FACILITATING ACCESS TO JUSTICE THROUGH

LEGAL AID;

MODELS, LAWS AND PRACTICES IN EASTAFRICA:

A CASE OF UGANDA

A PAPER PRESENTED

BY

MRS. HELLEN OBURA, SECRETARY UGANDA LAW

COUNCIL

AT

THE EIGHTH EAST AFRICAN JUDICIAL CONFERENCE

HELD IN ARUSHA, TANZANIA

1.0INTRODUCTION

This paper deals with access to justice in Ugandathrough provision of legal aid. By way of introduction, it looks at justice and access to justice generally. The background covers the International standards, state obligations, and the case of Uganda. It identifies and discusses the legal and regulatory framework and the models used by the different players in Uganda.

Justice refers to standards of rights set or defined by substantive and procedural law and enforced by justice delivery institutions, with the state bearing primary responsibility. Access to justice ultimately relates to whether or not individuals, groups and communities realize their rights from the enforcement of substantive law by the justice delivery institutions[1]. It is an inalienable right provided for under international law that should be enjoyed by people world over. The principle of rule of law demands that there should be equality before the law.

However, equality before the law is meaningless without access to and availability of means for formal access to the justice system, knowledge of legal rights and obligations, and the ability to claim these rights and effectively represent one’s interest regarding obligations. In effect, lack of an effective legal aid system denies financially disadvantaged and vulnerable persons the right to enforce their rights. Access to justice is therefore crucial to ensure that a range of other human rights are met.

2.0BACKGROUND

2.1.International Standards on Access to Justice

Major international and regional conventions to which Uganda is a signatory, for example, the International Convention on Civil and Political Rights, the Convention on Economic, Social and Cultural Rights and the African Charter on Human Rights provide for the right to legal aid. In recognition of the importance of these Conventions and the need to domesticate and implement them locally, a number of international and regional conferences havebeen held and declarations/resolutions made to enhance access to criminal justice. Such declarations/resolutions include:the Kampala Declaration on Prison Conditions 1996, the Kadoma Declaration on Community Service Orders in Africa 1997, the Abuja Declaration on Alternatives to Imprisonment 2002 and the Ouagadougou Declaration on Accelerating Prison and Penal Reform in Africa 2002, and the Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa2004.

2.2.Legal Aid as a State Obligation

Legal aid is a human right and a key ingredient of the right to a fair hearingunder Article 14 of the International Convention on Civil and Political Rights. The state as a key duty bearer to respect, protect, promote and fulfill human rights of citizens, is expected to provide legal aid to those who are unable to afford paid legal services to enable them seek legal redress. This obligation calls for a number of strategies including the establishment of functioning institutions and systems and enhancing access to legal aid.

2.3.The Case of Uganda

The majority of individuals and communities in Uganda are vulnerable, socially excluded and unable to enjoy and effectively claim their rights by virtue of their circumstances, sex or age among other factors: religious, cultural, political and socio- economic e.g. poverty, unemployment, illiteracy and ignorance. Other communities are disadvantaged and marginalised by virtue of their location and voicelessness e.g. minority tribes and those in rural settings and far to reach areas.

In the Participatory Poverty Assessment on Safety, Security, and Access to Justice, conducted by the Justice, Law and Order Sector (JLOS) in 2002, poverty was reported to severely constrain safety, security and access to justice, particularly for women. The poor reported that expensive, cumbersome and complex procedures severely reduced their use of formal justice systems. Constraints highlighted by the poor included lack of access to legal services, gender based obstacles and inadequate legal awareness among others. As a consequence of poverty, disempowerment severely constrains access to justice for the poor. On the other hand, failure to realise legal protection through justice delivery agencies results in disempowerment of the users. The intersection between poverty and access to justice is therefore manifested in empowerment.

The provision of legal aid to the indigent has emerged as a dominant intervention in enhancing access to justice for the poor. This comprises legal representation, mediation, advice and counseling, referral as well as legal education. In Uganda legal aid is defined under the Advocates (Legal Aid to Indigent Persons) Regulations as "the provision of legal advice or representation by a lawyer, an advocate or a paralegal, as the case may be, to a client at no cost or at a very minimal cost".

Legal aid services address the concerns of the poor and vulnerable by focusing on challenges arising from: affordability of user costs, lack of legal representation, alienation due to technicalities and ignorance of legal rights. Legal aid has the potential not only to enable these vulnerable groups resolve their disputes at the family and community level but to enhance awareness of legal and human rights and empower them to claim their rights and advocate for social, policy and legal change at community and national level.

