Access to Justice and Gender-Based Poverty
Introduction
The link between access to justice and gender-based poverty is twofold. On the one hand, gender-based poverty creates additional barriers to access to justice for women living in poverty. On the other, access to justice holds the potential to address the non-realisation of economic, social, and cultural (ESC) rights of people affected by gender-based poverty. This is particularly important because the realisation of ESC rights is often directly affected by poverty, and it further acknowledges and strengthens the interdependence and indivisibility of human rights.
According to the Special Rapporteur on Extreme Poverty and Human Rights, poverty is multidimensional and consists of a combination of income poverty, human development poverty, and political and social exclusion (Special Rapporteur on Extreme Poverty and Human Rights 2008: para 23). It is, moreover, a gendered phenomenon, as, worldwide, women are disproportionately living in poverty.
Gender-based poverty creates procedural, financial, institutional as well as social barriers to the right of access to justice. Furthermore, access to justice for women is important for ensuring the full enjoyment and realisation of all rights provided for in international human rights treaties and conventions, as well as in addressing gender-based poverty. Providing women with access to legal remedies and support can help them challenge discriminatory laws and policies and demand the realisation of ESC rights, such as the right to education, work, social security, and health. CEDAW recognises this potential, and states that ‘[t]he right to access to justice for women is essential to the realisation of all the rights …’ (CEDAW 2015).
This article demonstrates the contribution that the right of access to justice makes to the realisation of economic, social, and cultural rights of people affected by gender-based poverty. It argues that, as a civil and political right, the right of access to justice also strengthens the indivisibility of human rights.
Barriers to access to justice in gender-based poverty
Barriers to access to justice for women affected by gender-based poverty can be procedural, financial, institutional, and social (Carmona & Donald 2014; Special Rapporteur on Extreme Poverty and Human Rights 2012).
• Procedural barriers for women are the lack of legal information, formalism, or the lack of legal representation (Carmona & Donald 2014). In other words, women affected by gender-based poverty may lack legal identity because they are not registered at birth, which can be related to practical reasons or a lack of recognition by the authorities due to discrimination.
• Financial barriers to pursuing legal remedies can make access to justice costly and therefore unavailable, specifically for women affected by gender-based poverty, which might create the need to prioritise other basic survival needs over taking legal avenues, particularly in view of their gendered role as primary caregivers to children or other family members.
• Institutional barriers such as inadequate capacity and resources, corruption or excessive delays can make it difficult for women affected by gender-based poverty to access justice, as long-drawn-out court proceedings take time and energy.
• Lastly, social barriers such as stigma, fear of reprisals, socio-economic subordination or limited legal awareness hinder access to justice. Especially in the case of gender-based violence, women may fear the stigma associated with pursuing legal matters, and may not wish to expose themselves to additional social discrimination or abuse. This leads them to refrain from claiming entitlements or challenging abusers.
Examining Gender-Related Poverty within the UN Human Rights Framework: Ensuring Access to Justice
International Covenant on Civil and Political Rights
In the International Covenant on Civil and Political Rights (ICCPR), the right of access to justice is guaranteed in articles 2, 14 and 26. The Human Rights Committee points out that, for persons affected by poverty, the right to equality before courts and tribunals and to a fair trial is linked to the imposition of fees on the parties for the effective access of these rights.
In its General Comment No. 32, and in views such as Lindon v Australia, the Committee addresses financial barriers to access to justice, and holds that the imposition of fees for proceedings can de facto prevent access to justice and give rise to issues under article 14 of the ICCPR (HRCttee, General Comment No. 32, 2007, CCPR/C/GC/32, para 11; HRCttee, Lindon v Australia, 1995, CCPR/C/64/D/646/1995, para 6.4).
The Committee’s argument draws solely on financial barriers, and therefore on the income definition of poverty. It leaves out other important aspects of not being able to access the right to justice for people living in poverty, such as challenges related to human development poverty, or social and political exclusion.
Addressing the development dimension of poverty in relation to access to justice would, for example, mean that the Committee recognised that legal literacy, and therefore access to education as well as time, are important components in realising the right, and that its effectiveness does not depend solely on financial resources.
The gender-specific implications of access to justice are also recognised by the Human Rights Committee when it refers to discrimination and the equal right of men and women in relation to procedural laws and their application. Unfortunately, the Committee falls short of looking at gender-based poverty in relation to access to justice in its recent General Comments or Concluding Observations (HRCttee, General Comment No. 32, 2007, CCPR/C/GC/32, para 65; HRCttee, Concluding Observations, Belgium, 2019, CCPR/C/BEL/CO/6).
