Ministry of Legal Aid Institutions Justice Centers Courts State Parliament Law Ombudsman Justice Enforcement Functions: Drafting, Human Rights passing and Commission Other communicating Court- Ministries laws Annexed and Anti- ADR Regulatory corruption Agencies agency Customary law institutions Institutions Non-State (Customary, Religious and Traditional Courts) Civil society and private sector (ADR providers, Legal Aid NGOs, Bar Association, etc) Source: JUPITER Concept Note, World Bank. WBG work in the justice field shows large variations in the structures, internal processes, resource endowments, and country contexts shaping each system’s effectiveness and the needs of the population it serves. Some differences are reflected in the traditional civil law vs. common law dichotomy, but other national characteristics of relevance include the relationship between the judiciary and other branches of government, or whether judicial processes are based on an adversarial or inquisitorial system. The purpose of the JUPITER metrics is to establish whether there are ways for the government to improve effectiveness within the existing system, regardless of its tradition. In that sense, the focus on actual service delivery and implementation is an important mitigant when comparing different legal systems. From a technical standpoint, the questionnaire was generated through Microsoft Word. This was preferrable to online survey instruments as many countries, including the pilot country, Liberia, may lack internet connectivity and technological literacy. A Microsoft Word questionnaire allows for printing and collecting data on paper. The Developer Option of Microsoft Word allows the extraction of data directly into Excel, minimizing the opportunity for human error. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 77 ANNEX A b. Data Sources and Data Collection Process Data collection is done through a combination of readings of the law, administrative data, and interviews with government officials, judges, lawyers, and court users. The questions in the JUPITER questionnaire cannot be answered in their entirety by one category of legal professionals. Most questions are designed for lawyers with expertise in civil law, commercial law, administrative law, civil procedure, administrative procedure, and civil litigation. The remaining questions require the input of government officials, judges, and users. Questions requiring the input of the government include questions related to the Judiciary’s budget, for example. Questions requiring the input of judges relate to internal court processes, such as the availability of a case management system. Questions requiring the input of users include those related to the individual’s perception of the access, efficiency, and quality of the system. For this reason, questions from the Master Survey were divided into four shorter questionnaires, one per group of respondents—lawyers, government officials, judges, and users. Whenever possible, special care was placed on having at least two types of respondents for each question. Table A1 shows the total number of questions per respondent. Information provided by the respondents is complemented with administrative data and an in-depth study of laws, regulations, and publicly available information. If answers by local experts differ, inquiries continue until the data are reconciled, including through locally based WBG staff conducting interviews on the ground. The median is used to aggregate numeric answers. Datasets produced by other organizations may also be used to corroborate respondents’ answers and for analysis. The user questionnaire is complemented by five questions that are asked to randomly selected users during field visits to the courts. These questions include: 1. How long did it take you to come to court today, i.e., how far did you have to travel? 2. How many hours did you spend at the court today (or last time there if they had just arrived)? 3. What has been the most frustrating part of your interactions with the court? 4. How much money do you think other people offer clerks, bailiffs, and court officers to move the case along (nominal value)? 5. How much money do you think other people give judges to win a case (nominal value)? >>> Table A1: Number of questions per respondent type Respondent type Number of Questions Lawyers 137 Government (i.e., MOJ and MOF) 85 Judges and the Judiciary (e.g., Office of the Chief Justice) 127 Users 53 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 78 ANNEX A c. Variables Categories JUPITER has 373 datapoints, grouped in three pillars: access, efficiency, and quality (Figure A2). The Access to Justice Pillar measures whether individuals have equal access to the legal system. The Efficiency Pillar benchmarks the ability of courts to deliver justice in a timely and cost-effective manner. The Quality Pillar examines the quality of decisions in terms of inputs, such as the selection process of judges, and outputs, such as appeal rates and the consistency of decisions. Each pillar has five sub-pillars. The pillars and sub-pillars were determined based on the literature review in Annex C. >>> Figure A2: JUPITER’s substantive focus GROWTH judge ion of Tran s ificat sp aren es al Qual Pr o co iti ici ox u tiv ud t cy im rt ac a-j ity tr Ex Eq u l (ge al ac ia nd ces dic er. s Ju pay ..) ACCESS QUALITY Legal l aid/cost Appeal/reversa rates JUPITER Con all sis Sm ms dec tency clai isio o ns f ce ran EFFICIENCY IC T ea te Cl ra ma ad cas ge of nag Cas ment Disposition elo e e time A EQUALITY Source: JUPITER Concept Note, World Bank. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 79 ANNEX A d. Variables Description The Access to Justice Pillar contains 103 questions, equivalent to 185 datapoints, and comprises five sub-pillars: (1) transparency; (2) proximity to court; (3) equal access; (4) legal aid and cost; and (5) small claims court and procedure (Table A2). Verbatim questions can be found in Annex B, Table B1. >>> Table A2: Access to Justice sub-pillars Sub-pillar Questions (#) Datapoints (#) Transparency 42 81 Proximity to court 3 4 Equal access 20 40 Legal aid and cost 28 42 Small claims court and procedure 10 18 Total 103 145 The transparency sub-pillar measures the level of public knowledge about the judicial system and, specifically, the legal framework, previous judgments, and general information about the courts. For the purposes of this pillar, “public” means that documents can be accessed without a fee and not upon request, while “publicly available” means that documents are made public with an additional step such as a request to an office, payment of a fee, etc. Transparency of the legal framework is benchmarked through practice questions on the availability of a centralized – operated, managed, and administered by a single government unit – and comprehensive website of all national laws and regulations in the country’s official language. If such a website exists, information is solicited on the percentage of laws and regulations available, the presence of draft bills, the integration of amendments and repeals, the timeliness of changes, the openness of the website, and its searchability. If such a website does not exist, information is solicited on whether laws and regulations are published in a manner that makes it possible to consult the latest consolidated version for free – for example, in a gazette, newspaper, ministries’ webpages, or private providers. Respondents are also asked how difficult it is to stay abreast of the legal framework—it is considered difficult whenever consolidated versions of updated laws and regulations are either not available or very delayed, and easy when they are immediately available in most cases. They are also asked how consistent and precise the legal framework is—it is considered consistent and precise if laws are well drafted, do not create ambiguity that can be exploited by the parties, and conflicting laws are repealed in a timely manner. Transparency of court judgments has two questions by law, benchmarking whether there is a legal requirement to make all judgments public and who is responsible for the publication. The first mirroring practice question tests what share of all judgments is in fact public – online, or in a manner where anyone can access them without submitting a request or paying a fee – for first instance courts, appellate courts, the highest court, first instance administrative courts, and second instance administrative courts. The second mirroring practice question tests, for the same courts, what share of judgments is publicly available – online, or otherwise, but access must be requested and/or paid, for example through the purchase of the official gazette or by requesting a copy at the court – if judgments are not public. The last practice question tests whether judgments are made public or publicly available in a timely manner. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 80 ANNEX A Transparency of court information tests how easy it is to find information about the courts and their functioning – answer options are “mostly available” and “mostly unavailable” – and how accurate that information is, with answer options as “mostly accurate” and “mostly inaccurate.” Answers are sought for the following categories of court information: court location, court hours and days of operation, basic information on how to file a claim, basic information on common types of cases, lay documents and guides to enable self-representation, information on court fees, and information on legal aid. The proximity of courts sub-pillar benchmarks the availability and geographical distribution of first instance civil courts, including courts of general jurisdiction, specialized courts, and small claims courts, if different. Respondents are asked to confirm a list of courts prepared by the team through publicly available information and Google Maps. Further, the questionnaire investigates the perceived accessibility of these courts in terms of urban and rural divides. The respondents are asked to characterize the accessibility of the courts in their country to people in urban regions as compared to those in rural regions. This aspect is measured on a four-point scale, ranging from “equally accessible to people in all regions” to “much more accessible to people in urban regions than those in rural regions.” If the courts are found to be more accessible in urban regions than in rural regions, this could indicate a potential barrier to justice for rural populations, which may lack the same level of access to legal services. Respondents are encouraged to provide additional comments to elaborate on their selection, allowing for a more nuanced understanding of accessibility issues. The equal access sub-pillar measures the ability of all to have access to court services, including women, persons with disabilities, non-native speakers facing linguistic barriers, and individuals from varying socio- economic classes. For women, the questionnaire focuses on both the legal rights granted to them and their real-world implementation. Respondents are asked to confirm whether women have the same rights as men to file a claim with the court and whether their testimony carries the same evidentiary weight. The questionnaire also explores the practical realities of these legal provisions, such as potential societal stigma and the likelihood of women bringing forward and winning civil cases for sexual harassment. Respondents are also asked to rate the overall accessibility of courts for women. For persons with disabilities, the questionnaire examines their legal recognition and treatment within the court system. Respondents are asked about the legal provisions in terms of their right to legal capacity, equal standing in courts and tribunals, and equal opportunities to testify. The questionnaire also investigates whether courts are legally required to facilitate equal access for persons with disabilities and the level of implementation of such policies in practice. Respondents rate the overall accessibility of courts for persons with disabilities. For non-native speakers, the questionnaire investigates legal requirements for translation and interpretation services in civil cases. Respondents are asked about the availability of these services for hearings and documents, the likelihood of people receiving these services, and whether they are provided free of charge for indigent people. Respondents rate the overall accessibility of courts for persons with linguistic barriers. In each of the above areas, the questions in the sub-pillar probe both the legal framework and its practical application, recognizing that equal access to justice is determined not only by law but also by other factors, such as the availability of resources. Finally, for people of different socio-economic classes, the questionnaire asks respondents to characterize the accessibility of courts. This question aims to identify whether there are barriers in place that might disproportionately affect the poor, potentially compromising their ability to access justice. The legal aid and cost sub-pillar measures the availability of legal aid – defined as the free provision of assistance by the government in non-criminal cases to people who are unable to afford legal representation – and rules related to court fees. For the legal aid segment, the questionnaire looks at whether a dedicated law on legal aid exists and if government-funded legal aid is available. Other providers of legal aid, such as NGOs, bar associations, or IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 81 ANNEX A universities, are also taken into consideration. The questionnaire seeks information about the regulation of legal aid, including criteria for eligibility, processes for securing it, and the duties of providers. Respondents are also asked about the authorities in charge of administering and monitoring legal aid services. The segment further explores the applications of government-funded legal aid, such as representation in court, legal advice before proceedings, and payment of court fees. It investigates the approval process for legal aid requests and the number of requests received and approved. It also investigates the evidentiary burden on those seeking legal aid, the availability of providers, and the likelihood of obtaining legal aid when eligible. Additionally, it probes the time standards and actual decision times for legal aid requests and the budget allocation for government-funded legal aid. The court fees segment of the questionnaire investigates whether court fees are set by law and if detailed information about these fees is readily available to the public. It asks whether court fees are retained by the Judiciary and if litigants are generally required to pay a court fee to initiate a proceeding. The questionnaire explores the likelihood of the winning party receiving full reimbursement of court fees and attorney fees, and whether court fees are set at a level that deters individuals and businesses from filing a claim. It also investigates the existence of a court fee waiver program with clear eligibility