Memoire Online - Access to justice and the international law standards

THE RIGHT TO LEGAL AID AND ACCESS TO JUSTICE: A RWANDAN PERSPECTIVE, PROSPECTS AND CHALLENGES

Research dissertation presented for the approval of Senate in fulfilment of part of the requirements for the Degree of Master?s of Laws in International Law. The other part of the requirements for this degree was completion of a programme of courses.

I do hereby declare that I have read and understood the regulations governing submission of a Master of Laws dissertation, including those relating to length and plagiarism, as contained in the rules of this university, and that this dissertation conforms to those regulations.

I, Jean de Dieu SIKULIBO, do hereby declare that this minor dissertation submitted for the degree of Master of Laws at the University of Cape Town has not previously been submitted by me at this or any other University, that it is my own work and that all sources and all referenced material in it have been acknowledged.

To my family for their constant care for me, support and motivation To my fiancée Yvonne for her unwavering love

Many people have helped me in this work, including those who have not been aware of their contribution. My discussions with some students at the University of Cape Town and sometimes their heated arguments helped me to appreciate the complexity and multidimensional nature of the subject.

Others have contributed in more tangible ways. Above all, I owe a debt of gratitude to Professor Danwood M. Chirwa for taking time from his busy schedule to supervise this thesis. His invaluable scholarly advice and willingness to share the vast knowledge he has in this area coupled with comprehensive critiques of the various drafts, meticulous attention to detail, painstaking editing and constant support were all invaluable to the completion of this thesis.

I am also greatly indebted to a number of colleagues and friends who were generous enough to read the last draft of my thesis and make helpful comments. In addition to Mr Ray Mungoshi, I should mention Ms Yetunde Adenike Aiyedun and Ms Kweka J. Gift. To all of them I would like to express my deep appreciation for their comments and criticisms, which led to some important revisions.

The financial assistance of the Government of Rwanda through the Student Financing Agency of Rwanda (SFAR) is also acknowledged.

Last but not the least, I have come to realise that family and friends provide the essential basis for coping effectively with diverse challenges of our times. Accordingly, I will never forget the friendship of those who were close to me during my stay in Cape Town, especially my loving family members. Also, my fiancée Yvonne has always been an unfailing source of strength.

ABSTRACT

Justice is a continuum that begins from the pronouncements and substance of the law to the different stages and forms of its enforcement. There are operational problems that are associated with these phenomena. Thus, the technical nature of the law and its procedure combine to compound the problem of accessing justice. This dissertation examines the concept of legal aid as an important factor in realising access to justice in Rwanda. This is a right embodied in international human rights instruments. A legal framework that does not afford citizens the legal aid services as regulated by these instruments is in effect occasioning them injustice. The relationship of an efficient and effective legal aid system to access to justice for the poor is therefore obvious.

This dissertation examines the Rwandan legal framework in as far as access to justice through free legal services is concerned by addressing its prospects and challenges. I argue that, apart from a wide-ranging legislation on legal aid, a high level of state involvement and the contribution of the organised legal profession are prerequisites for an effective legal aid system. I find that there are still a number of deficiencies in the Rwandan legal framework on legal aid. In addition, there is insufficient publicly-funded legal aid being channelled via the private legal profession.

Although some private actors are currently providing some legal aid to the population of Rwanda, most of their projects are funded by international donors and the donor approach has been one of supporting ad hoc, short term programs, rather than adopting a coherent approach aimed at establishing a permanent legal aid structure. This study also finds that, due to some of its disadvantages, chances of mounting a successful comprehensive legal aid scheme based on pro bono work are minimal. Rwanda, apart from setting up a separate governmental body responsible for providing the poor with free legal services, should work towards making Access to Justice Centers more accessible throughout the country to reach the most needy communities in rural areas.

TABLE OF CONTENTS DECLARATION DEDICATION ACKNOWLEDGEMENTS LIST OF ABREVIATIONS ABSTRACT TABLE OF CONTENTS CHAPTER ONE: INTRODUCTION			iiiⁱⁱⁱiv ^vivii 1
1.1 Theme of the study			1
1.2 Historical background to the study			3
1.3 Hypothesis of the study			4
1.4 Central objectives of the study			5
1.5 Rationale for the study			6
1.6 Literature review			6
1.7 Methodology			8
1.8 Structure of the study			8
CHAPTER TWO: LEGAL AID AND ACCESS	TO	JUSTICE	IN
INTERNATIONAL LAW			10
2.1 Introduction			10
2.2 The conceptual link between access to justice and legal aid			11
2.3 International law rules on legal aid and access to justice			12

2.3.1The implementation of international and regional instruments in the national
legal frameworks 13
2.3.2 Legal obligations on states to provide legal aid arising from international law

CHAPTER FOUR: A CRITICAL ANALYSIS OF THE RWANDAN LEGAL AID
SYSTEM IN A COMPARATIVE PERSPECTIVE 31

4.2 Principles for the design of legal aid systems and the correlation between the

organisation of legal aid and the entire legal system 32 4.2.1 State involvement in legal aid organisation and its funding 32 4.2.2 The contribution of the organized legal profession in access to justice through
legal aid	.33
4.2.3 Other important aspects of a legal aid system	34
4.3 Brief critical analysis of the South African legal aid system	35
4.3.1 Brief overview of the South African legal framework	35
4.3.1.2 Constitutional protection of the right to legal representation	36
4.3.1.3 Methods employed to facilitate access to legal aid in South Africa	37

4.4 Critical analysis of the Rwandan legal aid scheme?s models from a comparative
perspective 40

1.1 Theme of the study

Access to justice is essential for any justice system. Access should not depend on wealth, status, skin colour, gender or religion and conflict resolving mechanisms must be appropriate to their context¹ while remaining true to universal standards of human rights.² It is trite that in any domestic legal system, respect and protection of human rights cannot be fully guaranteed without the availability of effective judicial remedies. Access to justice is of fundamental importance to the injured individual and it is an essential component of the system of protection and enforcement of human rights. While access to justice, as a term of art, has acquired a variety of meanings it is also used to describe the legal aid for the needy, without which judicial remedies would be available only to those who are wealthy.³

Legal aid ensures vulnerable and disadvantaged people are not denied access to justice because of their inability to pay for it and it ensures that people accused of crime get a proper defence and a fair hearing. It is quite fair to say that legal aid to the needy is one of the cornerstones of a fair and decent society. It provides the framework within which citizens can enforce their rights and are held accountable for fulfilling their responsibilities.