While legal aid interventions do not in principle transform the poverty situation of the recipients of services, they contribute to the empowerment of individuals and communities – a key ingredient of poverty reduction efforts

The Government of Uganda as the key duty bearer to provide legal aid recognizes that access to justice is an important aspect of poverty eradication and central to all processes in the Justice, Law and Order Sector. This is contained in various Government documents including the National Development Plan that was launched in April this year.

3.0.Laws and Practices

3.1.The Legal and Regulatory Framework for Legal Aid

Legal aid services in Uganda have for a long time been provided by both the State and non-state actors without any comprehensive policy backing from the Government. At the annual JLOS review of 2008, an undertaking to develop a national legal aid policy and institutional framework was adopted. A consultant was engaged to develop the policy and the process is on-going. Key issues to be covered by the policy include: the definition of legal aid, institutional arrangements and legal aid service delivery mechanisms, M&E of service delivery, resourcing, standard setting and quality assurance. Until the National Legal aid policy is approved and formally adopted, legal aid services will still largely remain the domain of non state actors.However, the right to legal aid is contained in various laws including the Constitution, the Trial on Indictment Act, the Poor Persons Defence Act, the Magistrates’ Court Act and the Advocates Act and Regulations relating to legal aid made thereunder.

3.1.1Constitution of the Republic of Uganda

The 1995 Constitution of Uganda clearly embodies human rights, freedoms, principles of rule of law, good governance and due process as enshrined in the major human rights treaties. Article 21 of the Constitution guarantees equality before the law to all citizens. The Constitution further articulates the principles upon which the Government of Uganda (GOU) is to construct the mechanism for governance and improved personal safety, security and access to justice.

The national objectives and directive principles of state policy as stated in the Constitution include: comprehensive commitments to guarantee and respect institutions which are charged by the state with the responsibility of protecting and promoting human rights, empowerment of marginalized and vulnerable groups and ensuring accountability among others.

The rights and freedom enshrined under Chapter Four of the Constitution to wit; Protection and Promotion of Fundamental Rights and Freedoms are to be respected, upheld and promoted by all organs and agencies of government and by all persons.[2] In addition, Chapter Four empowers Parliament to enact laws necessary to implement policies and programmes aimed at redressing social, economic or educational or other imbalance in society, and laws that provide for any matter acceptable and demonstrably justified in a free and democratic society.[3]

Despite the fact that these rights and freedoms are guaranteed under the Constitution of Uganda, most vulnerable and marginalized groups are prevented from enjoying them because they are often discriminated against and unable to access the formal justice system due to a number of barriers including high/prohibitive cost of legal and related services, illiteracy and ignorance of the law and the basic human rights, low confidence in the justice system, technicalities of processes, and psychological barriers created by gender inequality, cultural norms, religious beliefs and social-economic settings (poverty). According to the Poverty Eradication Action Plan (PEAP) 2004/5-2007/8, the proportion of people below the poverty line rose from 34% in 2000 to 38% in 2003. This means that due to poverty, very few Ugandans can afford the services of a private legal practitioner.

In recognition of this constraint, Article 28 (3) (e) of the Constitution of Uganda imposes an obligation on the state to provide legal representation at its expense toevery person charged with any offence which carries a sentence of death or imprisonment for life. In line with this Constitutional provision, the Government through the judiciary operates a state brief systemlater discussed in this paper as one of the models of legal aid service delivery.

3.1.2.The Trial on Indictment Act, Cap. 23

This Act provides for a person accused of an offence before the High Court to be defended by an advocate, at his or her own expense as of right.[4] However, because the majority of the cases tried in High Court are of a capital nature, and attract life imprisonment or the death penalty, the practice is that all accused persons appearing in the High Court must be defended by an advocate either of their choice at their own expense or by one assigned to them by the state at the expense of the state.[5]

The accused persons are informed by the courts at the time they are formally charged in court that they have the right to counsel. For those who can afford one, this gives them sufficient time to look for one. Court Registrars ensure that accused persons who cannot afford counsel expenses obtain such assistance at the expense of the state. But as mentioned earlier, such assistance is limited to cases in the High Court, Appeal Court and Supreme Court and cases that attract life imprisonment in Magistrates' Courts.

It should be noted that an accused person’s right to counsel extends through post-conviction stages of appeal, revision, and review of decisions.

3.1.3.The Poor Persons Defence Act, Cap 20

Under this Act, legal aid is provided where it appears for any reason that it is desirable in the interests of justice, that a prisoner should have legal aid in the preparation and conduct of his or her defence, at his or her trial and that the means of the prisoner are insufficient to enable him or her to obtain suchaid[6].