criteria and the likelihood of an eligible candidate obtaining such a waiver. Finally, it asks for the total number of fee waiver requests received and approved. The small claims court and procedure sub-pillar measures the process by which the judicial system handles claims below a legally established monetary value. The sub-pillar starts by inquiring whether there are small claims courts or divisions and/or a fast-track procedure for small claims. If such a system exists, it asks for the types of cases that fall under this court or procedure’s jurisdiction. To understand the accessibility of the small claims system, further investigation is done on whether it is legally possible to file small claims orally or without legal representation. It also seeks to gauge the practical difficulty of using the small claims court or procedure without legal representation, asking respondents to rate the ease of use based on the average citizen’s background and education level. The availability of standardized templates to file small claims is also sought. To evaluate the efficiency of the small claims system, the sub-pillar inquires whether there is a legally established time standard for resolving small claims and what the average resolution time is in practice. The sub-pillar also addresses the cost-effectiveness of the small claims system. It asks if there is a dedicated fee schedule for small claims and whether the court fees are set at a level that might deter individuals and businesses from filing a claim. The Efficiency Pillar benchmarks 74 questions, equivalent to 99 datapoints, and comprises five sub- pillars: (1) clearance rates; (2) age of caseload; (3) disposition times; (4) case processing and case management; and (5) information and communications technology (ICT) (Table A3). Verbatim questions can be found in Annex B, Tables B2.1 and B2.2. The clearance rate sub-pillar seeks administrative data on the number of incoming and resolved cases for the past three years, allowing for trend analysis and the identification of any significant changes or anomalies. The number of judges is also sought to understand the resources available to the judiciary and provides context for the rest of the information collected. It also asks for the number of female judges to capture insights into gender representation within the judiciary. The age of caseload sub-pillar seeks administrative data on the number of cases that have been pending before the court for more than three years. Data is sought for the first instance civil courts, which are often the first point of contact for individuals seeking redress in civil matters; second instance civil courts, which are appellate courts for civil matters; highest court of general jurisdiction, typically the supreme court or the highest appellate court; first instance administrative courts, which deal with disputes involving public authorities or administrative acts; second instance administrative courts; and the highest court of administrative jurisdiction. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 82 ANNEX A >>> Table A3: Efficiency Sub-pillars Sub-pillar Questions (#) Datapoints (#) Clearance rate 30 30 Age of caseload 6 6 Disposition time 12 12 Case processing and case management 8 15 ICT 18 36 Total 74 99 The disposition time sub-pillar seeks administrative data on the number of pending cases at end of each of the past three years for both civil and administrative courts at the first and second instances. Based on the data collected under the previous three pillars, the team calculates the following metrics, using the methodology set forth by the European Commission for the Efficiency of Justice – CEPEJ (Table A4). >>> Table A4: Metrics on court efficiency Term Definition Formula Clearance Rate (CR) Relationship between the new cases and Resolved Cases CR(%) = x 100 completed cases within a period. Incoming Cases Case Turnover Ratio (CTR) Relationship between the number Resolved Cases of resolved cases and the number of CTR = Unresolved Cases at the end unresolved cases at the end of a period. Disposition Time (DT) Measure of how quickly the judicial system 365 DT (days) = (of the court) turns over received cases. CTR Source: European Commission for the Efficiency of Justice, 2018. The case processing and case management sub-pillar measures case processing by referring to the handling of individual cases, while case management refers to the overall effort to control how cases in the aggregate move through the court system. Both can be accomplished manually, automatically, or with a combination of the two. The assignment of cases within the courts is a key aspect of case management, and its transparency is benchmarked through questions on legal provisions for the random assignment of cases, and on rules in place to prevent potential abuses of the system. The practice is also tested by trying to understand how the process is carried out, with a focus on how often the assignment process is abused, as reported by users and NGOs, among others. The questionnaire also inquires on how easy it is for parties to influence the assignment of their cases. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 83 ANNEX A The Case Management Information System (CMIS) sub-pillar examines whether there is a single electronic CMIS used in all courts, or if multiple systems exist, and to what extent they are interoperable. In cases where no electronic system exists, the questionnaire seeks to understand if manual data collection at the court level tracks incoming and disposed cases. Also probed is the extent of functionalities available to judges and lawyers through the CMIS. For judges, the questionnaire assesses the system’s capacity to automatically generate hearing schedules, send and receive notifications, track case status, manage case documents, view court orders and decisions, and assist in writing judgments. For lawyers, it assesses whether they can access forms, send and receive notifications, track case status, manage case documents, view court orders and decisions, and file documents with the court through the CMIS. The ICT sub-pillar refers to the use of information and communications technology during court proceedings. The questions in the sub-pillar explore the level of access to and use of technology among judges and court staff, the digital infrastructure available in courts, and the scope of electronic procedures permitted by law and practice. One of the key areas this sub-pillar examines is the percentage of judges and court staff who have and use computers for drafting documents and entering case data. It also evaluates the extent to which courts are equipped with internet and intranet facilities, highlighting the level of connectivity within and between courts’ systems. The sub-pillar delves into the legal provisions and practical utilization of electronic procedures. These include the electronic filing and service of initial complaints and the filing of requests for legal aid. For each of these procedures, the questionnaire identifies whether there is a legal requirement to follow-up with a paper copy, and it assesses the percentage of cases or requests that are filed electronically in practice. The questionnaire also examines the treatment of small claim procedures and the admissibility of evidence filed electronically. It assesses whether small claims can be filed electronically by law and what percentage of small claims are filed electronically in practice. It further investigates whether evidence filed electronically is legally admissible and the percentage of evidence filed electronically in practice. The potential usage of remote or virtual hearings is another important element of the ICT sub-pillar. The questionnaire identifies whether hearings can be conducted remotely by law and what percentage of hearings are conducted remotely in practice. The Quality Pillar contains 56 questions, equivalent to 89 datapoints, and comprises five sub-pillars: (1) qualification of judges; (2) extra-judicial activities; (3) judicial pay; (4) appeal rates and reversal rates; and (5) consistency of decisions (Table A5). Verbatim questions can be found in Annex B, Table B3. >>> Table A5: Quality Sub-pillars Sub-pillar Questions (#) Datapoints (#) Qualification of judges 17 21 Extra-judicial activities 11 25 Judicial pay 16 23 Appeal rates and reversal rates 4 4 Consistency of decisions 8 16 Total 56 89 IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 84 ANNEX A The sub-pillar on the qualification of judges examines the requirements to become a judge, as well as how these reflect on the quality of decisions. First, the sub-pillar considers the legal requirements for the appointment of judges. This can encompass a range of qualifications, such as the necessity of a law degree, a minimum number of years of experience in the legal field, and passing a bar exam or a judge- specific examination. The questionnaire also identifies whether these legally established criteria are consistently followed in practice. To gauge the competence and integrity of judges, the sub-pillar asks respondents to evaluate the knowledgeability and honesty of judges across various courts. This includes first instance courts, appellate courts, the highest court, and first and second instance administrative courts. The responses provide insights into the perceived ability of judges to correctly apply the law and resist taking bribes or other incentives. This sub-pillar’s questions also focus on the quality of judge- rendered decisions. Respondents are asked to assess the quality of judgments across different court instances, considering factors such as grammatical errors, precise and consistent application of the legal framework, technical errors, assessment of evidence, and whether they address essential arguments. The extra-judicial activities sub-pillar refers to employment of judges outside of the judiciary, which can be of political or non-political nature. Political activity refers to any activity that is directed towards the success or failure of a political party, candidate for political office or partisan political group. This may include employment in political offices, participating in political campaigns, volunteering on a political campaign, manifesting political opinions, and serving on an electoral commission. The sub-pillar addresses a range of concerns including ethical oversight, temporary political employment, and other non-judicial work activities. The questionnaire starts by ascertaining if an institution or body exists to provide opinions on ethical questions related to judges’ extra-judicial conduct. If such an institution exists, its composition is investigated to understand the diversity of perspectives within the body. A significant concern for judicial quality is the temporary employment of judges in political offices, and the questionnaire explores the safeguards in place to manage such situations. Beyond political offices, the sub-pillar investigates whether judges can combine their judicial work with other activities such as teaching, research and publication, non-remunerated membership in organizations, remunerated service on boards, and roles as arbitrators or mediators. If these activities are permitted, the questionnaire further investigates whether any safeguards are in place during such employment. Respondents are asked to evaluate how often judges engage in these activities and whether such engagement interferes with their judicial duties or undermines their independence, integrity, or impartiality. The judicial pay sub-pillar examines how the pay of judges compares to that of other professionals with comparable qualifications. It begins by asking if the law regulates judges’ remuneration by position or grade. If remuneration is not regulated by law, the questionnaire inquires who decides on it and what criteria are used. Next, transparency of judicial salaries is explored. The questionnaire asks if the law mandates the publication of judicial salary schedules and if these schedules are in fact published in practice. To gather more detailed information on salary levels, the sub-pillar requests the yearly salary of a first-instance judge with 10 years of experience, the Minister of Justice, and a partner in a local law firm in the last year. These data points can provide a comparative perspective on judicial salaries within the wider context of professional compensation in the country. Furthermore, respondents are asked about variations in salary among judges in comparable positions. The sub-pillar concludes with questions about the budget of the largest first-instance civil court and the number of judges serving in it. Additionally, it requests specific salary figures for both male and female judges at the beginning of their career in first- instance courts, and for judges of the Supreme Court or highest appellate court. The appeal and reversal rates sub-pillar measures the percentage of first instance decisions that is appealed to a second instance court in both civil and administrative cases, and the percentage of decisions that is reversed on appeal (sometimes also referred to as abolishment rate), respectively. This rate could indicate the accuracy and quality of first-instance court decisions. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 85 ANNEX A The consistency of decisions sub-pillar measures to what extent similar cases are treated consistently. The first question investigates whether judicial decisions are a source of law. If they are, the subsequent question probes deeper into the mechanisms in place to maintain consistency in case law by asking whether only decisions from the highest court constitute such a source, to assess the role of the highest court in shaping the jurisprudence of the country. Whether there is a requirement for courts to state and motivate departures from previous case law, and how often this happens in practice, is sought next to reveal how much weight is given to previous decisions and the degree to which judges are required to justify deviations from established case law. The sub-pillar also explores the mechanisms available for the highest court to ensure consistency in case law across lower courts. These can vary from advisory opinions of general application to obligatory decisions relevant only to a specific case or to all courts. The questionnaire concludes with exploring whether there are legal sanctions for lower courts that do not decide consistently with case law and, if so, how frequently these sanctions are imposed. This provides an indication of the measures in place to ensure judicial consistency and the extent of their enforcement in practice. e. Data Management and Review Questionnaires are emailed to potential respondents from all categories. Once these are filled out by the respondent and sent back to the team, they are stored in a WBG shared folder. Personal respondent information includes first and last name, place of business and contact information. For users approached at the courts, the team records only their first name, age, and gender. Personal data is treated in compliance with WBG policies. Extensive follow-ups through email and phone calls are done once questionnaires are received, and a record of these follow-ups is saved in the shared folder. The team also saves a copy of all laws and regulations that are relevant to the questionnaire. The team follows the same protocol for storing data received from government officials (regarding administrative data, budgets, etc.), other development partners, if applicable, and desk research. When data is collected through in-person interviews, the team drafts meeting minutes. Records are kept of every piece of information received by respondents or collected independently by the team through desk research. Once all the data is received, each questionnaire is exported directly to Excel for data coding (“Master Coding Sheet”). Data coding is the process whereby the JUPITER team (i) compiles information received from experts, interviewees, laws, and other valid sources, (ii) files it in the Master Coding Sheet, (iii) verifies to validate information received, and (iv) processes it into a median answer. Follow-ups and information collected during in-person interviews are also incorporated in the Master Coding Sheet, alongside the relevant legal provisions and pertinent desk research. Numerical and practice estimates are coded through Excel formulas calculating the median of all valid contributor responses. Legal or regulatory estimates are coded by the team’s review of the applicable legal instruments supported by the interpretation of local experts. The team has taken rigorous and systematic steps to ensure that coding is based on the composite review of multiple perspectives. Thus, the median answer to any question is not merely a matter of reporting what officials convey but relies on a juxtaposition of such claims with the accounts of many key witnesses and parties based on their viewpoints and roles as stakeholders within the system. Data is first coded by a WBG staff in the field, then validated by a WBG staff at headquarters (HQ) in Washington, DC, before it is finalized through a third round of review by the JUPITER Task Team Leader (TTL). This is an iterative process, where clarifications are requested at each level of review, requiring the relevant staff to provide additional information or further support a coding decision. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 86 ANNEX A A.2 Application to Liberia This section discusses the application of the JUPITER methodology detailed in Section 2 to the pilot country of Liberia, from project initiation to the final report, including questionnaire design, data collection, and data analysis. Liberia was selected as a pilot country due to an alignment of (1) Government’s interest in improving the effectiveness of the justice system in service delivery; (2) WBG interest in engaging with the Government on justice reform; and (3) country characteristics (former FCV with a dual legal system). The background research for the report started in January 2023. Field research started in February and was completed in April 2023. Data coding, data validation, and data review were carried out between March and May 2023. The report was written between April and June 2023. a. Background research JUPITER assessments start with extensive background research on publicly available information. The team initiated the project by understanding Liberia’s judicial landscape and justice system, its history and evolution, its relationship with the government, society, and the customary system. The team tracked and researched all major indicators produced by international organizations, academia, survey organizations, and civil society organizations reporting the views and experiences of citizens, enterprises, lawyers, and experts. These indicators included major indices, such as the World Justice Project’s Rule of Law Index, Fragility State Index, Bertelsmann Transformation Index, Global Corruption Barometer, and Global Competitiveness Report. The criteria for selection of such indicators were:  Perception Data – indicators that reflect sentiments of stakeholders on the effectiveness of judicial services.  Primary Data – indicators that have sourced their own data through surveys, interviews, etc. Indicators that aggregate data from several other datasets or use secondary data were not considered.  Focus on civil law (vs. criminal law) and its system.  Currently active, revised periodically and consistently – only indicators that are currently active, have had at least five publications of their assessment, and have had a temporally consistent calculation exercise as well as launch of their results have been considered.  Publicly available.  Focus on service delivery and benchmark areas that are relevant to JUPITER.  Focus on FCV countries, given Liberia’s context. As part of its desk research, the team studied several major reports on Liberia’s ecosystem. These included reports from the Carter Center, IDLO, ILAC, SIDA, UNDP, UNMIL, USIP, WB, and others. Specific insights from some of these studies were used for the report after consent and permissions from the authors (where data were used) and have been cited (where insights were referred to). b. Questionnaire Design and Identification of Stakeholders Through desk research, the JUPITER team at the WBG HQ, alongside two WBG staff based in Liberia who are familiar with the laws and judicial system of Liberia, prepopulated the questionnaire with answers by law. This allowed the team to also compile a list of missing laws to be further sought from the Government and the judiciary. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 87 ANNEX A Once the questionnaire was ready for distribution, the team identified key stakeholders with the help of local organizations and experts, including:  Institutional actors in the judicial branch of the government – the Liberian Judiciary, including judges, lawyers, court clerks, bailiffs, administrators, and key staff members and departments of the Judiciary.  Actors in the executive branch of the government – the MOJ, the Ministry of Internal Affairs, and all their relevant departments.  Professional associations – the LNBA and the AFELL.  Stakeholders influencing the judicial ecosystem in Liberia, including the Ministry of Foreign Affairs, the Ministry of Finance and Development, the Law Reform Council, among others.  External stakeholders, including the several international development associations like IDLO, UNDP, UNHCR, and UNMIL; philanthropic institutions like the Carter Center and other such NGOs working in Liberia; international government agencies such as the USAID and USIP. Future pilots will include interviews with stakeholders from the private sector, to understand their perspectives on judicial service delivery and its impact on the business and investment environment. c. Data Sources For the legal framework, laws and documents that were found relevant for the JUPITER assessment included:  Budget documents of the Government of Liberia.  Constitution of Liberia.  Civil Procedure Law.  Code of Ethics for Judges.  Code of Moral and Professional Ethics.  Commercial Code.  Decent Work Act.  Executive Law.  Judicial Canons of the Republic of Liberia.  Land Rights Law.  Legislative Law.  Local Government Act.  Public Finance Management Act.  Revised Schedule of Court Costs, Fees, and Fines.  Revised Rules and Regulations Governing the Hinterland of Liberia.  Draft policies on ADR.  Draft Law on Legal Aid. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 88 ANNEX A To capture the application of the law in practice, the team collected data from a total of 222 experts, selected to include key sociodemographic differences (gender, geography, and socioeconomic status, in particular). Experts consulted by the team included:  Judges.  Lawyers.  Court Users across several counties.  Court Administrators and Clerks  Head of key departments of the Judiciary – National Association of Trial Judges, Department of Documentation, Department of ICT, Department of Public Information, Department of Personnel, Department of Projects and Planning, Judicial Institute, and various officials of the Temple of Justice in Monrovia.  Head of key departments of the MOJ – the ADR Section, Child Justice Section, Civil Litigation Section, and Human Rights Section.  LNBA.  AFELL.  Ministry of Internal Affairs.  Ministry of Foreign Affairs.  Representatives of WBG development partners – IDLO, UNDP, other UN agencies. Administrative data were also used to test the application of the law in practice. This data were challenging to obtain as records were scattered and often incomplete. Local WBG staff visited the courts more than 75 times to obtain the required information, which was ultimately made available in the form of Quarterly and Annual reports of the judicial branch of Government. The team was able to obtain six years of reports, including data on the number of courts, number of judges, number of incoming, pending and resolved cases for all levels of courts across the 16 counties and the percentage of appealed cases. The team was not able to obtain information on the rate of first instance decisions that are overturned in appeal, as this data is not collected by the courts. The team also requested official legislation on judges’ salary schedules and a copy of the National Remuneration Standardization Act of 2019, but these were not provided. When administrative data were not available, the team resorted to other sources – for example, publicly available information on judges’ salaries. To complement these data collection efforts, the team also used data produced by other parties. The total number of individuals whose views were incorporated in the final report is 11,892. All due permissions and consent were obtained while using these datasets, which are mostly publicly available. These datasets included:  3,504 responses from “Public Perceptions of Liberian Justice and Security Institutions,” produced by UNDP Liberia and administered by LISGIS in close collaboration with UN PBO and OHCHR.  700 responses from the “Rule of Law and Access to Justice in Liberia” report by IDLO and the Swiss Peace Foundation.  130 interviewees and 35 focus groups from the study conducted in Nimba, Grand Gedeh, and Lofa counties for the report, “Looking for Justice: Liberian Experiences with and Perceptions of Local Options” by Isser et al (2009).  2,800 responses (2500 household interviews and 300 key informant interviews) from Oxford University’s Centre for the Study of African Economies (CSAE) in collaboration with the Carter Center, as reported in Isser et al (2009).  4,501 from responses from “Talking Peace: A population-based survey on attitudes about security, dispute resolution, and post-conflict reconstruction in Liberia,” by Vinck et al (2011), from the Human Rights Center at the University of California, Berkeley. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 89 ANNEX A Some of these reports covered the whole country, others only certain regions. They were especially useful in providing additional insights into the customary system, as several had conducted interviews with tribal chiefs and users of the customary system. Data collected by the team were either in the form of a filled-out questionnaire or in the form of recorded meeting minutes that were then incorporated into a questionnaire. Focus groups were organized with LNBA and AFELL, with multiple participants from each organization. These meetings were recorded and scripted. The team used the protocol for data storage and management detailed in “Section 2.5. Questionnaires,” extracting the information to Excel and coding it as described in the same section. The data analyzed in this report represents a snapshot of the development of the judicial system in Liberia as of May 2023. The study abstracts from the relationship between judicial and political institutions and hence may miss some important dynamics and interplays, especially in so far as the relationship between the customary system (under the power of the Executive) and the judiciary are concerned. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 90 ANNEX B Annex B Data for Liberia This Annex presents the aggregated data for Liberia at the datapoint level. Questions by law are presented alongside their mirror in practice, whenever possible. B.1 Access to Justice Pillar The Access to Justice Pillar contains 103 questions, equivalent to 185 datapoints, and comprises five sub-pillars: (1) transparency; (2) proximity to court; (3) equal access; (4) legal aid and cost; and (5) small claims court and procedure. The following table presents the findings related to each question. >>> Table B1: Access to Justice Legend: Q=Question; A=Answer; C=Comment; LB= Legal Basis. LAW PRACTICE Transparency Q1: Does a centralized and comprehensive website of all national laws and regulations (i.e., operated, managed, and administered by a single government unit) exist in the country’s official language(s)? A: No, laws are scattered across different websites. C: Two main platforms compile some laws, regulations and Supreme Court decisions: the websites of the judiciary and the Liberia Legal Information Institute (LiberLII). With internet available, these two websites are public, free, and openly accessible for all. These, however, do not have timely updates as evidenced by the gaps in information available throughout the years. Sometimes, laws pertaining to specific ministries or agencies can be found on their respective websites. If “No” to Q1, are laws and regulations published in a manner that makes it possible to consult the latest consolidated version for free? A: No. C: While it is the statutory responsibility of the MFA to publish laws passed or amended, the Ministry has not done so consistently. Often the MFA’s website is down, leaving users to rely on the distribution of handbills, which is also not done consistently. Q2: How difficult is it to stay abreast of the legal framework? A: Difficult (consolidated versions of updated laws and regulations are either not available or very delayed; timely updates occur in less than 25% of cases). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 91 ANNEX B Q3: How consistent and precise is the legal framework (i.e., laws are well drafted, do not create ambiguity that can be exploited by the parties, and conflicting laws are repealed in a timely manner)? A: Somewhat inconsistent and imprecise (the above conditions are not met in most cases). Q6: What share of the court(s)’ judgments is public (i.e., online, or in a manner where anyone can access them without submitting a request or paying a fee)?  Magistrate Courts: Not public.  Circuit Courts: Not public.  Supreme Court: Between 50% and 75% (Website of the Judiciary). Q4: Is there a legal requirement to make all judgments public? Q7: If judgments are not public, what share is publicly A: Yes, however the modality is not clearly regulated. available (i.e., online or otherwise, but access must be LB: Section 20.3 of the Executive Law establishes the statutory requested and/or paid, for example through purchase of the duty of the MFA to “oversee the publication of all papers and official gazette or by requesting a copy at the court)? documents required by law to be published.” Section 60 of the  Magistrate Courts: >75%. Anyone can obtain a copy from the Legislative Law provides that laws, acts and resolutions shall be clerk after paying a fee. published within 90 days of the close of each session, in the form  Circuit Courts: >75%. Anyone can obtain a copy from the clerk of pamphlets and handbills. after paying a fee.  