It has been said that the one normative justification for legal aid flows out of the state?s
commitment to the rule of law.⁴ It should further be noted that it is the duty of the state to

¹ It should be noted that even though we may concede that international law leaves a wide margin of discretion to states in the administration of justice, nevertheless a general acceptance of such notion of justice can be evinced from the human rights instruments adopted since 1945 with the establishment of the United Nations.

² It is worth mentioning that the notion of access to justice can be found in Article 8 of the Universal Declaration of Human Rights (UDHR), GA Res 217A (III), UN Doc A/810 at 71 (1948); in Article 6.1 of the European Convention for the Protection of Human Rights and Fundamental Freedoms, ETS 5, 213 UNTS 222, entered into force September 3, 1953, as well as in Article 7.1 of the African Charter on Human and Peoples? Rights, adopted June 27, 1981, OAU Doc CAB/LEG/67/3 Rev 5, 21 ILM 58 (1982), entered into force October 21, 1986. It is worthwhile to note also that while the UDHR itself is not legally binding, some or all of the rights it mentions are considered to be binding in international customary law. See for example the case of Filártiga v. Norberto Peña-Irala (1980) ILM 966, United States of America Circuit Court of Appeals, 2^nd Circuit.

³ F Francioni Access to justice as a human right (2007) New York, Oxford University Press 1.

⁴ D Dyzehhaus Normative justifications for the provision of legal aid? in A blueprint for publicly funded legal services Vol. 2 of the Report of the Ontario Legal Aid Review (1997) 475.

ensure that every individual enjoys his or her right to justice⁵ and to fulfil this obligation in part through its legal aid system. There exists a range of international norms and standards which impose an obligation on the state to provide legal aid. These norms were articulated by the international community after 1945 with the establishment of the United Nations and the development of international human rights law.

It should be noted however that the expression of legal aid? like access to justice? has no generally agreed upon meaning. Thus, in its broadest sense, legal aid may be described as the provision of legal services, usually but not exclusively, by members of the bar at less than a regular market rate to the client, in order to ensure the accessibility of these legal services to those who otherwise could not afford them.⁶ In other words, legal aid in its common sense refers to the assistance provided by the society to its weaker members in their effort to protect their rights and liberties. It thus includes legal advice and representation by attorneys and advocates before courts or tribunals in both criminal and civil cases.⁷

There are two fundamental approaches in which legal aid is rendered.⁸ According to the first approach, it is the duty of the legal profession to provide professional services free of charge to those who cannot afford to pay for them.⁹ Lawyers should willingly carry cases for the needy in exchange for the monopoly they hold over the provision of professional legal aid services. The second approach is that lawyers should carry only part of the burden, and that the bulk of the load must be shouldered by the state.¹⁰ As far as the delivery of legal aid services by the state is concerned, the methods may vary: members of the private profession can provide legal aid services paid for by the state at a reduced scale, or the state can provide the services through salaried professionals.

⁵ V Hennie Legal aid in South Africa: Making justice reality? (2005) 49 Journal of African Law 54. See also N Abramowitz Legal aid in South Africa? (1960) 77 South African Law Journal 351.

7 Even though the International Covenant on Civil and Political Rights (ICCPR) is silent on the matter of legal aid in civil cases, it is useful to note that the European Court of Human Rights has extended the obligation of the state to provide legal aid in civil cases depending on the particular circumstances of the case. See ECHR in Airey v. Ireland (1979-80) 2 ECHR 305.

1.2 Historical background to the study

It is accepted that Rwanda is a developing country with limited income. Beginning in 1959, a series of violent and primarily ethnic-based discrimination against the Tutsi people in Rwanda ultimately lead to the horrific 1994 genocide in which up to one million Tutsis and moderate Hutus perished in less than four months; many more were raped, maimed, or abused. From 1959 to 1994, a group of jurists who undertook an international overview on legal aid classified Rwanda amongst the worst group of countries which provide negligible legal aid, and without a plan for free or subsidised legal advice or assistance.¹¹ This situation is easily understandable considering the fact that Rwanda had in 1975 only about 15 lawyers. Apart from the death of legal provisions on legal aid¹² Rwanda did not have a plan for legal aid in both civil and criminal proceedings.¹³

Even though some NGOs such as Haguruka¹⁴ have been giving legal aid to the needy, it remains nevertheless true that it is the Law No 3/97 of 19 March 1997 which introduced some reforms on legal aid in Rwanda.¹⁵ Also, beyond the prescribed international law to which Rwanda became involved by signing a range of conventions, it enshrines the right to legal aid in article 19 of its Constitution. This Article reflects verbatim the terms of the UDHR.¹⁶

It may be useful to point out that Rwanda originally based its legal system on Belgian
civil law but more recent reforms¹⁷ have created a hybrid system combining elements of
the common law (such as cross-examination) with traditional civil law practices such as

¹¹ F Zemans Perspectives on legal aid: An international survey London: Fr Pinter Ltd (1985) 6.

¹² It is worth mentioning the Article 380 of the former Code of Civil procedures which contained a provision that the indigent party could be completely or partially exempted from procedural costs. Also, Article 82 of the same Code established that a party may be represented or assisted in all courts. See the Rwandan Code of Civil Procedures of 1986.

¹⁴ Haguruka is an Association for the Defence of the Rights of the Woman and the Child in Rwanda that was founded on 16 July, 1991 to be the first NGO delivering legal aid in Rwanda.

¹⁵ It should be noted that Article 60 of the Law No 3/97 of 19 March 1997 poses the general principle the assistance to people whose incomes are weak? is ensured by the Office of Consultation and Defence (OCD) of the Bar of Rwanda. It is therefore charged with advising, consulting and defending the poor.