There is considerable potential for the Human Rights Committee to look at the notion of access to justice in a more holistic manner, and to address the multidimensional facets of gender-based poverty, and how this affects access to justice in relation to civil and political rights in the Convention.
Moreover, the right to access to justice can also serve as an important entry point to addressing the interdependence between rights enshrined in ICCPR – so-called civil and political (CP) rights – and ESC rights guaranteed in the International Covenant on Economic, Social and Cultural Rights ICESCR.
For example, the obligation to provide for an effective remedy in relation to the violation of article 26 of the ICCPR has enabled greater protection to the right to health, not primarily guaranteed in ICCPR. In the case of Siobhán Whelan v Ireland (HRCttee, Siobhán Whelan v Ireland, 2014, CCPR/C/119/D/2425/2014), the Committee held that the prohibition of abortion in Ireland, which forced women to terminate their pregnancies in England, was a violation of the prohibition of inhuman and degrading treatment and constituted discrimination based on socio-economic background in that it placed a heavy burden on women of ‘low socioeconomic status when compared to other women with superior economic means’ (ibid.: para 4).
Accordingly, the Committee concluded that the failure of the state party to provide the person with the services that she required constituted discrimination and violated her rights under article 26 of the Covenant. The Committee further considered that the state party is under an obligation to provide the author with an effective remedy:
“[T]he State party is obligated to … make available to her any needed psychological treatment. The State party is also under an obligation to take steps to prevent similar violations occurring in the future [and should] amend its law on voluntary termination of pregnancy … with respect to ensuring effective, timely and accessible procedures for pregnancy termination in Ireland, and take measures to ensure that health-care providers are in a position to supply full information on safe abortion services … (ibid.: para 9).”
This case shows that the application of the principles derived from the right to access to justice has certain implications for the right to health, such as psychological treatment and access to reproductive rights for women. In the case the Committee therefore recognises the interdependence of CP rights as well as ESC rights.
Convention on the Elimination of all Discrimination against Women
At the international level, the Convention on the Elimination of all Discrimination against Women (CEDAW) is clearly designed to address access to justice issues related to gender-based poverty. CEDAW promotes access to justice through its non-discrimination and substantive equality notion woven into the Convention. In General Recommendation Nos. 28 and 33 (CEDAW, General Recommendation No. 33, 2015, CEDAW/C/GC/33, paras 14(c), 17(a) and (f); General Recommendation No. 28, 2010, CEDAW/C/GC/28, paras 33-34), the Committee clarifies states’ obligations in relation to ensuring access to justice provided for in articles 2(c), 3, 5 and 15 of CEDAW. These state obligations extend to challenges related to poverty, and therefore offer an effective tool to address access-to-justice issues for people affected by gender-based poverty.
The Committee recognises procedural barriers by mentioning, inter alia, delays and excessive length of proceedings (CEDAW, General Comment No. 33, 2015, CEDAW/C/GC/33, para 18(d)). It further recommends that state parties provide legal aid, and ensure that fees for issuing and filing documents, as well as court costs, are reduced for women with low incomes, and waived for women living in poverty. This addresses financial barriers to access to justice.
CEDAW recognises institutional barriers by mentioning deficiencies in the quality of justice systems, such as gender-insensitive judgements, and addresses them by stating that it ‘requires that justice systems be contextualised, dynamic, participatory, open to innovative practical measures, gender-sensitive and take account of the increasing demands by women for justice’ (ibid.: para 14(d)).
Lastly, social barriers such as stigmatisation are also addressed by the CEDAW Committee. Accordingly, it urges that states must
“[e]nsure that the principle of equality before the law is given effect by taking steps to … abolish discriminatory barriers to access to justice, including … [s]tigmatisation of women who are fighting for their rights by active participants in the justice system (ibid.: para 25(iii))”.