Upon committal of the prisoner for trial, or at any time after reading the summary of the case submitted at the committal proceedings, a certifying officer may certify that the prisoner ought to have the legal aid, and if an indictment is filed against the prisoner and it is possible to procure an advocate the prisoner is entitled to have an advocate assigned to him or her.

The remuneration of any advocate assigned is payable from the monies provided by Parliament and is determined by the trial judge. In determining the amount of remuneration the trial judge is guided by the complexity of the case and the duration of the trial proceedings.[7]

This Act and the Trial on Indictment Act are in the spirit of Article 28 (3) (e) of the Constitution so theyapply only to criminal proceedings and does not extend to cover other proceedings including civil and family cases. The provision of legal aid under this Act is dependent on the availability of the Advocate. In the event that the court is not able to procure one, the accused is not able to proceed with his or her case on the grounds that there is no advocate to represent him or her.

3.1.4.The Magistrates’ Court Act, Cap. 16

This Actprovides for any person accused of an offence before a Magistrates’ Court to be defended by an advocate as of right.[8] However, many persons appearing in these courts are poor and cannot afford counsel. The result is that the majority of persons appearing in Magistrates Courts’ end up defending themselves, except for those cases which attract life imprisonment where the state provides an advocate at its cost under the state brief system.

3.1.5.The Advocates Act, Cap. 267 as amended by Act. No. 27 of 2002 and its Regulations

One of the functions of the Uganda Law Council as provided under the Advocates Act as amended is to exercise general supervision and control over the provision of legal aid and advice to indigent persons. The mechanism of performing this function is provision of a regulatory framework within which legal aid service providers operate as well as a monitoring and evaluation framework to measure impact and enhance accountability through reporting.

To this end,the Law Council developed The Advocates (Legal Aid Services to Indigent Persons) Regulations, No. 12 of 2007 toprovide for rules governing the provision of legal aid including registration of legal aid service providers, eligibility for legal aid, and maintenance of quality of services and client care and supervision by the Uganda Law Council.

In 2002, the Advocates Act was amended to provide for mandatory pro bono legal services to indigent persons by all advocatesin Uganda. In order to put the above provision into effect, the Law Council developed The Advocates (Pro bono Services to Indigent Persons) Regulations No. 39 of 2009. The Regulations provide for the requirement of all advocates in Uganda to give pro bono services for at least 40 hours in a year or pay money in lieu thereof. It specifies the nature of pro bono services and the areaof law in relation to which professional services can be rendered. It empowers the Law Council to establish a pro bono scheme and sets up a Board of Trustee to manage the same. Where the board determines that an advocate has neither offered professional services for the required hours nor paid money in lieu thereof, the practising certificate for that advocate will not be renewed.

The amendment of the Advocates Act in 2002 also introduced a new provision to allow any person undergoing instructions for the acquisition of professional skill or experience for the purpose of enrollment to have a right of audience in court provided he/she appears with an advocate possessing a valid practicing certificate. The Advocates (Student Practice) Rules, 2004 was developed by the Law Council to put into effect this provision. Under these Regulations, Post Graduate Bar students are allowed, as part of their training, to provide legal aid by representingjuvenile clients in Magistrates’ Courts under guidance of a senior practising lawyer.

Despite the fact that these laws and regulations exist on paper to buttress Article 28 (3) of the Constitution, they have not been effectively implemented leaving a huge gap between the law and practice. This is because legal aid service provision requires substantial funding and the Government of Uganda as a key duty bearer has not committed any meaningful amount of funds to implement these laws. Matters are even worsened by the lack of legal aid policy and a national body to guide and coordinate legal aid provision.

Countries such as Canada, UK and South Africa to mention but a few have registered great success in providing legal aid to its poor because they have ring-fenced budget for legal aid provision that keep growing over the years.

3.2.The Operational Framework for Legal Aid

The operational framework for the provision of legal aid is currently found in three main structures namely; the Justice Law and Order Sector (JLOS) on the supply side, the Legal Aid Basket Fund (LABF) on the funding side and the Legal Aid Services Providers Network (LASPNET) on the demand side.

3.2.1.JLOS

JLOS is currently implementing its Second Strategic Investment Plan under which one of the Key Result Areas (KRA) for reform is enhancing access to justice for all especially the poor and the marginalized. Areas of intervention under this KRA include: enhancement of physical access to JLOS institutions and services, minimizing financial bottlenecks hampering access to justice, reduction of case backlog in the judiciary through use of alternative dispute resolution mechanisms (ADR) and innovative approaches, increasing access to justice through Local Council Courts, enhancing the quality of justice delivered hence increasing confidence in the justice system, and minimizing technicalities that hamper access to justice by among other things, increasing knowledge of rights and duties.