¹⁷ It is to be stressed that beginning in 2003, Rwanda has thoroughly transformed its justice system widespread reforms aimed at improving professionalism and judicial efficacy. These reforms have included such measures as minimum legal qualifications for judges, lawyers and senior registrars and greater use of single judge trials to increase efficiency, as well as many substantive legal provisions.

the participation of parties civiles?.¹⁸ Apart from the limited number of lawyers in Rwanda,¹⁹ one should add another problem that, as in many²⁰ civil law systems, lawyers are generally not permitted by legislation to be salaried employees.²¹

In order to ensure access to justice to the needy, it is necessary to define those people who make up the needy group and what is involved in giving them full access to justice through legal aid. Obviously in some countries, such as Rwanda, only the poor can be considered to be underprivileged. But in most countries, this concept cannot be restricted merely to poor people.²²

Physical barriers to access to legal aid services are the most noticeable and present the first barrier which must be overcome.²³ There are relatively easy to overcome because they are readily seen and identified and are capable of being eradicated. It should be noted that most lawyers in Rwanda have their offices in towns²⁴ and it is a physical obstacle for those who live in rural areas. Similarly, psychological barriers to access to legal services exist in Rwanda; chief among them is lack of information. With these caveats in mind, I must be stressed that a person who is unaware of his legal rights and has no knowledge of the services available to him is in no better position than he would be if there were no such rights and services.

1.3 Hypothesis of the study

An individual's recourse right of access to justice can often amount to no more than a
paper right due to a number of hindrances, mostly the lack of money. Thus, it is

¹⁸ Unlike the common law practice, a civil litigant is also allowed to be a party to a criminal trial, and claiming for redress, after the formulation of a claim for damages. And the process leading to criminal decision goes on along with claim for damages. It is worth noting that this is common in France and in virtually all purely civil law countries.

¹⁹ As of October 2009 the Rwanda Bar Association was composed of 450 lawyers. Apart from the Bar, there is also a Corps of Judicial Defenders which provides legal assistance to indigents.

²⁰ This is not the case for all civil law countries because some countries like South Africa which is the civil law system allow lawyers to receive salaries.

²¹Article 30 of the Law on the Bar No 3/97 of 19/3/1997 in Official Gazette No 8 of April 15, 1997.

²² Unlike to Rwanda, these include countries where they are racial minorities. See details Zemans, supra note 11, 5.

²⁴ The fact that practically most of lawyers in Rwanda live in Kigali (the Capital City) poses a particular obstacle in terms of geography and makes legal representation by lawyers in the provinces exceedingly expensive.

worthwhile to note that legal aid to the needy people is an important mechanisms facilitating people?s access to justice.²⁵ Legal aid must be seen within a wider content to access to justice?. Yet, there can be a variety of ways to accessing justice.²⁶ Providing this service to ordinary people is a challenge that all societies based on the rule of law face. In its own way it is almost as necessary as providing healthcare and education.

Even if there are legal provisions on legal aid in Rwanda, the legal aid is at its developmental phase. This makes it imperative to adopt some innovative approaches in various areas to address the problem of better access to justice by many poor people in Rwanda. Because legal aid is a constantly evolving area, the approaches outlined in this dissertation may serve as an impetus to law reform and in the broader area of access to justice in Rwanda.

1.4 Central objectives of the study

The aim of this thesis is to assess and critically analyse the availability of legal aid services in Rwanda. This thesis will also trace and analyse the development and efficacy of Rwandan legal aid mechanisms in guaranteeing access to justice and their conformity with international law norms and standards.

whether the Rwandan legal framework is compatible with international law norms and standards in a as far as access to justice trough legal aid is concerned.

whether legal aid delivery-model(s) put in place in Rwanda really facilitate such access to justice. This is done in light of broad range of possible delivery models that might be deployed by a legal aid system bearing in mind that the mechanical transplantation of models into a particular country context rarely meets with success.

²⁶ For example, in most countries, there are a number of important pieces of legislation on the administration of justice aiming to ensure access to justice to the people seeking it but still legal aid remains of vital role in this regard.

1.5 Rationale for the study

It is hoped that this thesis will be of value to a relatively large group within the legal profession in Rwanda. It may thus stimulate consideration of various potential solutions and serve as an impetus to further study and consideration. The main purpose of legal aid, as provided for in the Rwandan Law No 3/97 of 19/3/1997,²⁷ is to provide assistance to the weaker members of the Rwandan society in protecting their rights and liberties.

In the light of this, the provisions on legal aid in the Rwandan legal framework are hereinafter critically analysed in order to find out if they effectively deal with legal aid and therefore laid out schemes which facilitate full access to justice for the needy population so as to find out if the legal aid which gives the deprived people the possibility of being defended or to attack in justice have been definitively installed in the Rwandan legal system. Realistic recommendations for prospective law reforms aimed to increase the effectiveness of current efforts on legal aid would also be made.

1.6 Literature review

It is useful to note that while there is a growing corpus of literature on legal aid in Rwanda, there is scant in-depth analysis of the impact of models of facilitating access to justice in Rwanda. There is currently no literature which looks specifically at the state?s involvement and the contribution of the organised legal profession in the Rwandan legal aid system.²⁸ The bulk of scholarly on the Rwandan legal aid system tends to concentrate on how international law standards have been domesticated.²⁹

²⁸ See further details on these two elements as prerequisite to an effective legal aid system in E Blankenburg Comparative legal aid schemes in Europe?(1992) 11 Civil Justice Quarterly 106-119.

Leo Milonas has noted that, throughout the world, nations today face the unprecedented challenge of providing meaningful access to justice to all residents. ³⁰ Hannie van As, who analysed legal aid in South Africa, has stressed that equal access to the courts and to legal representation are the main components of access to justice.³¹ He has also argued that the onus is on states to make sure that their legal frameworks embody such key values.³²

In Rwanda, not much has been written on the state?s responsibility or obligation which flows from a number of international conventions and treaties to make sure that the population is not divided into citizens who have access to justice and others who do not have. However, the Danish Institute for Human Right?s recent report on the legal assistance available in Rwanda³³ has stressed that even if many private actors are currently providing some legal aid, most of their projects are funded by international donors and the donor approach has been one of supporting ad hoc, short term programs, rather than adopting a coherent approach aimed at establishing a permanent legal aid structure.³⁴ This report analysed legal aid in Rwanda with an emphasis on activities of the private actors providing legal aid and concluded that there are not many publicly funded initiatives on legal aid even though it is an obligation of the state.³⁵

Julia Bass, Bogart and Frederick Zemans³⁶ argue that state-funded legal aid services provided principally by lawyers continue to be the principal approach to access justice not only in developed countries but also in developing ones. They are of the view that no-state actors should not see themselves replacing states in their responsibility to provide access to justice through legal aid services.