In addition to its General Recommendations, the Committee discusses the role of gender-based poverty in relation to the right to access to justice in its Concluding Observations. The Committee shows attentiveness to all three dimensions of gender-based poverty and their effect on access to justice. For example, in its Concluding Observations on Senegal, the Committee is concerned about
“[p]ersisting barriers faced by women in effectively gaining access to justice, including legal illiteracy, stigmatisation of victims, stigmatisation of women fighting for their rights, fear of reprisals, difficulties in gaining access to justice infrastructure, difficulties in producing evidence and the limited number of female police officers, especially in rural and peri-urban areas … [and] the limited protection offered by the free legal aid system for women without sufficient means’ (CEDAW, Concluding Observations, Senegal, 2015, CEDAW/C/SEN/CO/3-7, paras 12(a) and (b)).”
The CEDAW Committee’s views also show attentiveness to the barriers women affected by gender-based poverty face in accessing justice. In the case of Alyne da Silva Pimentel Teixeira (CEDAW, Alyne da Silva Pimentel Teixeira v Brazil, 2011, CEDAW/C/49/D/17/2008), the Committee looks at the right to health and access to justice. The case concerns the death of Alyne da Silva Pimentel Teixeira, who was pregnant, after extensive hours of neglect by a health centre.
The Committee looks at the case through a non-discrimination lens based on gender, race, and ‘socio-economic background’ (ibid.: paras 7.2, 7.7), showing attentiveness to the context of gender-based poverty. The Committee considers that the state party violated its obligations under article 12 of CEDAW, the right to access to health (ibid.: para 8), and further holds that there was a violation of the right to access to justice under article 2(c) of CEDAW, because the state failed to ensure the effective protection of Alyne da Silva Pimentel Teixeira’s right to health, to establish a system to ensure effective judicial protection, and to provide adequate judicial remedies for her family.
The case highlights the need for effective access to justice as a positive obligation derived from the right to health and how the two interrelate with each other, in so doing exemplifying the interdependence of both ‘categories of rights’.
Addressing Gender-Based Poverty Through Access to Justice in the European Convention on Human Rights
At the European regional level, the right to a fair trial set forth in article 6(1) of the European Convention on Human Rights (ECHR) similarly encompasses the obligation to facilitate effective access to courts for people living in poverty. Although it is a procedural guarantee, it has also been used in claims related to ESC rights, as it extends to substantive rights that arise under national law, such as social security or social assistance (Leijten 2017: 42–44; Lavrysen 2015: 301).
In the case of Airey v Ireland (ECtHR, Chamber, Airey v Ireland, 6289/73 (1979), §§ 24–28), the Court recognised the right to legal aid under article 6 of the ECHR. The case concerned a woman who could not afford a lawyer and therefore needed legal aid to access justice and ensure the effectiveness of her right to a fair trial. The Court held that:
“[t]he Convention is intended to guarantee not rights that are theoretical or illusory but rights that are practical and effective. This is particularly so of the right of access to the courts in view of the prominent place held in a democratic society by the right to a fair trial ....”
To do so, the Court recognised that this could include socio-economic aspects. The inclusion of ESC rights within the scope of the ICCPR was the major contribution of this important judgment (Derdek & Kenna 2023).
Most illustrative for the socio-economic dimension of article 6 of the ECHR is the application of this provision in the field of social security, although it also extends to any other ESC right (ECtHR, Salesi v Italy, 13023/87 (1993), § 19). The procedural safeguards provided for under article 6 are also applied to other substantive provisions such as the right to health or housing (ECtHR, Mehmet Şenturk and Bekir Senturk v Turkey, 13423/09 (2013) (health); ECtHR, Fazia Ali v the United Kingdom, 40378/10 (2016), §§ 58–59 (housing)).
In most cases this means that certain procedural aspects need to be in place without guaranteeing a substantive individual interest of an economic or social nature (Lavrysen 2015: 301).
For example, in the case of Yordanova and Others v Bulgaria (ECtHR, Yordanova and Others v Bulgaria, 25446/06 (2012)), concerning eviction, the ECtHR looked at whether the interference with the right to private life under article 8 of the ECHR was necessary in a democratic society, and held that procedural safeguards are especially important in determining whether the state was within its margin of appreciation because the loss of one’s home is a most extreme form of interference. This warrants in principle an independent tribunal to determine the proportionality and reasonableness of the measure and an explanation demonstrating that the eviction was necessary. The Court looked at whether the applicants were supported in their access to justice and took their disadvantaged position into consideration, stating:
“[T]he disadvantaged position of the social group to which the applicants belong could and should have been taken into consideration, for example, in assisting them to obtain officially the status of persons in need of housing which would make them eligible for the available social dwellings on the same footing as others. (Ibid.: § 132).”