Supreme Court: >75%. Anyone can obtain a copy from the clerk after paying a fee. Q8: Are judgments made public or publicly available in a timely manner?  Magistrate Courts: No.  Circuit Courts: No.  Supreme Court: No. Q5: Who is responsible for the publication of judgments (including online, if applicable)? A: The Ministry of Foreign Affairs. LB: Section 20.3 of the Executive Law. C: Clerks are mandated to keep a record of judgments and make them publicly available upon payment of a photocopying fee (Section 41.3 of the Civil Procedure Law). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 92 ANNEX B Q9: How easy is it to find the following information?  Court location: Information is mostly available. It can be found on the Judiciary website. Community Chairmans and Police officers also provide this information when requested in a particular location.  Court hours and days of operation: Information is mostly available. Court hours and sessions are regulated by the “General Rules applicable in all courts of Liberia”, which can be found in the Judiciary website.  Basic information on how to file a claim: Information is mostly unavailable. Parties wishing to file a claim require a lawyer.  Basic information on common types of cases: Information is mostly unavailable.  Lay documents and guides that enable self-representation: This information is not available in the courts. Parties are usually informed in their first appearance before a Magistrate that they have the choice to be self-represented. It is, however, rare for parties to represent themselves.  Information on court fees: Information is mostly available. This information is widely published at the entrance of many courts across the country and online (Link).  Information on legal aid: There is no publicly available information on legal aid. Q10: How accurate and up to date is the information?  Court location: Mostly accurate (more than 50%).  Court hours and days of operation: Mostly accurate (more than 50%) (Link).  Basic information on how to file a claim: N/A (see Q.9).  Basic information on common types of cases: N/A (see Q.9).  Lay documents and guides to enable self-representation: N/A (see Q.9).  Information on court fees: Mostly accurate (more than 50%) (Link).  Information on legal aid: N/A (see Q.9). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 93 ANNEX B Proximity to court Q11: Confirm list of first instance civil courts (of general jurisdiction and specialized). A: According to official data from the most recent Quarterly Report released by the Judiciary (January 10, 2023), the court system consists of 217 Functional Courts, which include 1 Supreme Court, 16 Circuit Courts, 7 Criminal Courts, 26 Specialized Courts, and 167 Magisterial Courts. There are 45 non-functional courts, which include 28 Specialized Courts and 17 Magisterial Courts. The total number of courts is 262. Q12: Confirm list of small claim courts (if different from first instance courts). A: The law does not specifically establish small claim courts in Liberia. However, given the nature of these courts as dealing with minor matters, magisterial courts in Liberia can be categorized as such. These courts have limited jurisdiction depending on the amount of the claim and are decided upon by a Stipendiary or Associate Magistrate assigned with no jury required. Q13: How would you characterize the accessibility of the courts of your country to people in urban regions as compared to those in rural regions? A: Much more accessible to people in urban regions than those in rural regions. C: People in rural areas find it more socially and economically viable to resort to customary courts instead of formal courts, given the associated high costs, long distances, long delays, and lack of social acceptability of the latter. Users interviewed by the team had to travel an average of 60 minutes to reach the nearest court, with peaks of 150 and 180 minutes. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 94 ANNEX B Equal access Q15: In practice, are women able to file a claim with the court in the same way as a man (consider, for example, the stigma of Q14: By law, do women have the same rights as men to file a being seen entering a court)? claim with the court? A: True in more cases than not. A: Yes. C: Although women have the same legal rights as men to file cases LB: Article 11(c) of the Constitution of Liberia provides that “all and their testimonies carry equal weight in court, social stigma and persons are equal before the law and are therefore entitled to the pressure from family often discourage them from pursuing their equal protection of the law.” rights. Women experience challenges such as being discredited and intimidated. In cases of sexual harassment, for instance, they have concerns related to their job security. Q17: In practice, does a woman’s testimony carry the same evidentiary weight in court as a man’s? Q16: By law, does a woman’s testimony carry the same evidentiary weight in court as a man’s? A: True in more cases than not. A: Yes. C: Once established, the testimony of a woman carries similar evidentiary weight as a man in court proceedings. However, men LB: Article 11(c) of the Constitution of Liberia provides that “all have better access to judges outside of hearings due to societal persons are equal before the law and are therefore entitled to norms, which can play a part in influencing the course of action in the equal protection of the law”. In addition, Article 20 of the their favor. Moreover, men tend to keep all the legal documents Constitution determines that “justice shall be done without sale, in a marriage (such as land deeds, for example). When these are denial or delay.” required as evidence in court, men usually have more evidence as custodians of these documents. Q18: By law, there are civil remedies for sexual harassment in employment. In practice, how likely is a woman to bring a civil case for sexual harassment against her employer? A: Somewhat likely (between 50% and 75% of cases). Q18: Civil remedies for sexual harassment. C: Women experience challenges when bringing claims for sexual By law, the Decent Work Act of 2015 prohibits discrimination and harassment, such as discreditation, intimidation and concerns harassment, including sexual harassment at the workplace. Section for their job security. Due to economic concerns, women may be 2.8 defines and prohibits sexual harassment in the workplace, hesitant to bring these cases against their employer, given that while Sections 14.8 and 14.10 provide civil remedies for wrongful retaliation can occur. Further, a case of sexual harassment must termination, which may include compensation or reinstatement. be heard in open court and many women are not comfortable explaining the details of such events in public. Given the existence of societal prejudices against women, many male judges and magistrates are more likely to favor a male defendant in these cases. Q19: In practice, how likely is the woman to win the case once it is established that she was indeed harassed beyond reasonable doubt? A: Somewhat likely (between 50% and 75% of cases). C: Once the occurrence of harassment is clearly established, cases are likely to follow the rule of the law. However, public opinion and the impact of societal norms sometimes can hinder women’s ability to win this type of cases, even when evidence is present. The lack of sufficient women in jury panels also affects them, as some men tend to side with male defendants. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 95 ANNEX B Q20: How would you characterize the accessibility of the courts of your country for women? A: A lot more accessible to men than women. C: Courts are a lot more accessible to men than women because of the burdens of filing a claim and prolonged periods of litigation. Many women cannot overcome these challenges as they must attend to household work and childcare, thus, they might not be willing to spend that time in Court. Most women feel marginalized and are afraid to withstand the tension of legal matters. Also, male defendants can more easily interact with judges in their chambers and even outside the court. Q21 & 22: By law, are persons with disabilities (including intellectual disabilities) recognized the right to legal capacity (i.e., the power to engage in transactions and create, modify or end legal relationships)? Are they recognized equal standing in courts and tribunals? A: No. LB: Article 11(c) of the Constitution of Liberia provides that “all persons are equal before the law and are therefore entitled to the equal protection of the law.” The Civil Procedure Law, however, provides that persons who are declared “incompetent” can sue or be sued through a representative (Section 5.13). Section 16.100 (1) of the Civil Procedure Law provides that, at or prior to any hearing, the court must require adequate representation by counsel for any allegedly “mentally disabled” or allegedly “incompetent” party to such proceedings. The court, then, must inform them of their right to counsel and inquire on whether they desire to be represented by a counsel of their choice or by one appointed by the court. The Court must provide a counsel when the person cannot afford one. Even though these provisions allow for persons declared “incompetent” or with intellectual disabilities to be represented by a counsel or representative in court proceedings, it is important to note that the right to legal capacity encompasses further guarantees, such as the power to engage in transactions and create, modify or end legal relationships (General Comment No.1, Para. 12, Committee on the Rights of Persons with Disabilities). Pursuant to Article 12 of the Convention on the Rights of Persons with Disabilities and its interpretation by the Committee, governments have the obligation to transition from the substitute decision-making paradigm (which encompasses guardianship, conservatorship and mental health laws that permit forced treatment) to one that is based on supported decision-making. This support in the exercise of legal capacity must respect the rights, will and preferences of persons with disabilities and should never amount to the imposition of a substitute decision maker against their will. Q23: By law, are persons with disabilities granted legal capacity to testify on an equal basis in court? A: No. LB: N/A. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 96 ANNEX B Q25: In practice, if such policies exist, what is their level of implementation? (i.e., wheelchair accessibility; elevators Q24: By law, are courts required to have policies in place accessibility; washrooms accessibility, alternative seating facilitating equal access to justice for persons with disabilities, arrangements in courtrooms; sign language interpretation; allowing them to participate on an equal footing in court tactile language interpretation; allowing guide dogs into proceedings as parties, witnesses, victims, etc.? courtrooms; screen readers; etc.) A: No. A: Very low level of implementation (< 25% of courts). LB: N/A. C: In practice, there are not many measures in place to support persons with disabilities to participate in court proceedings. Q 26: How would you characterize the accessibility of the courts of your country for persons with disabilities? A: A lot more accessible to persons without disabilities. C: Most courts in Liberia do not have special accommodations to make them accessible for persons with disabilities. Also, persons with disabilities suffer from other barriers in accessing the courts, such as lack of accommodations in public transport and long distances between their residence and the courts. The lack of clear guidelines and policies means there are no standardized support measures for this population. Q27.1: Are translation and interpretation services free of charge for indigent people in civil cases? A: No. C: The law is not clear on whether these interpretations services are free. Given that it is not common to get or use an interpreter Q27: By law, is there a requirement to provide translation and during court proceedings in Liberia, the application of this provision interpretation services in civil cases for: in practice has been rare. However, in most cases, the parties pay A & LB: when a person is appointed by the Court to perform a service for  Hearings: Yes. Sections 13.8 and 21.4 of the Civil Procedure them. Law provide that the court shall appoint an interpreter whenever one of the parties, a witness, or a deponent does not Q27.2: How likely are people to receive such services? understand or speak English. In this last case, a translator will translate all questions and answers into the language which the A: Unlikely (less than 25%). deponent understands and speaks. C: Once the court establishes that interpretation services are  Documents: No. The law requires all documentation in a legal required, the court should appoint an interpreter. This is more proceeding to be in English, unless an affidavit or exhibit is in likely to happen at the Circuit Court level, but it is very rare at the a foreign language, in which case it must be accompanied by Magistrate Court level. a translation (Section 8.1(2) of the Civil Procedure Law). The law does not, however, provide any obligation to the courts to provide translation services for documents. Q.27.3: How likely are indigent people to receive such services? A: Unlikely (less than 25%). C: This service should be ordered by the court as a support to persons with linguistic barriers during the trial process, however, its application has been very rare. Therefore, it is meant for everyone, including persons that cannot afford it. Indigent people are not any more or less likely to receive it. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 97 ANNEX B Q28: How would you characterize the accessibility of the courts of your country for persons with linguistic barriers? A: A lot more accessible to persons without linguistic barriers. C: Users may receive interpretation services upon order of the court. However, the quality of this service cannot be compared with having a trial in English. The qualification of the interpreter and the quality of interpretation can have an impact on the determination of the matter. In addition, these services do not seem to be available in Magistrate Courts. Q29: How would you characterize the accessibility of the courts of your country for persons of different socio-economic classes? A: A lot more accessible to persons of higher socioeconomic classes. C: As result of the perceived corruption of the court system and the costs associated with the process of litigation, formal courts are more accessible to people of higher socioeconomic backgrounds. Legal aid Q30: Is there a dedicated law on legal aid? A: No (but a draft Legal Aid Bill is pending legislative approval). LB: The only relevant provisions are in Chapter 65 of the Civil Q31: Is government-funded legal aid available in your country? Procedure Law (“Suits by or against indigent persons”), which A: Yes. provide for support to indigent people in court proceedings and require the court to assign an attorney if it is proved that the person cannot afford legal representation. Q32: Are there other providers of legal aid (i.e., NGOs, bar associations, universities, etc.)