This study hopes to contribute to the above academic writings with a focus on the Rwandan legal framework that seeks to address largely legal aid to the Rwandan needy.

1.7 Methodology

This research is a doctrinal-based study with no component of empirical study. Doctrinal study was conducted through a review of literature as well as an examination of relevant sources of law, both statutory and judicial, and an analysis of international law. It was also mandatory to consult several journals articles, books and reports of various international and local organizations working on legal laid for up-to-date information and activities in this field in Rwanda.

1.8 Structure of the study

This dissertation is divided into five chapters. This introductory Chapter defined the problem to be investigated and the justification for the study. It also has set out the methodology as well as the scope of the study, and the manner in which the thesis is developed.

Chapter II looks at the conceptual link between access to justice and legal aid. It also moves on to consider the extent to which international mechanisms deal with this practical matter and, in particular, considers international standards on legal aid and their development in the context of international law. It sets out the obligations on the state arising from a number of international instruments in relation to legal aid and discusses how these should be interpreted in the domestic legal context.

This provides the framework for the legal aid and assistance and Rwandan legal framework on practical measures giving effect to this framework in Rwanda. A study of some of the most advanced legal aid systems³⁷ points to a number of common elements, the most important of which are a high level of state involvement and the contribution of the organized legal profession. Some see these factors as prerequisites for a more or less effective system.³⁸ In light of this, the Chapter III analyses the Rwandan legal framework on legal aid as a significant aspect of access to justice.

³⁷ See details in H J Van As Legal representation as an element of access to justice (1999) unpublished LLD, Thesis completed at the University of Stellenbosch; Cited in Hennie, supra note 5, 65.

Chapter IV critically analyses the legal aid models in Rwanda drawing lessons from South Africa.

2.1 Introduction

This Chapter focuses on legal aid as a key factor in vindicating one?s right of access to justice and traces its development as a human right?. If indeed legal aid is now a right, what are its legal underpinnings and corresponding legal obligations in international law? Moreover, what can national mechanisms do to actually guarantee its enforcement? These questions will be interrogated in this Chapter.

International law is now increasingly recognising legal aid as an important tool in accessing justice. Evidence of this abounds in the various international and regional human rights instruments adopted since the end of World War II.³⁹ Nonetheless, it should be noted that neither the term legal aid? nor access to justice? is used as such in the language of most international human rights instruments.⁴⁰ In this connection, the place of legal aid as vital component in accessing justice can plainly be gleaned from the interpretation of these instruments by various courts.⁴¹

It is instructive to note from the onset that the UDHR dealt very broadly with the rights to fair trial and due process. This pattern is replicated in subsequent human rights instruments. For the purpose of this research, it is important to clarify the conceptual link between access to justice and legal aid before analysing the international human rights standards on legal aid. The Chapter then investigates how those international standards

³⁹ It should be noted that the notion of access to justice can be evinced from the human rights instruments adopted since the establishment of the United Nations. In particular, it can be found, among others, in UDHR, the European Convention on Human Rights, the American Convention on Human Rights, OAS Treaty Series No 36, 1144 UNTS 123, entered into force July 18, 1978, as well as in the African Charter on Human and Peoples? Rights.

⁴⁰ The UDHR (Article 8) speaks of «effective remedy», while Article 25 of the American Convention uses the terms «prompt recourse» and effective recourse. Also, Article 2 of the International Covenant on Civil and Political Rights (ICCPR), GA Res, 2200A (XXI), 21 UN, UN Doc A/6316 (1966), 999 UNTS 171, entered into force on 23 March, 1976 and ratified by Rwanda on the 6^th April 1975, uses different expressions in different provisions viz. effective remedy, the right to take proceedings before the court (Article 9. 4) and to a fair and public hearing (Article 14.1).

⁴¹ See for example the European Court on Human Rights (ECHR) in Airey v. Ireland, supra note 7. Also that the Human Rights Committee, which is the treaty monitoring body established by the ICCPR, has developed jurisprudence addressing the scope and form of legal aid (see details infra 2.3.2.1).

and norms are reflected in national laws. Finally, the Chapter examines the obligations which the international human rights instruments themselves create in relation to the provision of free legal aid at the domestic level.

2.2 The conceptual link between access to justice and legal aid

A central tenet of the rule of law is the principle of equality before the law for all citizens. Legal aid should be available for those who cannot afford the costs of justice in order to ensure that justice does not become a preserve for the rich. This underscores the importance of availing a robust legal aid system to the poor who constitute, in most African societies, the bulk of the population. Accordingly, the relationship between an efficient and effective legal aid system and access to justice for the poor is obvious. As Uzelac and Van Rhee rightly argue, in most sub-Saharan societies, people of the deepest economic weakness suffer also from the deepest legal vulnerability.⁴²

Whilst the term access to justice? is broader than legal aid?,⁴³ legal aid is viewed as a means of ensuring a justice system that is accessible and available to all.⁴⁴ Significantly, access to justice is primarily concerned with giving every citizen the opportunity to assert their rights. In practice, it is now globally acknowledged that multiplying the number of courts alone does not mechanically translate into fulfillment of people?s right to access justice.⁴⁵

In this connection, the ease with which citizens? access competent, independent and impartial courts of law indicates the presence of a healthy human rights system in any society. When the right of access to justice is not protected, all other related rights and freedoms are placed in jeopardy.⁴⁶ One of the most essential aspects of access to justice is the right to legal aid for the needy.⁴⁷

⁴² A Uzelac and C H Van Rhee Access to justice and the judiciary: Towards new European standards of affordability, quality and efficiency of civil adjudication (2009) Antwerp-Oxford-Portland 45.

⁴³ See details in Y Richard Access to criminal justice: Legal, lawyers and the defence of liberty (1998) Blackstone Press Limited 10.

Mere formal recognition of the principle that all men are equal guarantee equality before the court would not mean much if one party has a lawyer and the other does not. Effective access to justice is achieved only when no person is deterred by financial or any other barriers from asserting a right through legal means. While the ultimate realisation of this goal may be utopian, significant steps towards achieving this milestone can be taken by constructing a robust legal aid system that is accessible to all. Hence, the right to legal aid is fundamental to ensuring that there is effective access to justice in a community.

