What does the phrase ‘legal aid’ mean to you?
To most people it conjures up lawyers representing people in court. To most people in Africa, legal ‘aid’ remains illusory and the promise an empty one when there are so few lawyers to go round and those there are are to be found in the capital, rather than in rural areas where most people still live.
The meaning was given a broader definition in 2004 at a conference on legal aid held in Lilongwe, Malawi, involving representatives from 21 African countries who looked at the matter from the point of the person in the village, asking not ‘what can the state provide?’ but rather: ‘what legal services do people need?’
The conference listened to legal anthropologists, law professors, practicing lawyers and paralegals and took soundings from the formal justice system and the informal. The definition they came to reads as follows:
‘Legal aid should be defined as broadly as possible to include legal advice, assistance, representation, education, and mechanisms for alternative dispute resolution; and to include a wide range of stakeholders, such as non-governmental organizations, community-based organizations, religious and non-religious charitable organizations, professional bodies and associations, and academic institutions.’ (Lilongwe 1)
The adoption of the Lilongwe Declaration and its plan of action by the African Commission on Human and People’s Rights (ACHPR) (2006) and UN (Ecosoc 2007/24) forms part of an international movement to recognise the role of paralegals as primary justice service providers. Inspiration is drawn from the health sector and the provision of primary health care through paramedics and nurses and it was noted that the justice ‘sector’ offers no such primary services.
Paralegals work as ‘barefoot lawyers’ in many countries in Africa providing a range of advisory services to ordinary people. Since 2000, they have moved into the criminal justice arena to offer advice and assistance on the front line of the criminal justice system – at the police, in prison and in court. The impact has been extraordinary: Remand prison populations have gone down where the paralegals are in evidence as they push the cases through the system and empower prisoners to represent themselves in the courts; at the police they divert young offenders from entering the justice system; and in court they provide advice and guidance to allcomers. Lawyers too have welcomed the development as paralegals do much of their donkey work (taking statements, tracing witnesses etc) and refer the serious and complex case to them.
Governments are increasingly recognising the role of paralegals in national legislation (Sierra Leone, Malawi and Uganda being cases in point) as providing an affordable way of providing meaningful legal services to the poor.
A Survey of Legal Aid in Africa researched by the Paralegal Advisory Service Institute last year and to be published later this year by the United Nations Office on Drugs and Crime (UNODC) found that:
- Coverage by the state legal aid system is incomplete at best
- Access to legal aid ‘at all stages’ of the criminal justice system is generally unavailable
- Budgetary allocation for legal aid is minimal
- Persons accused of crime cannot expect legal advice in mounting a defence or informing – a plea to a serious charge; or representation in cases attracting a prison sentence
- Lawyers are few in number and generally unavailable in rural areas
- Paralegals, or trained non-lawyers, are not provided in most countries in a systematic manner
- Community legal services are not available in every district or accessible by every person in need of such services
- Information on legal aid is not available to the general population
- Most governments do not have an over-arching legal aid ‘strategy’ to maximise the use of the resources available.
The Lilongwe Declaration speaks of the ‘societal benefits’ that these services can produce. These benefits include ‘elimination of unnecessary detention, speedy processing of cases, fair and impartial trials, and the reduction of prison populations.’ (Lilongwe 2). The work of paralegals in East and West Africa has born this out (namely in Malawi, Kenya, Uganda and Sierra Leone). In 2008, senior justice actors in Bangladesh visited Malawi to learn how these paralegals operate at first hand. They returned to their country and promptly established a pilot in three districts. There is symmetry in this as the previous year a team from Madaripur (in Bangladesh) came to Malawi to assist establish a village mediation programme, based on a mediation model developed by the Madaripur Legal Aid Association and refined over 30 years.
In common law and civil law jurisdictions and from Africa to Asia, paralegals are proving their worth. Last year, UNODC started the process of drafting new Principles and Guidelines on Legal Aid to broaden the definition (away from the narrow sense of ‘legal aid’ to one encompassing a broad range of legal services, drawing on the innovative work of the paralegals in Africa).
Recently the African Correctional Services Association (ACSA) met in Ghana to discuss overcrowding in the continent’s prisons and the work of paralegals in helping them to reduce the remand caseload. Africa is not alone in having congested prisons, but it is unique in seeking to approach the problem in a manner that places partnership with civil society organisations at the centre of the strategy.
On 23 September in Malawi, four organisations signed a Memorandum of Understanding to establish the Association of Paralegal Organisations (APO) – an international alliance of organisations to promote primary justice services to the poor. APO seeks to disseminate the good practices of other organisations to persuade governments that legal aid need not be illusory; that legal services are important to upholding the rule of law and inherent sense of justice in society’; and that these services – adopting the formula above (ie: 1 lawyer + 10 paralegals reaching 100 persons) – are affordable and attainable and can make a real difference in assisting people settle their disputes and/or navigate the justice system.
APO Focal points: West Africa (Timap for Justice, Sierra Leone – Simeon Koroma); North Africa and Middle East (Peoples’ Legal Aid Centre, Sudan – Rifaat Makkawi); Southern Africa (Paralegal Advisory Service Institute, Malawi – Clifford Msiska); Europe (The Governance and Justice Group, Portugal – Adam Stapleton.
Contributed by Adam Stapleton