Hence, the underprivileged status of an applicant must be a weighty factor in considering approaches to dealing with their unlawful settlement and, if their removal is necessary, in deciding on its timing, modalities and, if possible, arrangements for alternative shelter. In relation to gender-based poverty issues, this means that procedural safeguards must be in place and that the state is responsible for supporting women living in poverty in their access to justice in relation to their substantive rights, namely in eviction cases under article 8 of the ECHR, although this does not give rise to an independent right to housing under the ECHR.
While this narrows the potential of addressing ESC rights through provisions in the ECHR, at least it means that the various detailed obligations derived from article 6 and other rights of the Convention must be guaranteed. It also means that, for ESC rights claims covered by article 6, effective access to justice must be provided – which holds the potential for women affected by gender-based poverty to gain access to fair procedures connected to the realisation of their ESC rights under the ECHR.
Addressing Gender-Based Poverty Through Access to Justice in the African Human Rights System
In contrast to the European regional and international level, where economic, social and cultural rights, and civil and political rights are generally found in separate treaties and the right to justice has often been used to overcome the artificial gap between the two sets of rights, the African regional level does not make a distinction between the two ‘types’ of rights.
This holds the potential to address gender-based poverty directly through the provisions in the African Charter on Human and Peoples’ Rights (African Charter), as well as through the Protocol to the Charter on the Rights of Women in Africa (Maputo Protocol). This strengthens access to justice, as rights in the African Charter and the Maputo Protocol are justiciable (Yeshanew 2011). Moreover, the right to access to justice is provided for in various provisions, such as in article 3 and 7 of the African Charter, as well as in article 8 of the Maputo Protocol.
One area where the right to access to justice has been used to define positive obligations for states to ensure the realisation of rights, is in relation to the right to housing. The African Commission on Human and Peoples’ Rights (AComHPR) holds that consultation with those likely to be affected by eviction is a key requirement for states in the housing planning and development process.
In Social and Economic Action Centre and the Centre for Economic and Social Rights v Nigeria (ACHPR, Social and Economic Action Centre and the Centre for Economic and Social Rights v Nigeria, Communication 155/96, 15th Annual Activity Report of the ACHPR (2002); 10 IHRR 282 (2003)), the Commission held that the state’s failure to monitor oil activities and involve local communities in decisions violated the right of the Ogoni people to freely dispose of their wealth and natural resources (as per article 21 of the African Charter).
Although there was no specific link to gender, the case highlights the importance of participation and recognises a state’s positive obligations. This holds the possibility to address issues of gender-based poverty in relation to rights such as the right to adequate housing through participation.
Similarly, at a national level, the South African Constitutional Court’s reasonableness-review standard consists of a process requirement of ‘meaningful engagement’ with affected groups (see Government of the Republic of South Africa v Grootboom & Others 2001 (1) SA 46 (CC), para 44). The participative approach is one example of how the right to access to justice in practice recognises the dimension of social exclusion as part of the multidimensionality of gender-based poverty, and potentially forms a tool to realise other human rights, such as the right to adequate housing for people affected by gender-based poverty in urban areas.
Conclusion
This article demonstrates that the right to access to justice for women affected by gender-based poverty encompasses the obligation to address procedural, financial, institutional as well as social barriers to access to justice. Based on international human rights, states are obliged not only to address the income dimension of gender-based poverty but also to look at the issue from a multidimensional perspective.
Furthermore, the right to access to justice has procedural implications that can be used to overcome an overly static differentiation between the two ‘categories of rights’. The article has shown how this has been successful in relation to the right to health under the ICCPR and CEDAW, as well as the right to private life in eviction cases under the ECHR. Similarly, the reasonableness review established by the South African Constitutional Court includes process-bound requirements that link to the right to access to justice by emphasising ‘meaningful engagement’ in relation to the right to adequate housing in eviction cases.
Most importantly, at the level of the UN, the access-to-justice approach can assist in overcoming the artificial division of ‘categories of rights’ within the two major UN human rights treaties (the ICCPR and ICESCR), thus contributing to a more robust and responsive human rights framework, particularly in relation to issues of gender-based poverty.
written by Kelly Bishop in 2023 during her research visit at SERP, Dullah Omar Institute, University of the Western Cape, special thanks go to Prof Ebenezer Durojaye for his valuable comments on the draft.
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