2.3 International law rules on legal aid and access to justice

A number of international and regional treaties require states to provide legal aid to the needy. These treaties include, among others, the ICCPR,⁴⁸ the European Convention on Human Rights and Fundamental Freedoms (ECHR),⁴⁹ the American Convention on human rights,⁵⁰ and the African Charter on Human and Peoples? Rights.⁵¹ In addition, a plethora of other instruments designed to provide guidance to states such as declarations, principles, rules, recommendations and guidelines bolster the international human rights edifice.⁵²

This dissertation does not attempt to assess the extent to which various states are in compliance with their international obligations with respect to the provision of legal aid. Rather, it assesses and critically analyses the availability of the legal aid services in the Rwandan legal framework. Accordingly, it lays emphasis on those international and African human rights instruments that are relevant to the Rwandan situation. However, some reference will also be made to other regional instruments.

⁵² It is worth stressing that while these instruments have been accepted by a number of states, they are not legally binding upon states but instead they are considered to have moral force. These are, among others, the United Nations Basic Principles on the role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, UN Doc A/CONF 144/28/Rev 1 at 118 (1990), the United Nations Body of Principles for the Protection of all Persons under Any form of Detention or Imprisonment, GA Res. 43/173, annex, 43 UN GAOR Supp No 49 at 298, UN Doc A/43/49 (1988), the United Nations Standard Minimum Rules for the Treatment of Prisoners, GA Res 40/33, annex, 40 UN GAOR Supp No 53 at 207, UN Doc A/40/53(1985) and the United Nations standard Minimum Rules for the Administration of Juvenile Justice GA Res 40/33, annex, 40 UN GAOR Supp No 53 at 207, UN Doc A/40/53 (1985).

2.3.1 The implementation of international and regional instruments in the national legal frameworks

In general, the application of international law in national law is determined either by the monist or dualist theory.⁵³ For the monist system, international law is directly applicable in the national legal system while in the dualist system international and national law are considered to be distinct legal orders. In dualist countries,⁵⁴ for international law to become part and parcel of national law, incorporation is necessary by a legislative act. In monist countries,⁵⁵ there is no need to incorporate the international treaty provisions into national law as the treaty becomes part of domestic law upon ratification. Monists view international and national law as part of a single legal order. Indeed, to them, international law is superior to national law.⁵⁶ It should be noted that the application of international customary law in domestic systems generally follows the logic of monism.⁵⁷

Article 190 of the Constitution of Rwanda has adopted the monist approach. The Constitution reads that:

Upon their publication in the official gazette, international treaties and agreements which have been conclusively adopted in accordance with the provisions of law shall be more binding than organic laws and ordinary laws except in the case of noncompliance by one of parties.⁵⁸

This provision shows that Rwanda has adopted the monist approach although it has
reserved the right to opt out of international agreements that centre on reciprocity. This is
notwithstanding the fact that, as decided in Barcelona Traction case, reciprocity does not

⁵³ See details in H J Steiner et al. (2000) International human rights in context: Law, politics, morals 2nd Edition Oxford University Press 987.

⁵⁴ This method of legislative act to incorporate international law into domestic legal framework is regularly applied in the United Kingdom, Commonwealth countries, and most Scandinavian jurisdictions. See details in F Bangamwabo The implementation of international and regional human rights instruments in the Namibian legal framework (2004) Windhoek 165-167.

⁵⁵ It should be noted that this is the approach of a number of countries viz. France, Holland, Switzerland, the USA, virtually all Latin American countries, and some francophone African countries.

56 See M Myres The impact of international law upon national law: A policy-oriented perspective? (1959) South Dakota Law Review 4, 25:27-31.

⁵⁷ For some classical contributions on the subject, see among others H Triepel Droit international et droit interne (1920) Oxford University Press. See also Seidl-Hohenveldern Transformation or adoption of international law into municipal law (1963) 12 International & Comparative Law Quarterly 88.

⁵⁸ See Article 190 of the Constitution of the Republic of Rwanda adopted on 4 July, 2003.

apply to human rights treaties which seek to protect citizens, and where the obligations imposed by them are erga omnes,⁵⁹ rather than those owed to particular states.⁶⁰

As a point of departure, I will argue that the relationship between international law and national law has important practical implications in either monist or dualist systems. This nexus determines the extent to which individuals can rely on international law for the vindication of their rights within their national legal system and has implications for the effectiveness of international law.

2.3.2 Legal obligations on states to provide legal aid arising from international law

Having generally discussed the meaning of legal aid, its link to the broader term of access to justice and the application of international law in Rwanda,⁶¹ the research will now examine the legal basis and scope of the right to legal aid in international law.

As noted earlier the terms access to justice or legal aid are not used as such in most international human rights instruments. Given the terminological variance, it is not always clear whether reference is made to the right to bring a claim before a competent court, or rather to the right to have a measure or remedy provided in connection with the injury suffered by the claimant. The latter goes further than the mere right of access to justice and implies the right to obtain reparation as a consequence of certain harm suffered in connection with the violation of a right or legally protected interest.⁶² In this connection, this Chapter examines in some detail international standards flowing from various international legal instruments. It focuses largely on the ICCPR and other international instruments which guarantee individual?s right to access to justice through state-funded legal aid.

⁵⁹ Erga omnes is frequently used in legal terminology describing obligations or rights toward all. An erga omnes obligation exists because of the universal and undeniable interest in the perpetuation of critical rights (and the prevention of their breach). See details in Belgium v. Spain (well-known as Barcelona Traction, Light and Power Co Case), Judgment of 5 February 1970, ICJ Reports 1970, 3.