? A: Yes. C: (i) Liberia National Bar Association (LNBA): With support from USAID-LPAC and the Carter Center, the LNBA has organized legal aid clinics in five counties (Montserrado, Margibi, Grand Bassa, Bong and Bomi). (ii) Carter Center: It runs a call-in program that is currently serving three counties (Bong, Lofa and Grand Gedeh), with an emphasis on criminal cases. (iii) Her Voice Liberia: Provides legal aid mostly to women and children, including cases of domestic violence and persistent non- support. (iv) Serving Humanity for Education and Development (SHED). (v) AFELL. Q33: Which of the following aspects of legal aid are regulated by law? Q38: Which of the following best describes the legal requirement on the evidentiary burden over eligibility criteria? A: The law regulates the eligibility criteria and the process for securing legal aid for indigent persons. A: The party intending to proceed as indigent must produce evidence of the lack of resources before the request is granted. LB: Chapter 65 of the Civil Procedure Law. Q34: Is there a body or authority in charge of providing, administering, coordinating, and monitoring the quality of legal aid services? A: No. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 98 ANNEX B Q35: By law, for which of the following actions can government- funded legal aid (vs. legal aid provided, for example, by NGOs) be used? A: Representation in court and legal advice before the proceedings. LB: Chapter 65 of the Civil Procedure Law. Q36: By law, who approves a request for legal aid? A: The judge(s) dealing with the main case. LB: Chapter 65 of the Civil Procedure Law. Q37. What is the total number of legal aid requests received and requests approved for government funded legal aid? A: N/A, this data is not collected by the Judiciary. Q39: Are there enough providers of government-funded legal aid? A: No. The motion for permission to proceed as an indigent person (Chapter 65 of the Civil Procedure Law) is rarely granted. C: Some government-funded legal aid is provided in criminal cases. Q40: What are the chances of obtaining government-funded legal aid when eligible? A: Very low (less than 25% of eligible applicants). Q41: By law, is there a time standard for deciding on a legal aid Q42: In practice, what is the average decision time for request? government-funded legal aid requests (calendar days)? A: No. A: N/A, this data is not collected by the Judiciary. Q43: What is the total budget (in local currency) allocated to Q44: What is the total amount (in local currency) spent on government-funded legal aid as a percentage of the national/ government-funded legal aid? judiciary/justice sector budget? A: N/A (data is only available for legal aid provided by public A: Legal aid is not accounted for in the budget of the Judiciary. defenders in criminal cases). Q45: What is the annual income value (in local currency) to be eligible for full legal aid? A: N/A, not regulated. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 99 ANNEX B Court fees Q46: Are court fees set by law? A: Yes. Q47: Is clear and detailed information about the court fees applicable to various types of cases publicized widely? LB: Court fees are regulated by: (i) Rule 27 of the Circuit Court Rules; (ii) Part 5 of the Rules of the Supreme Court; (iii) Sections A: Yes, information is published widely including online and in 6.8, 7.9, 8.10, 14.3, 14.5, and 15.4 of the Judiciary Law of 1972; court buildings. [Link] and (iv) the latest schedule of fees updated in 2015. Q48: Are court fees collected by the courts retained by the Judiciary? A: Yes, in their entirety. C: Filing fees, fines, and all other costs and fees established by law in the court fee schedule are retained by the Judiciary. Q50: How likely is the winning party to get full reimbursement of court fees? A: Not likely (less than 25% of cases). Q49: By law, are litigants in general required to pay a court fee to initiate a proceeding at a court of first instance? C: In Circuit and Specialized Courts, winning parties partially recover costs through the Bill of Costs, which details litigation A: Yes, at the beginning of the procedure. expenses and is signed by both parties and the presiding judge. LB: Same provisions cited in Q46. According to Section 45.1 of the Civil Procedure Law, the winning party is entitled to costs unless specified otherwise or deemed inequitable. However, in Magistrate Courts, this is uncommon due to the existence of high fees. This is often unaffordable for parties who already face other litigation costs. Q51: How likely is the winning party to get full reimbursement of attorney fees? A: Not likely (less than 25% of cases). C: A party in whose favor a judgment is rendered is entitled to costs in the action, including attorney fees (Section 45.1 of the Civil Procedure Law). This is also the case for fraudulent adverse claims (Section 44.46), failure to comply (Section 1.6 (2)) or for motion presented in bad faith (Section 11.4). In practice, reimbursement is usually partial and unlikely, especially in Magistrate Courts. Q52: Are court fees set at a level that deters individuals and businesses from filing a claim? A: No. C: The courts fees set by law are reasonable. However, additional fees and facilitation payments paid in practice deter parties from filing claims. Q54: How likely is it for an eligible candidate to obtain a fee waiver? Q53: Does the law establish a court fee waiver program with A: N/A (a fee waiver program is not available). clear eligibility criteria? Q55: What is the total number of fee waiver requests received A: No. and approved? A: N/A (a fee waiver program is not available). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 100 ANNEX B Small claim court or procedure Q56 & 57: In Liberia, are there small claims courts/divisions and/or a fast-track procedure for small claims? If yes, what type of cases fall under the jurisdiction of this court/procedure? A: Yes, a court/division. LB: Due to their jurisdictional scope, Magistrate Courts can be considered small claim courts as they decide over “minor matters” (Section 1.1. of the Judiciary Law). Pursuant to Section 7.3 of the Judiciary Law, they have limited jurisdiction and decide without a jury on the following matters: (i) civil cases related to the recovery of money or the possession of real property where the value does not exceed USD2,000.01 and 500, respectively, (ii) criminal proceedings related to petty larceny, (iii) traffic violations, (iv) juvenile court proceedings; (v) filiation proceedings, and (vi) tribal matrimonial causes in certain magisterial areas. Q58: By law, is it possible to file small claims orally? A: Yes. LB: Section 3.31 of the Civil Procedure Law provides that “[i] n courts not of record, a civil action is commenced by making of an oral complaint to the justice or magistrate and issuance of the appropriate writ.” Rule 11 of the Rules and Regulations for the Governance of the Magistrate Courts (link) mentions that these are not “strictly a court of record”, so Section 3.31 would be applicable. Q59: By law, is it possible to file small claims without legal representation? Q60: In practice, how easy is it to use the small claims court/ A: Yes. procedure without legal representation? LB: Section 1.8 of the Civil Procedure Law determines that a A: Somewhat difficult (only people with higher education can use complainant in a Magistrate Court may be represented by a family it). member or a guardian. Q61: Are there standardized templates available to file small claims? A: No. Q62: By law, is there a time standard for resolving small claims (calendar days)? A: Yes. LB: Rule 10 of the Rules and Regulations for the Governance of Q63: What is the average resolution time for small claims the Magistrate Courts determines that “no civil case filed in the (calendar days)? Magistrate Court shall remain on the docket undetermined for A: On average, a civil case in the Magistrate Courts took 296 days more than two months [60 calendar days]”, after which it will be in 2022 (only a slight increase from 234 days in 2021). stricken out of the docket. However, in practice, there are delays due to (i) parties requesting for continuance of trial, (ii) the large backlog of cases, and (iii) public holidays and other intervening events. Q65: Are court fees in small claims set at a level that deters Q64: Is there a dedicated fee schedule for small claims? individuals and businesses from filing a claim? A: Yes. A: No. LB: Section 7.9 of the Judiciary Law establishes the schedule of C: The courts fees set by law are reasonable. However, additional fees for Magistrate Courts, alongside the latest schedule of fees fees and facilitation payments paid in practice deter parties from updated in 2015. filing claims. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 101 ANNEX B B.2 Efficiency Pillar The Efficiency Pillar contains 74 questions, equivalent to 99 datapoints, and comprises five sub-pillars: (1) clearance rates; (2) age of caseload; (3) disposition time; (4) case processing and case management; and (5) information and communications technologies. The following table presents the findings related to each question, drawing comparisons between the legal requirements and how they are carried out in practice. >>> Table B2.1: Clearance rate, age of caseload, and disposition time Number of judges 2022 2021 2020 Q66: Number of judges in Liberia 393 - - Q67: Of which, female 33 - - Number of incoming cases 2022 2021 2020 Q68: Magistrate Courts 10428 8973 4492 Q69: Circuit Courts 3061 1691 1951 Q70: Magistrate Courts (administrative jurisdiction) (same as q. 68) (same as q. 68) (same as q. 68) Q71: Circuit Courts (administrative jurisdiction) (same as q. 69) (same as q. 69) (same as q. 69) Number of resolved cases 2022 2021 2020 Q72: Magistrate Courts 5575 5277 2958 Q73: Circuit Courts 1150 802 746 Q74: Magistrate Courts (administrative jurisdiction) (same as q. 72) (same as q. 72) (same as q. 72) Q75: Circuit Courts (administrative jurisdiction) (same as q. 73) (same as q. 73) (same as q. 73) Active cases older than 3 years Q76: Magistrate Courts This data is not collected by the judiciary Q77: Circuit Courts This data is not collected by the judiciary Q78: Supreme Court This data is not collected by the judiciary Q79: Magistrate Courts (administrative jurisdiction) This data is not collected by the judiciary Q80: Circuit Courts (administrative jurisdiction) This data is not collected by the judiciary Q81: Supreme Court (administrative jurisdiction) This data is not collected by the judiciary Number of pending cases 2022 2021 2020 Q82: Magistrate Courts 4521 3380 1344 Q83: Circuit Courts 1881 843 1186 Q84: Magistrate Courts (administrative jurisdiction) (same as q. 82) (same as q. 82) (same as q. 82) Q85: Circuit Courts (administrative jurisdiction) (same as q. 83) (same as q. 83) (same as q. 83) IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 102 ANNEX B >>> Table B2.2: Case processing, case management, and ICT Legend: Q=Question; A=Answer; C=Comment; LB= Legal Basis. LAW PRACTICE Assignment of cases Q87: If assignment of cases is not random, how is it carried out? A: The process in practice varies from judge to judge, with some Q86: By law, how are case assigned within the courts? judges requesting to approve the assignment before issuing the A: Not randomly. assignment order (which is not required by law). Sometimes judges simply do not assign cases because they do not wish to LB: Section 15.2 of the Civil Procedure Law determines that, add workload to their schedules. once the defendant has been properly served, the clerk must place the case on the jury or nonjury calendar for civil cases for Q88: How often is the assignment process abused (as reported, the term of court next to open. The cases for a term of court are for example, by users, NGOs, etc.)? docketed in order of the date on which the clerk receives proof of A: Often (between 50% and 75% of processes). service, except in cases entitled to preference that are accorded priority. These cases include, for instance, actions against the C: The case assignment process is frequently abused on several State (Section 15.3 of the Civil Procedure Law), cases that require grounds, such as professional misconduct by lawyers, and parties a jury trial, and criminal cases (Section 3.11 of the Judiciary Law). who use societal and financial influence. The recording clerks forwards the assignments to the Office of the Q89: How easy is it for the parties to influence the assignment? Chief Sheriff, who assigns a bailiff to serve the order. Assignment of cases in Magistrate Courts is done orally. A: Easy (between 50% and 75% of assigned cases). C: It is easy for the case assignment process to be abused, as wealthy or well-connected individuals manipulate judges’ decisions, either directly or via their lawyers. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 103 ANNEX B Case Management Information System (CMIS) Q90: Is there a single electronic CMIS system used in all courts? A: No, an electronic CMIS system exists, but is not used in every court. C: In partnership with UNDP, the Judiciary of Liberia has recently implemented an online CMIS system which provides case tracking and summaries of information on cases. The tool has been developed, the clerks have been trained, and e-tablets have been provided to 12 Magisterial Courts and 2 Circuit Courts. However, the system is facing several constraints, such as delays, mishandling of the e-tablets and weak network service in rural Montserrado. Q91: Which of the following functionalities are available to judges through the CMIS system? A: The CMIS system that is being piloted in Montserrado provides the facts and the summary of information on cases. It also tracks cases in real time. Q92: Which of the following functionalities are available to lawyers through the CMIS system? A: N/A. Q93: What is the CMIS deployment rate (in civil and/or commercial cases)? A: Less than 25%. C: The CMIS pilot project has only been deployed in 14 courts in Montserrado county. Information and Communications Technology (ICT) Q94: What percentage of judges and staff drafting documents and entering case data has and uses computers? A: Less than 25%. Q95: What percentage of courts has internet installed? A: Less than 25%. Q96: What percentage of courts has intranet installed? A: Less than 25%. Q97: By law, can the initial complaint be filed electronically through a dedicated platform? A: No. LB: Article 3.31 of the Civil Procedure Code requires (i) the filing Q99: In practice, what is the percentage of cases filed of the petition or complaint with the clerk in a court of record electronically? and (ii) an oral complaint to the justice or magistrate for courts A: N/A (complaint cannot be filed electronically). not of record. In Liberia, a dedicated electronic platform for filing C: There is no platform that allows for the electronic filing of complaints has not been yet developed. complaints. Q98: If “Yes” to Q.97, is the plaintiff required to follow-up with a paper copy? A: N/A (complaint cannot be filed electronically). IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 104 ANNEX B Q101: In practice, what is the percentage of cases served Q100: By law, can the initial complaint be served electronically electronically? through a dedicated platform? A: N/A (complaint cannot be served electronically). A: No. C: All complaints are served in person through the Sheriff of the Court. Q102: By law, can a request for legal aid be filed electronically? Q104: In practice, what is the percentage of legal aid requests A: No. filed electronically? Q103: If “Yes” to Q.102, is the applicant required to follow-up A: N/A (request cannot be filed electronically). with a paper copy? C: There is no platform that allows for the electronic filing of these A: N/A (request cannot be filed electronically). requests. Q105: By law, can the initial complaint in a small claim Q107: In practice, what is the percentage of small claims filed procedure be filed electronically through a dedicated platform? electronically? A: No. A: N/A (complaint cannot be filed electronically). LB: In magisterial courts, a civil action is commenced in writing or C: There is no platform that allows for the electronic filing of these by making an oral complaint to the justice or magistrate and the claims. issuance of the appropriate writ. Q106: If “Yes” to Q.105, is the plaintiff required to follow-up with a paper copy? A: N/A (complaint cannot be filed electronically). Q109: In practice, what is the percentage of evidence filed electronically? A: N/A (evidence filed electronically is not admissible). Q108: By law, is evidence filed only electronically admissible? C: There is no process in place for the admission of evidence A: No. filed electronically. In a recent criminal case involving an official of the state who was accused of soliciting a bribe from a foreign company, the request for a key witness to testify virtually from abroad was rejected by the Court because there is no system in place for such purposes. Q111: In practice, what is the percentage of hearings Q110: By law, can hearings be conducted remote/virtually? conducted remotely? A: No. A: Less than 25%. LB: Hearings are done in court. There is no process in place for C: Only the Supreme Court has the authority to conduct online conducting hearings remotely or virtually. hearings currently, which was very recently introduced during the March Term of 2023 of the Supreme Court. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 105 ANNEX B B.3 Quality Pillar The Quality Pillar contains 56 questions, equivalent to 89 datapoints, and comprises five sub-pillars: (1) qualification of judges; (2) extra-judicial activities; (3) judicial pay; (4) appeal and reversal rates; and (5) consistency of decisions. The following table presents the findings related to each question, drawing comparisons between the legal requirements and how they are carried out in practice. >>> Table B3: Quality Legend: Q=Question; A=Answer; C=Comment; LB= Legal Basis. LAW PRACTICE Qualification of judges Q112: By law, which of the following criteria is used for the appointment of judges? A: (i) Education requirements and (ii) years of experience in the legal field. LB: Articles 68 and 69 of the Constitution of Liberia provide the requirements to be a justice of the Supreme Court and a judge of lower courts, respectively. According to these articles, the Q113: How often are the criteria mandated by law for the Chief Justice and Associate Justices of the Supreme Court are appointment of judges followed in practice? appointed and commissioned by the President with the consent of A: Followed very rarely (less than 25%). the Senate. Supreme Court Justices should be citizens of Liberia C: In the last several years, the President has appointed judges and of good moral character who have practiced for at least five without following the consultative process mentioned in the law years. Circuit Court Judges are appointed through the same for appointment. process, but only three years of experience are required. Sections 2.4, 3.7, 4.7, 5.7, 6.5, 7.6, 9.5 and 10.5 of the Judiciary Law specify qualifications of judges at various levels from the Supreme Court to the Magistrate Courts. These requirements, however, are slightly different from those set forth in the Constitution on the minimum number of years required for each type of appointment. In these cases, the Constitution supersedes (Article 2 of the Constitution of Liberia). Q114: In your view, are judges competent (i.e., knowledgeable of the law and able to apply it correctly)?  Magistrate Courts: Somewhat competent.  Circuit Courts: Somewhat competent.  Supreme Court: Very competent. Q115: In your view, are judges honest (i.e., ability to resist taking bribes or other incentives in individual cases)?  Magistrate Courts: Somewhat dishonest.  Circuit Courts: Somewhat honest.  Supreme Court: Somewhat honest. Q116: In your view, are judge-rendered decisions of high quality? [Judgments of bad quality are those that contain grammatical errors, imprecise or inconsistent application of the legal framework, technical errors requiring the parties’ rectification before enforcement, wrong assessment of the evidence, failure to address the most essential arguments, etc.]  Magistrate Courts: Somewhat not qualitative.  Circuit Courts: Somewhat qualitative.  Supreme Court: Somewhat qualitative. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 106 ANNEX B Extra judicial activities Q117 & Q117.1: Does an institution/body exist to give opinion on ethical questions on the conduct of judges during extra- judicial activities? What is the composition of such body? A: Yes. LB: Canon 40 of the Judicial Canons of Liberia provides for the creation of a Judiciary Inquiry Commission (JIC), which has the authority to receive and investigate complaints against judges for violation of any provisions of the Canons. It is composed by (i) an Associate Justice, (ii) two Judges of Court of Record, (iii) the President of the LNBA and (iv) the Chairman of the Grievance and Ethics Committee of the Supreme Court. Q118: Are any of the following safeguards relating to temporary employment of judges in political offices (i.e., politicians, ministers, government officials, cabinet members, etc.) in place? A: Temporary employment is not allowed. Q119: How often do judges gain temporary employment in LB: Judicial Canon 37 provides that, while a judge is entitled to political offices? entertain his personal political views, it is inevitable that suspicion A: Very rarely (less than 25%). of being warped by political bias will attach to he who becomes an active member of a political party and a promoter of its interest. C: Judges are not allowed to occupy temporary political offices or This is especially the case for judges of the highest court who, by employment. constitutional mandate, are empowered to review and determine electoral issues. Also, it determines that a judge should not appear at political meetings and indicate support of candidates for political office, nor should he permit his wife or her husband to “give political teas.” Q120: How often does such temporary employment in political offices interfere with the judge’s present or future performance of judicial duties? A: Very rarely (less than 25%). Q121: How often does such temporary employment in political offices undermine the judge’s present or future independence, integrity, or impartiality? A: Very rarely (less than 25%). Q122: By law, can judges combine their work with any of the following? Q124: How often do judges combine their work with any of the A: By law, a judge is not allowed to perform other activities. activities listed in Q.122? LB: Judicial Canon 4 provides that a judge shall not practice law A: Rarely (between 25% and 50%). or solicit clients for a law firm while serving as a judge. In addition, C: In practice, some judges are still connected to law firms and Judicial Canon 6 determines that the Judge is not allowed to recommend clients to these law firms. Some judges also have engage in any business pursuit. However, some judges engage businesses, real estate, and are engaged in other business and in teaching, scholarly activities and church boards. Judicial political activities in disguise. Canon 31 further prohibits judges from entering private business ventures or charitable enterprises. Q125: How often do such activities interfere with the judge’s present or future performance of judicial duties? Q123: By law, are there safeguards in place during A: Very rarely (less than 25%). contemporaneous employment for the activities listed in the Q.122? Q126: How often do such activities undermine the judge’s present or future independence, integrity or impartiality? A: No. A: Very rarely (less than 25%). C: Same comment as Q124. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 107 ANNEX B Judicial pay Q127: Does the law regulate the remuneration of judges by position/grade? A: Yes. LB: Article 72 of the Constitution of Liberia provides that the Justices of the Supreme Court and all other judges must receive salaries, allowances, and benefits as established by law. Judicial salaries are regulated by the Public Financial Management Act, which was recently updated by the National Remuneration Standardization Act of 2019 (it was not possible to obtain a copy of this Act). Q128: By law, must judicial salary schedules be published? Q129: In practice, are judicial salary schedules published? A: No. A: No. Q130: By law, does remuneration depend on performance? A: No. Q131: In 2022, what was the yearly salary (in local currency) of a first-instance judge with 10 years of experience (including, as applicable, 13th salary, bonuses, etc.)? A: A judge has a salary of US$5,000 before taxes after the 2019 National Harmonization Act. However according to experts, Law School Graduates Magistrates earn around US$1300-2000 per month, Judicial Institute Trained Magistrates (college graduates who undertook training at the Judicial Service Institute to serve as Magistrates) earn around US$500-750 per month, Specialized Courts Judges (Judges of Specialized Courts who are law school graduates) earn around US$350 per month, College graduate- Magistrates earn around US$200-300 per month, Apprentices Magistrates (Individuals with no formal training but are performing the roles of magistrates in remote towns and villages because of unavailability of qualified individuals) earn around US$100 per month. Q132: In 2022, what was the yearly salary (in local currency) of the Minister of Justice (including, as applicable, 13th salary, bonuses, etc.)? A: N/A. Q133: In 2022, what was the yearly salary (in local currency) of a partner in a local law-firm (including bonuses, as applicable)? A: N/A, lawyers in Liberia mostly work on success fees, making an estimate difficult. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 108 ANNEX B Q134: Are there significant variations in salary among judges in comparable positions? A: Yes. C: At the Magistrate level, there are at least 5 salary types: Law School Graduates Magistrates are the highest paid, earning around US$1300-2000 per month. Judicial Institute Trained Magistrates (college graduates who undertook training at the Judicial Service Institute to serve as Magistrates) earn around US$500-750 per month. Specialized Courts Judges (Judges of Specialized Courts who are law school graduates) earn around US$350 per month. College graduate-Magistrates earn around US$200-300 per month. Apprentices Magistrates (Individuals with no formal training but are performing the roles of magistrates in remote towns and villages because of unavailability of qualified individuals) earn around US$100 per month. Q135: In 2022, what was the budget (in local currency) of the largest first instance civil court? A: N/A. Q136: In 2022, how many judges did the court referred to in Q.135 have? A: N/A. Q137: Salary: First instance professional judge at the beginning of his career A: N/A. Q138: Salary: First instance professional judge at the beginning of her career – Women A: N/A. Q139: Salary: Judge of Supreme Court or Highest Appellate Court A: N/A. Q140: Salary: Judge of Supreme Court or Highest Appellate Court – Women A: N/A. Appeal rates and reversal rates Q141: Percentage of first instance decisions (civil cases) subject to appeal A: N/A. Q142: Percentage of first instance decisions (administrative cases) subject to appeal A: N/A. Q143: Percentage of first instance decisions (civil cases) overturned in appeal A: N/A, this data is not collected by the judiciary. Q144: Percentage of first instance decisions (administrative cases) overturned in appeal A: N/A, this data is not collected by the judiciary. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 109 ANNEX B Consistency of decisions Q145: Are judicial decisions a source of law? A: Yes. LB: Article 65 of the Constitution of Liberia provides that Supreme Court decisions are final and binding and cannot be subject to appeal or review by another branch of government. Also, pursuant to Article 2, the Supreme Court has judicial review power to declare unconstitutional any law that is inconsistent with the Constitution. Q146: If “Yes” to Q.145, are decisions from the highest/ supreme court the only source of law? A: Yes, only Supreme Court opinions are a source of law, which is known as precedent or judge-made law. Decisions of circuits courts and other lower courts are binding only to the parties involved. Q148: In practice, how often is this departure stated and explained? A: Rarely (between 25% and 50%). Q147: If “Yes” to Q.145, does departure from previous case law need to be stated and motivated? C: There is no legal requirement to do so, but it is generally agreed that departure from previous case law must be decided A: No by the Supreme Court, by stating the rationale for the change in LB: N/A, not regulated by law. jurisprudence in the corresponding decision. The Supreme Court may either recall a previous opinion, modify or reinstate a totally new opinion on the matter. However, the Supreme Court has not been consistently doing so. Q149: Can the highest/supreme court take decisions on the consistency of case-law of lower courts on its own initiative? A: No. The Supreme Court can reverse a decision by lower courts on the grounds of inconsistency with case law if the decision is appealed before the Court and the latter has jurisdiction to hear the appeal. Q150: Are there other mechanisms in place for the highest/ supreme court to ensure consistency of case-law? A: No. Q152: If so, in practice, how often are these sanctions applied? A: There are no sanctions that can be imposed on a judge for an incorrect legal interpretation. The sole circumstance in which a judge may be sanctioned according to the law is in cases of Q151: By law, are there sanctions when a lower court does not established misconduct or ethical violations. If the Supreme decide consistently with case law? Court determines that a judge has misinterpreted the law, the A: No. appropriate course of action is to overturn the judge’s decision, LB: N/A, not regulated by law. rather than imposing punishment. The Supreme Court does not issue sanctions for judges in its rulings; only the Judiciary Inquiry Commission has the authority to recommend disciplinary actions for a judge if there is evidence of misconduct or unethical behavior. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 110 ANNEX C Annex C Literature Review Motivating the Selection of Indicators Justice matters for development, and empirical studies demonstrate its critical role in fostering a healthy business environment, enhancing sustainable and equitable growth, improving access to public services particularly for the poor, curbing corruption, enhancing public trust in the government, and restraining abuse of power. Cross-country and within-country evidence shows that efficiency of the courts, in the form of higher speed and lower procedural formalism, is a strong correlate of economic development and market performance, as backlogs and slow justice constrain entrepreneurship, innovation, and investment.148 An efficient judiciary is critical to encouraging the entry of new firms and providing them the confidence to invest. Justice institutions are therefore vital to the achievement of the WBG’s twin goals to end extreme poverty and boosting shared prosperity. An effective judiciary is a means of ensuring the rule of law, and the rule of law is the basis of the good governance needed to realize the full social and economic potential of developing societies. When justice institutions operate effectively, accountability increases, trust in the government grows, and citizens and businesses can invest with confidence that their rights will be protected. Justice underpins the political process by protecting individuals’ rights, facilitating collective action, and enabling credible commitment.149 Lack of access to justice often leads to violence and societal conflict. At the extreme, such conflict results in civil war, increasing poverty and limiting the potential of a nation for shared prosperity.150 Access to justice is an important dimension of inclusive growth and can facilitate tackling inequality. Research shows that the inability to access legal and judicial services can be both a result and a cause of poverty and inequality, often perpetuating existing inequalities in other areas, such as educational attainment, health conditions, and employment opportunities. Inability to obtain legal and justice services is often found to have a disproportionate impact on low-income and other disadvantaged groups. As such, effective judicial institutions can contribute to helping people transition out of social exclusion and societal conflict. The WBG recognizes that justice and the rule of law are the foundations for peace and provide a critical underpinning of post-conflict reconstruction. For this reason, they are listed as one of six high-priority issues in FCV settings on which the WBG committed to placing special emphasis in its FCV Strategy. Beyond this strategy, the WBG has strengthened its commitment to this agenda through the Anticorruption Approach, where justice and the rule of law are identified as one of four priority themes for reform. Certain characteristics of the judicial system need to be in place for effective and low-cost enforcement of contracts:151 court procedures need to be accessible, efficient, and produce high-quality judgments, and judges need to be independent.152 When justice institutions operate effectively, accountability increases, trust in the government grows, and businesses can invest with confidence that their rights will be protected. 148. Chemin, M. 2009a. “Do judiciaries matter for development? Evidence from India.” Journal of Comparative Economics 37(2): 230–250. 149. World Bank. 2017. World Development Report 2017: Governance and the Law. Washington, DC: World Bank. 150. Ndulu, B. J., Stephen A. O’Connell, Paul Collier, Robert H. Bates, and Chukwuma C. Soludo. 2007. The Political Economy of Economic Growth in Africa, 1960-2000. Cambridge: Cambridge University Press; and Collier, P. 2007. The Bottom Billion: why the poorest countries are failing and what can be done about it. Oxford: Oxford University Press. 151. Supra World Bank, 2017, World Development Report 2017. 152. Messick, R.E. 1999. “Judicial Reform and Economic Development: A Survey of the Issues.” World Bank Research Observer 14(1): 117–136; and Posner, R. 1998. “Creating a Legal Framework for Economic Development.” World Bank Research Observer 13(1): 1-13. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 111 ANNEX C C.1 Access Access to justice is associated with lower poverty levels and higher rates of entrepreneurship.153 Evidence from debt recovery tribunals in India shows that the speed and affordability of justice greatly increase the use of formal courts.154 Lower court fees in the resolution of commercial disputes are also associated with a smaller size of the informal sector,155 another proxy for access. Empirical evidence on the effect of access to justice on GDP per capita growth in a panel of 83 countries from 1970 to 2014 shows that increasing access to justice by one percent increases the five-year growth rate of GDP per capita by 0.86 p.p.156 An issue that comes up frequently when studying access to justice is legal pluralism.157 In many developing countries the judicial system can be divided into formal and informal, where the formal is under the state (official) and the informal may or may not be under the domain of the state (informal justice system). Informal systems can play a positive role in society by increasing fair justice due to its accessibility.158 In all cases, however, they are buttressed by a functioning formal system. Ali, Deininger, and Goldstein note that the coexistence of different types of customary and formal laws can lead to a situation in which formal laws are disregarded if informal codes are less costly to execute—as is often the case.159 Reversion to informal courts, headed by village elders, leads to resolutions that favor men. Equal access to justice for women is a major concern in dozens of economies. Discrimination in the law is only one of many sources of gender imbalance. A common finding in academic research is that entrenched social norms often render legal access ineffective. Equal opportunities for women depend on a complex interplay of social, cultural, and economic factors. Although laws may be equal, prevailing discriminatory social norms, deeply rooted stereotypes, unconscious bias, and even ignorance or reluctance by institutions responsible for enforcing rights can be a major stumbling block to the implementation of legislation.160 In Pakistan, for example, Holden and Chaudhary161 and Ahmad et al162 find that despite a legal change, women were not able to access justice due to factors such as lack of education and forced marriages. Gedzi highlights a similar result in Ghana, where reforms to inheritance laws led to few positive changes in terms of women’s inheritance.163 The enforcement of rights and women’s ability to seek redress is therefore critical to translating formal laws into real outcomes. There is some evidence linking the enforcement by courts of specific laws to better outcomes for women. Agarwal documents a link between women’s land rights enforcement and 153. Sen, A. 2009. The Idea of Justice. Boston: Harvard University Press; and Lichand, G. and Rodrigo R. Soares. 2014. “Access to justice and entrepreneurship: Evidence from Brazil’s special civil tribunals.” The Journal of Law and Economics 57(2): 459–499. 154. Visaria, S. 2009. “Legal reform and loan repayment: The microeconomic impact of debt recovery tribunals in India.” American Economic Journal: Applied Economics 1(3): 59–81; and Lilienfeld-Toal, U. V., Dilip Mookherjee, and Sujata Visaria. 2012. “The distributive impact of reforms in credit enforcement: Evidence from Indian debt recovery tribunals.” Econometrica 80(2): 497–558. 155. Djankov, S., Rafael La Porta, Florencio Lopez-de Silanes, and Andrei Shleifer. 2003. “Courts.” The Quarterly Journal of Economics 118(2): 453–517. 156. Deseau, A., Adam Levai, and Michèle Schmiegelow. 2019. Access to Justice and Economic Development: Evidence from an International Panel Dataset. LIDAM Discussion Papers IRES 2019009. Brussels: Université Catholique de Louvain, Institut de Recherches Economiques et Sociales (IRES). 157. Djurfeldt, A.A. 2020. “Gendered land rights, legal reform and social norms in the context of land fragmentation-A review of the literature for Kenya, Rwanda and Uganda.” Land Use Policy 90: 104-305. 158. Ahmad, J., and Georg von Wangenheim. 2021. “Access to justice: An evaluation of the informal justice systems.” Liberal Arts and Social Sciences International Journal 5(1): 228-244. 159. Ali, D., Klaus Deininger, and Markus Goldstein. 2014. “Environmental and gender impacts of land tenure regularization in Africa: Pilot evidence from Rwanda.” Journal of Development Economics 110(3): 262-275. 160. Hyland, M., Simeon Djankov, and Pinelopi K. Goldberg. 2020. “Gendered Laws and Women in the Workforce.” American Economic Review: Insights 2(4): 475-90. 161. Holden, L., and Azam Chaudhary. 2013. “Daughters’ inheritance, legal pluralism, and governance in Pakistan.” The Journal of Legal Pluralism and Unofficial Law 45(1): 104-123. 162. Ahmad, M., Moazma Batool, and Sophia F. Dziegielewski. 2016. “State of Inheritance Rights: Women in a Rural District in Pakistan.” Journal of Social Service Research 42(5): 622-629. 163. Gedzi, V.S. 2012. “Women’s property relations after intestate succession PNDC law 111 in Ghana.” Research on Humanities and Social Sciences 2(9): 211-219. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 112 ANNEX C their possibility of leaving a violent spouse.164 Deininger et al165 show that the reform of India’s Hindu Succession Act increased the likelihood of daughters inheriting land. Similarly, reforms to the Succession Law in Rwanda made it more likely for women to leave their marriages while still receiving permanent rights to land, and increased women’s ability to resist the customary practice of polygamy.166 JUPITER’s Access Pillar measures the ability of the justice system to deliver outcomes that are accessible to all, irrespective of location, wealth, status, gender, or disability. This includes eliminating barriers that prevent people from understanding and exercising their rights, and delivering services to all parties, including those facing financial and other disadvantages. Access to justice starts with the ability of any party to access and understand the most updated legal framework and case law. Several research articles aided the selection of areas to measure and question design. On proximity, a study in Peru finds that interventions designed to improve judicial coverage for populations located far from important urban centers significantly shift the resolution of conflicts away from informal mechanisms and toward the newly provided formal mechanisms; increase the use of complementary services, such as the use of lawyers; improve the perception of residents regarding social mores and the law; and ultimately marginally reduce the incidence of self-reported conflicts. Proximity to justice also improves outcomes for residents in the area of child support conflicts, although, in other types of conflicts, we find no impact on outcomes.167 These interventions included the construction and staffing of justice modules—physical structures which housed courts, prosecutors, and public defenders. Similar results were found in Bangladesh, where the government focused on establishing Village Courts to ensure justice locally without high costs due to travel. For many in Bangladesh, village courts remain the only legal institution that exists at the doorstep of the rural poor people for the privilege of justice.168 Research on proximity in high-income countries finds similar results. A study in France emphasizes the central role of court proximity for the good functioning of the labor market. In 2008, when the French government enacted a reform that reduced the number of labor courts by one quarter, many workers and employers had to travel further to proceed with conflict litigation. This had a measurable effect: cities that experienced an increase in the distance to their associated labor court suffered from a lower growth rate of job creation (−4 percentage points), job destruction (−4.6 pp) and firm creation (−6.3 pp) between 2007 and 2012 compared to unaffected cities.169 Equal access by women, ethnic minorities, people with disabilities, and the indigent is also benchmarked. This includes legal aid, which is a necessary part of any legal system.170 Access to justice for disadvantaged groups should contribute to increasing inclusion and socio-economic integration, but barriers in the way of access to justice, such as lack of education, information, identity documents, and material resources are sometimes too extended for these people. The inability of disadvantaged people to access legal services is both a result and a cause of the low degree of inclusion and development, as well as the high degree of vulnerability.171 Persons with disabilities often find themselves marginalized by the justice systems. Legal 164. Agarwal, B. 2003. “Gender and land rights revisited: exploring new prospects via the state, family and market.” Journal of Agrarian Change 3(1-2): 184-224. 165. Deininger, K., Aparajita Goyal, and Hari Nagarajan. 2013. “Women’s inheritance rights and intergenerational transmission of resources in India.” Journal of Human Resources 48(1): 114-141. 166. Daley, E., Rachel Dore-Weeks, R., and Claudine Umuhoza. 2010. “Ahead of the game: land tenure reform in Rwanda and the process of securing women’s land rights.” Journal of Eastern African Studies 4(1): 131-152. 167. Soares, Y, Maria M. Sviatschi, Raul Andrade, and Jimena Montenegro. 2010. “The Impact of Improving Access to Justice on Conflict Resolution: Evidence from Peru.” OVE Working Papers 0810. Washington, DC: Inter-American Development Bank, Office of Evaluation and Oversight (OVE). 168. Bhuiyan, M., Mohammad S. Islam, and Mohammad F. Salam. 2019. “Access to Justice through Village Court for Rural Poor: The Case of Bangladesh.” International Journal of Publication and Social Studies 4(1): 1-10. 169. Espinosa, R., Claudine Desrieux, and Marc Ferracci. 2018. “Labor market and access to justice.” International Review of Law and Economics54(1): 1-16. 170. Gradinaru, N. 2017. “The Right to A Fair Trial Free Access to Justice.” Management Strategies Journal, Constantin Brancoveanu University 35(1): 68-75. 171. Petre, G. 2021. “Access to justice - Trust and perceptions of the Roma minority.” Journal of Community Positive Practices 17(2): 31-45. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 113 ANNEX C aid workers not only must be knowledgeable concerning relevant laws and regulations, but must also be able to interact effectively on a personal, professional level with persons who have disabilities. Improving access will require well-prepared legal aid workers to answer the call.172 Similar results were found in the study of legal aid and access to justice for women victims of domestic violence in India.173 C.2 Efficiency An efficient judicial system, which resolves disputes in a timely manner, supports economic growth through several channels.174 Where judicial systems guarantee the enforcement of rights, creditors are more likely to lend at better rates,175 businesses are more productive,176 firm size increases,177 and investment rises.178 Some sectors rely on the judiciary more than others because of the need for relationship-specific investments.179 An economy without an effective judiciary is trapped in the production of generic goods to avoid such investments. Such economies cannot rise on the value-chain of exports.180 Because of the relation with the ladder of value enhancement, foreign direct investment is positively correlated with the efficiency of legal institutions which, in turn, is linked to better growth outcome.181 Survey evidence from Senegal shows that firms are willing to pay higher legal fees to achieve post-reform speed, suggesting positive benefits of judicial reform.182 Several studies have shown a link between entrepreneurship rates and the efficiency of the judicial system, suggesting that an efficient judiciary promotes entrepreneurial activity.183 JUPITER’s Efficiency Pillar measures the ability of courts to deliver justice in a timely and cost-effective manner, including by maximizing the use of case management and electronic tools. Several research pieces aided the selection of areas to measure and question design. Active case management has been consistently highlighted as a necessary tool in the pursuit of court efficiency. The Indian judicial system is plagued by high disposition times across all levels. Gupta and Bolia use simple measures of judicial resources, namely, number of judges and staff members as inputs, and two outputs, number 172. Larson, D. 2014. “Access to Justice for Persons with Disabilities: An Emerging Strategy.” Laws 3(2): 1-19. 173. Hartanto, R, Siany I. Liestyasari, and Atik C. Budiati. 2018. “Paralegals and Women Access to Justice: Making Access to Justice of Women Victims of Violence Effective.” The Journal of Social Sciences Research 47(2): 807-813. 174. Esposito, G., Sergi Lanau, and Sebastiaan Pompe. 2014. Judicial System Reform in Italy – A Key to Growth. IMF Working Paper WP/14/32. Washington, DC: International Monetary Fund. 175. Bae, K., and Vidhan Goyal. 2009. “Creditor Rights, Enforcement, and Bank Loans.” Journal of Finance 64(2): 823-860. 176. Chemin, M. 2020. “Judicial efficiency and firm productivity: Evidence from a world database of judicial reforms.” Review of Economics and Statistics 102(1): 49–64. 177. Giacomelli, S. and Carlo Menon. 2012. “Firm Size and Judicial Efficiency in Italy: Evidence from the Neighbour’s Tribunal.” SERC Discussion Papers 0108. London: Spatial Economic Research Centre; and Chemin, M. 2009b. “The Impact of the Judiciary on Entrepreneurship: Evaluation of Pakistan’s Access to Justice Programme.” Journal of Public Economics 93(1-2): 114–125. 178. Djankov, S., Olive Hart, Caralee McLiesh, and Andrei Shleifer. 2008. “Debt enforcement around the world.” Journal of Political Economy 116(6): 1105–1149; and Aboal, D., Nelson Noya, and Andrés Rius. 2014. “Contract enforcement and investment: A systematic review of the evidence.” World Development 64(3): 322–338. 179. Nunn, N. 2007. “Relationship-specificity, incomplete contracts, and the pattern of trade.” The Quarterly Journal of Economics 122(2): 569–600. 180. Levchenko, A. 2007. “Institutional quality and international trade.” The Review of Economic Studies 74(3): 791–819; and Amirapu, A. 2021. “Justice delayed is growth denied: The effect of slow courts on relationship-specific industries in India.” Economic Development and Cultural Change 70(1): 415-451. 181. Sabir, S., Anum Rafique, and Kamran Abbas. 2019. “Institutions and FDI: evidence from developed and developing countries.” Financial Innovation 17(5): 8-28; and Bénassy-Quéré, A., Maylis Coupet, and Thierry Mayer. 2007. “Institutional Determinants of Foreign Direct Investment.” World Economy 30(5): 764-782. 182. Kondylis, F. and Mattea Stein. 2018. “The Speed of Justice.” Policy Research Working Paper 8372: 1-64. Washington, DC: World Bank. 183. Ippoliti, R., Alessandro Melcarne, and Giovanni B. Ramello. 2015. “Judicial Efficiency and Entrepreneurs’ Expectations on the Reliability of European Legal Systems.” European Journal of Law and Economics 40 (1): 75–94; and Ardagna, S., and Annamaria Lusardi. 2009. “Explaining International Differences in Entrepreneurship: The Role of Individual Characteristics and Regulatory Constraints.” In Joshua Lerner and Antoinette Schoar (eds.). International Differences in Entrepreneurship. Chicago: University of Chicago Press. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 114 ANNEX C of civil and criminal cases disposed.184 The results identify courts that are efficient in disposing cases, specifically courts that use active case management. A study using data on disposition times in Italy shows that three supply policies can make a significant contribution to the efficiency of the system: active case management, break-ups of large courts of justice into smaller ones (to exploit economies of scale), and the use of offsite technologies. According to this research, these three measures can reduce the disposition time by around 30 percent. 185 Clearance rates are also used as a measure of efficiency in the literature, as shown by a study using these rates as an indirect measure of the time needed to dispose of cases in Greek courts.186 The data suggest that the ratio of staff to total number of cases affects the time needed to dispose of cases in appeals courts and higher civil trial courts, but not in lower civil trial courts or administrative courts. In these courts, lower clearance rates appear instead to be connected to increased emphasis on case management. Similar results were found in a study focusing on the performance of 223 Portuguese first instance courts during the period of 2007–2011. The study shows that only 15 percent of the 223 courts make an efficient use of their resources in each year, and that improvement can be achieved with better case management and more adequate staffing.187 Clearance rate and the age of active pending caseload are both measures of backlog. Backlogs can result from inefficiencies, but occasionally can also be the product of short-sighted judicial reform. Brazil’s 1988 Constitution, for example, so expanded the range of constitutional rights, including new social and economic guarantees, and the kinds of plaintiffs entitled to bring constitutional actions, that backlogs multiplied many times over.188 This suggests that the expansion of enforceable rights needs to be accompanied by the introduction of appropriate resources and case management tools. Appropriate resources, both in terms of court staffing and in terms of budgets, are often mentioned as determinants of court efficiency, as highlighted by all the previously mentioned research. In this context, several studies explore the impact on outcomes by an increase in the number of judges. A recent analysis of the determinants of the performance of commercial district courts in Poland in the period 2009– 2016 in terms of the number of resolved cases, indicates that an increase in the number of judges can significantly enhance the number of resolved cases.189 C.3 Quality Academic studies suggest that quality is predicated to a large extent on judicial independence. The literature utilizes two ways of measuring the degree of quality of court judgments. First, by measuring the extent to which the judgment meets a certain number of features and predefined indicators (conformity with requirements); and second, by measuring the gap between the expectations that court users had before using the courts and the assessment made following their use (conformity with expectations). The usual indicator on the former is the consistency and predictability of judgments, whether judgments follow precedents.190 The most often-used empirical measure of the latter is the probability that the first- 184. Gupta, M., and Nomesh B. Bolia. 2020. “Efficiency measurement of Indian high courts using DEA: A policy perspective.” Journal of Policy Modeling 42(6): 1372-1393. 185. Peyrache, A and Angelo Zago. 2020. “The (in)efficiency of Justice. An equilibrium analysis of supply policies.” CEPA Working Papers Series WP042/020. Australia: School of Economics, University of Queensland. 186. Mitsopoulos, M and Theodore Pelagidis. 2007. “Does staffing affect the time to dispose cases in Greek courts?” International Review of Law and Economics 27(2): 219-244. 187. Santos, S and Carla A.F. Amado. 2014, “On the need for reform of the Portuguese judicial system – Does Data Envelopment Analysis assessment support it?” Omega 47(3): 1-16. 188. Prillaman, W. C. 2000. The Judiciary and Democratic Decay in Latin America: Declining Confidence in the Rule of Law. Westport: Praeger; and Rosenn Keith, S. 2000. “Judicial Review in Brazil: Developments Under the 1988 Constitution.” Southwestern Journal of Law and Trade in the Americas 7(3): 291–319. 189. Bełdowski, J, Łukasz Dąbroś, and Wiktor Wojciechowski. 2020. “Judges and court performance: a case study of district commercial courts in Poland.” European Journal of Law and Economics 50(1): 171-201. 190. Contini, F., and Davide Carnevali. 2010. The quality of justice in Europe: Conflicts, dialogue and politics. Rome: Research Institute on Judicial Systems of the Italian National Research Council. IMPROVING JUSTICE IN LIBERIA | A 2023 JUPITER ASSESSMENT 115 ANNEX C instance judgment gets overturned on appeal.191 Increasingly, however, surveys of user experience are also the basis for judicial quality assessments.192 JUPITER’s Quality Pillar benchmarks the determinants of the quality of decisions, including the qualification of judges, their salaries, the consistency of their decisions with case law and the consequent rate of reversal in appeal. Several research pieces supported the selection of the areas to measure and question design. A recent study using data from Nepal assessed the determinants of disposition time and the presence of the quantity–quality tradeoff. It found that in Nepal judicial staffing exhibits a robustly positive effect on court output. Quality increases with the qualification of judges and can be seen in fewer reversals on appeal. The study did not find evidence implying that increasing court output would decrease adjudicatory quality.193 Similar results showing the importance of the quality of first instance rulings on reducing appeal rates were found in a study using Greek data.194 The use of reversal in appeal as a measure of quality is frequent in the literature. A study based on data from the US’s Fifth Circuit Court shows that the probability of being promoted is significantly and negatively correlated with the reversal rate, leaving judges to focus on the quality of the judgments they write to avoid reversal and increase the chances of promotion.195 Evidence from the United Kingdom is more supportive of the view that reversals on appeal are a good measure of judicial quality. The chance of promotion from the Court of Appeal to the House of Lords was significantly determined by a lower reversal rate of the judge’s decisions in the House of Lords.196 Research using data for a set of European nations focuses on the most effective way to use national resources to enhance judicial quality. It considers the effect of different uses of government resources on measures of judicial quality, including higher education and qualification of judges. The study finds that the most straightforward way for a nation to improve its judiciary involves the dedication of additional resources, and that these resources would best be devoted to increasing judicial pay.197 The pivotal role of judicial pay on the quality also emerges from an analysis of the Mexican judiciary, which found that low judicial salaries left the best-trained and most capable young law graduates inclined to pursue careers in private practice. Consequently, lawyers with uncompetitive institutional pedigrees, undistinguished records of professional experience, and/or modest socio-economic backgrounds tended to pursue careers on the bench. This observation is corroborated, in part, by the findings of 1985 and 1993 judicial surveys that an average of 93.15 percent of Mexico’s federal judges and magistrates graduated from what are generally considered to be inferior quality law programs.198 Two key French judicial officials, the advocate general and the reporting judge, “pay extremely close attention to past judicial decisions. (…) A complete conclusion or rapport always cites and analyzes relevant case law.” This fact is disguised by the form of French judicial decisions, which by tradition are very brief and do not cite case law. These decisions are written in a single run-on sentence, usually with a cascade of “whereas” clauses.199 191. Calabrese, R. 2013. La giustizia vista dall’utente. Un’indagine di customer satisfaction presso il Palazzo di Giustizia di Torino. Torino: University of Torino; and Coviello, D., Andrea Ichino, and Nicola Persico. 2014. “Time allocation and task juggling.” American Economic Review 104(2): 609–623. 192. Mbassi, J. C., Axel D. Mbarga, and Richard N. Ndeme. 2019. “Public Service Quality and Citizen-Client’s Satisfaction in Local Municipalities.” Journal of Markets, Development and Competition 13(4): 110–123. 193. Grajzl, P. and Shikha Silwal. 2020, “The functioning of courts in a developing economy: evidence from Nepal.” European Journal of Law and Economics 9(1): 101-129. 194. Supra Mitsopoulos and Pelagidis, 2007. 195. Higgins, R.S., and Paul H. Rubin. 1980. “Judicial Discretion.” Journal of Legal Studies 9(1): 129-138; and Posner, R. 1977. Economic Analysis of Law. Second Edition. Boston: Little Brown and Company. 196. Salzberger, E. M. 1993. “A positive analysis of the doctrine of separation of powers, or: Why do we have an independent judiciary?” International Review of Law and Economics 13(4): 349-379; and Salzberger, E.M., and Paul Fenn. 1999. “Judicial Independence: Some Evidence from the English Court of Appeal.” Journal of Law and Economics 42(2): 831-47. 197. Cross F.B., and Dain C. Donelson. 2010. “Creating Quality Courts.” Journal of Empirical Legal Studies 7(3): 490-510. 198. Kossick, R. 2004. “The Rule of Law and Development in Mexico.” Arizona Journal of International and Comparative Law 21(3): 715–834. 199. Lasser, M. 2004. Judicial Deliberations: A comparative analysis of judicial transparency and legitimacy. Oxford: Oxford University Press. 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