2.3.2.1 The ICCPR's provisions on legal aid

The ICCPR is the main international instrument which protects the civil and political rights of every one. This treaty, as it will be shown below, sets out the precise obligations on states to provide free legal aid. It is worth noting that the Covenant commits each state party to respecting and ensuring to all individuals within the territory and subject to its jurisdiction the rights recognised in the present Covenant.⁶³

Chiefly, Article 14.3(d) of the ICCPR requires states to make available, without cost, legal representation where a criminal defendant has insufficient means to pay and the interests of justice require legal representation. It reads as follows:

In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: (d) to be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it.⁶⁴

An analytical look at this provision shows that legal representation is set out among the minimum guarantees to which everyone is entitled, in full equality, in the determination of any criminal charge. However, there are limitations on the availability of legal aid as provided for under this Article. States are required to provide legal aid only where the interests of justice so require and if the beneficiary does not have sufficient means to pay for it. The other limitation to the right to counsel when it is provided by the state is that there is no scope for choice of counsel by the individual. However, in Antonio Viana Acosta v. Uruguay, the Human Rights Committee (HRC) which is the treaty monitoring body established by the ICCPR,⁶⁵ held that although free choice of lawyer may be subject

65 Optional Protocol to the ICCPR, GA Res 2200A (XXI), 21 UN GAOR Supp No 16 at 59, UN Doc A/6316 (1966), 999 UNTS 302, entered into force March 23, 1976. It is useful to note that the Human rights Committee is entitled to hear individual petitions that challenge a state?s compliance under the provisions of the ICCPR. The decisions rendered by the Committee, while not binding upon state parties to the Optional Protocol, are considered to have persuasive force.

to certain limitations when free legal assistance is granted by the state, the wishes of the accused have to be taken into account.⁶⁶

Also, in Reid v. Jamaica and OF v. Norway, the HRC provided the scope to certain elements of Article 14(3) of the ICCPR⁶⁷. In elaborating on the meaning of when the «interests of justice» would require free legal representation, the Committee considered, in OF v. Norway case, the severity of the charge and the complexity of the case in making the determination.⁶⁸ As a result, in a case where the accused is charged with a minor criminal offence which would have likely resulted in a fine, the Committee found that the state is not required to provide free legal assistance.⁶⁹

It is worth noting that the ICCPR does not specifically address the question of how legal aid must be provided. However, the HRC has also stated that counsel should receive adequate remuneration for providing legal assistance under a state-funded legal aid plan.⁷⁰ Similarly, it has affirmed that legal assistance must be assigned to the accused if he does not have the means to pay for it as provided for under the ICCPR,⁷¹ and that legal assistance must be effective.⁷² Again, the HRC has held that accused persons have a right to legal advice prior to trial requiring the state to appoint legal counsel during the pre-trial period.⁷³

It is pertinent to note that under the ICCPR the right to legal aid is only specified in the context of the criminal justice system. However, owing to the fact that the ICCPR asserts the right to have legal assistance in any case where the interests of justice so require,⁷⁴ it is argued that the state is required to assign? legal representation even for civil matters in cases of indigence. Moreover, in all in all decisions regarding legal aid, a state is

66 Antonio Viana Acosta v. Uruguay, Communication No 110/1981 (29 March 1984), UN Doc CCPR/C/OP/2 at 148 (1990).

⁶⁷ See Reid v. Jamaica, Communication No 250/1987 (20 July 1990) and OF v. Norway, Communication

⁷¹ See Wright and Harvey v. Jamaica, Communication No 459/1991, 27 October 1995.

expected to take into account the competence of counsel and the complexity of the matter.

As regards civil legal aid, some tangential support may be gained from the jurisprudence of the European Human Rights Court (ECHR) which has contributed a lot on this matter. The ECRH in Airey v. Ireland held that legal aid in civil cases should be considered as an aspect of a fair trial.⁷⁵ In that case, the ECHR held that the right of access to the courts guaranteed by a number of international instruments oblige the state in certain circumstances to provide impecunious litigants with the assistance of a lawyer in civil matters.

In short, the standards set out in the ICCPR oblige states parties to make justice accessible to all indigent people through legal aid. However, the decision to grant legal aid in a given case must be based on the merits of the case in line with the objects and purposes of the ICCPR. Whereas the ICCPR is not explicit on the provision of legal aid in civil matters, this treaty can be nevertheless interpreted to require that in any case where the interests of justice so require, the state should provide legal aid in such cases.

2.3.2.2 African instruments

The African Charter was adopted nearly three decades ago.⁷⁶ It requires each state party to take legislative or other measures to give effect to the rights it guarantees.⁷⁷ It contains a provision regarding fair trial in Article 7 (c), which includes the right to defence by a counsel of one?s own choice. Whilst stressing that every individual shall have the right to have his cause heard, it provides that this comprises:

⁷⁵ See Airey v. Ireland, supra note 7. See also the same line of argument in Morael v. France, Communication No 207/1986 issued on 28 July 1989. The European Human Rights Commission held that a very important condition for the observance of ICCPR Article l4's fair hearing requirement was respect for the principle of equality of arms. While the EHRC found there to be no violation in the Morael v. France, and did not have to deal with any claim concerned with the provision of legal aid, its holding in a civil setting that equality of arms must be observed provides some hope that legal aid will be seen as appropriate in civil cases. This should be even more so where the opposing party is the state itself.

⁷⁶ On 27 June 1981, at the 18^th Conference of Heads of States and Governments of the Organization of African Unity (OAU) replaced by the African Union (AU) on July 9, 2002.

An analytical look at this provision shows that free legal aid is not explicitly provided for in the Charter. However, the right to defence can be interpreted to mean that the state has duty to provide representation by counsel if the person cannot afford it. In Civil Liberties Organization v. Nigeria, the African Commission stated that the right to defence should be viewed in conjunction with the duty of states under Article 26 to guarantee the independence of the courts.⁷⁹ In 1999 the African Commission established a Working Group in 1999 to prepare general principles and guidelines on the right to a fair trial and legal assistance under the Charter.⁸⁰ These principles and guidelines recognise the right to legal aid and legal assistance in both criminal and civil cases.⁸¹

In Avocats Sans Frontières (on behalf of Gaëtan Bwampamy) v. Burundi, the African Commission noted that:

the right to fair trial involves fulfilment of certain objective criteria, including the

right to equal treatment, the right to defence by a lawyer, especially where this is called for by the interests of justice, as well as the obligation on the part of courts and tribunals to conform to international standards in order to guarantee a fair trial to all.⁸²

⁷⁹ See Civil Liberties Organization v. Nigeria, ACHPR Communication No 129/94 (1995). See also Media Rights Agenda v. Nigeria, ACHPR Communication No 224/98 (2000).

⁸⁰ Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, A (2), Doc/ OS (XXX) 247 (2001).

82 Avocats Sans Frontières (on behalf of Bwampamye) v. Burundi, ACHPR Communication No 231/99 (2000).

Indeed in this case, the African Commission stressed that the right to legal assistance is a fundamental element of the right to a fair trial.⁸³ Also, the African Commission made it clear that the onus is on the state to provide legal aid where the interests of justice so require without making any distinction between civil or criminal matters. Similarly, in Commission Nationale des Droits de l'Homme et des Libertés v. Chad, the African Commission reaffirmed the importance of the right to legal aid and legal assistance in both criminal and civil cases.⁸⁴ As a result, it is submitted that where the interests of justice so require, an accused or a party in a civil case has a right to have free legal assistance without payment if s/he does not have sufficient means.

In similar fashion, the African Charter on the Rights and Welfare of the Child⁸⁵ provides that a child has the right to special treatment in penal cases. Children in trouble with the law can be afforded legal and other appropriate assistance in the preparation and presentation of his defence.⁸⁶ Thus, states are required to provide to children with an effective defence or representation. Children have the right to choose their legal representative at all stages of their cases. Also, the Protocol to the African Charter on Human and Peoples? Rights on the Rights of Women in Africa⁸⁷, obliges states parties to give women access to legal services, but the duty on the state is limited to ensuring «support to local, national, regional and continental initiatives directed at providing women with access to legal services, including legal aid??.⁸⁸

84 Commission Nationale des Droits de l'Homme et des Libertes v. Chad, ACHPR Communication No 74/92 (1995).

⁸⁵ African Charter on the Rights and Welfare of the Child, OAU Doc. CAB/LEG/24.9/49 (1990), entered into force November 29, 1999. It was ratified by Rwanda on 11 May 2001.

⁸⁷ On 26 October 2005, the Protocol to the African Charter on Human and Peoples? Rights on the Rights of Women in Africa received its 15^th ratification, meaning the Protocol entered into force on 25 November 2005. Rwanda is amongst countries which ratified it on that date.

⁸⁸ See Article 25(a) of Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, adopted by the 2^nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (September 13, 2000); reprinted in African Human Rights Law Journal 40, entered into force November 25, 2005.

2.4 Conclusion

Without being exhaustive, this Chapter has analysed some of the essential international standards on legal aid in international law. Emphasis was placed on instruments relevant to the African continent. These comprise provisions that oblige the state to provide legal aid to ensure access to justice for all. It should be emphasised nonetheless that specific provisions on legal aid in most international and regional instruments, including the ICCPR, place more weight on matters of criminal proceedings, and not in civil proceedings.⁸⁹

However, due to the fact that the ICCPR asserts the right to have legal assistance in any case where the interests of justice so require, it has been argued that states are required to grant? legal aid even in civil matters in appropriate cases. Both the HRC and the African Commission have that legal aid forms part of the right to a fair trial and that it should apply even in civil proceedings.

Rwanda is party to almost all these international and African instruments discussed above. As a result non one should be prevented by economic obstacles from pursuing or defending his right before any court, be it criminal, civil, commercial, administrative, or social in Rwanda. To this end, every one should have a right to legal aid to ward off the danger of condoning injustice.

In the next Chapter, the thesis will focus on the Rwandan legal framework. The aim is to
find out if this framework effectively provides for legal aid access to justice by the needy.

89 See details in E Skinnider The responsibility of States to provide legal aid (2002) The International Centre for Criminal Law Reform and Criminal Justice Policy Canada 263.

3.1 Introduction

As discussed in the second Chapter, the duty to offer legal aid flows from a variety of international treaties. It is thus the responsibility of states to provide this form of aid to the needy. This Chapter will examine the availability of legal aid mechanisms in the Rwandan legal framework, and then critically assesses legal aid providers in the country. It should be noted, however, that a critical analysis of the legal aid models applied in Rwanda in this respect will be discussed in depth in Chapter IV.

Before embarking on the task at hand, I will briefly trace the historical evolution of the Rwandan legislature to foreground the Chapter. Invariably, this brief is rooted in the period before the current Constitution was adopted .⁹⁰ The aim here is to demonstrate that legal aid for the indigent was not a priority for the Rwandan legislature before the constitutional reforms. From there, I will focus on the strides that Rwanda has taken towards addressing this issue and expose which areas still need strengthening.

3.2 Brief historical background

Government involvement in the provision of legal aid in Rwanda is a relatively new phenomenon. This development happened primarily after the 1994 Tutsi genocide and the concomitant interest in human rights this whipped up in Rwanda.

A study carried out in 1979 in Rwanda by a group of jurists found that Rwanda was among a group of countries where legal aid was not prioritised.⁹¹ This was also the case in most of the African countries surveyed. A contributing factor to this situation was the factor that the concerned countries had very few trained trained lawyers. For example, in

⁹⁰ The current Constitution of the Republic of Rwanda has been adopted via referendum on June 4, 2003.

1975, Rwanda had only 15 lawyers working in private practice for a population of some 4.5 million (i.e. a ration of 1-300,000).⁹²

Before 1996, the right to legal aid and advice was only contained in the then Code of Civil Procedures.⁹³ Article 380, provides that an indigent party can be completely or partially exempted from procedural costs. The right to legal aid is reflected in Article 82 which provides that a party may be represented or assisted in all courts by an agent. Nonetheless, these provisions were not fully implemented. Significant changes introduced only after the 1994 genocide when legal aid parlance found its way into the current Constitution and subsequent enabling legislation.

The first attempt to establish organised legal aid in Rwanda was the law No 3/97 of 19 March 1997 which created the Bar of Rwanda. Since then, Rwanda has introduced the right to a fair trial in a number of statutes.⁹⁴ The Law No 3/97 was the boldest statement of intention by the Rwandan government to provide free legal services to the needy.⁹⁵ As said above, mere physical access to courts alone is inadequate: litigants need to be heard as well. Below, this Chapter explores legal aid in the Rwandan system.

3.3 Rwanda's legal framework on legal aid

Rwanda is a democracy founded on the rule of law. This makes it incumbent upon the state to avail free legal aid to its citizens.⁹⁶ The Rwandan Constitution provides, albeit very briefly, for the right to a public and fair hearing with all the necessary guarantees of defence. The adoption of the Constitution⁹⁷ heralded a new era not only for Rwanda as a country but also for the whole of its population. Among others, the Constitution protects

⁹⁴ It is to be noted that the preamble of the Constitution in its Article 9 restate the Rwandan commitment to the principles of human rights enshrined in the UN Charter, the International Convention on Genocide, the UDHR, the International Convention on Elimination of All Forms of Discrimination, the ICCPR, the ICESCR, the International Convention on the Elimination of all forms of Discrimination against Women, the African Charter on Human and Peoples? Rights and the Convention on the Rights of the Child.

⁹⁶ As well pointed out above, the first attempt on legal aid in Rwanda was the law No 3/97 of 19 March 1997 Establishing the Bar of Rwanda.

the right to a fair hearing,⁹⁸ the right to equality before the law,⁹⁹ the right of a detained person to be informed of the nature and cause of charges proffered against him/her¹⁰⁰ and the right to a defence. ¹⁰¹ These rights apply at all levels of proceedings before administrative, judicial and all other decision making organs.¹⁰²

It should be noted that a number of elements in the Constitution attempt to bolster access to a fair hearing in the form of equal access to the courts and the right to a defence; these precepts are seen as mandatory for justice to prevail.¹⁰³ Additionally, the Constitution seeks to ensure that nobody is denied the right to appear before a judge to have their case heard.¹⁰⁴ It is submitted nonetheless that these constitutional provisions can amount to no more than a paper tiger due to a number of hindrances: chief among these being lack of the financial means to pay for legal services.¹⁰⁵ It should further be noted that illiteracy presents another hurdle to accessing justice in most developing countries including Rwanda. A huge number of Rwandans are illiterate and live on the breadline.¹⁰⁶ This prevents them from vigorously affirming their rights and underscores the need for legal aid as a fundamental right to be enshrined in the country?s Constitution.

The Constitution guarantees public and fair hearings; one of its major flaws lies in its failure to mention the right to a state-provided legal representation.¹⁰⁷ In stark contrast, this right is contained in the South African Constitution.¹⁰⁸

105 For instance legal representation and/or legal aid since most of the Rwandan population are not well positioned enough to be kept well informed of their rights.

106 In 2005 the country Section 1 s PPP adjusted GDP per capita in current international $ was only 36 percent of the SSA average (calculation based on data from the World Bank 2007b). This clearly shows that even though the government of Rwanda has set out ambitious development goals, one of the most central being for the country to reach middle income status and to halve poverty by 2020, still, the country is poor, even by African standards. See further details in A Bigsten, A Isaksson Growth and Poverty in Rwanda: Evaluating the EDPRS 2008-2012(2008).

107 This is a right provided for in many other countries? constitutions. See for example in sub Saharan Africa countries S. 35(2) (c) of the Constitution of the Republic of South Africa, 108 of 1996. See also Article 42. 2 f (v) of the Constitution of Malawi, Article 28 (3) (e) of the Constitution of Uganda and Article 18 (2) (d) of the Constitution of Zambia, S. 35(2) of the Constitution of the Federal Republic of Nigeria No 24 of 1999 (A 892).

3.3.1 Free legal aid under Rwandan laws

Since 2003 Rwanda has been overhauling its justice system with multiple widespread reforms targeting legal professionals and the judicial. While strengthening the human resources in the justice sector is critical to promoting access to justice, these efforts cannot be optimised if the population is unaware of its rights, or unable to access justice institutions due to physical, financial or intangible barriers.¹⁰⁹

Initial and crucial efforts to establish an organised legal aid system in Rwanda were manifested in the Law No 3/97 of 1997 which created the Bar of Rwanda. These efforts were stepped up with legal reforms in 2003/2004.¹¹⁰ These changes embodied important and pioneering provisions on legal aid.¹¹¹ Article 60 of the Law No 3/97 of 1997 poses the general principle upon which the assistance to people whose incomes are meagre is ensured by the Office of Consultation and Defence (OCD) of the Bar of Rwanda.¹¹² This office¹¹³ is charged with advising, consulting and defending the poor. A Presidential Decree establishing the legal aid fund prepared first in 1998 and renewed in 2003 is under consideration.

3.3.2 Legal aid in terms of the Law No 3/97 of 19/3/1997 creating the Bar of Rwanda

The Law No 3/97 of 19/3/1997 provides that «the Kigali Bar Association provides legal assistance to people whose incomes are meagre by establishing a consultancy and advocacy office in the manner it determines».¹¹⁴

Also, according to the Articles 60-63 of the Law No 3/97, interns and lawyers must be
paid for their services from a fund provided by the state and various contributions? and
managed by lawyers themselves. Currently, however, this fund is supported by

112 See supra note 15. It should be added that the Bar Association in Rwanda is known as the Kigali Bar Association.

113 It is worth reminding that the OCD became fully operational at the end of 2000.

international donors. ¹¹⁵ Whereas that Law No 3/97 of 1997 creating the Office of Consultation and Defence (hereinafter OCD)¹¹⁶ provides in its Articles 61 to 63 that interns and lawyers will be paid for the assistance they render, it is on the basis of foreign funds that the lawyers are paid. Thus, the OCD has been supported for several years by foreign donors, especially the Belgian NGO Lawyers without Borders Mission in Rwanda.¹¹⁷ This calls for a speedy conclusion and adoption of the Presidential Decree to establish the legal aid fund.

The Rwandan legal aid system is shaped by Civil Law origins. As a result, Rwanda, as in many other civil law systems,¹¹⁸ lawyers are generally not permitted by the legislation on the legal profession to be salaried employees,¹¹⁹ a stark contrast to common law systems. It should be noted that the Bill instituting the umbrella association for practicing lawyers is currently in Parliament.¹²⁰ The Bill seeks to reform the legal profession and allow lawyers of civil society, state advocates, and military advocates to register with the Bar Association.¹²¹

In principle the state is responsible for providing free legal services to the poor.¹²² In light of this, the Law No 3/97 provides for a Legal Aid Fund, to finance legal representation at the courts for indigents.¹²³ This money must come from state coffers.¹²⁴ A draft proposal establishing the relevant organs responsible for the fund and the procedure for its use in this regard was prepared in 2003. The draft proposal however is weakened by its

116 It is to be noted that the OCD became fully operational at the end of 2000 and it designates defenders to represent defendants and victims on the basis of legal aid.

117 It is useful to note that the present writer has also been working for Lawyers Without Borders in its Access to Justice Project (2007). It is this service which largely supports the OCD by paying Lawyers for them to defend in justice a number of vulnerable people in Rwanda.

118 This is not the case for all civil law countries because some countries like South Africa which is the civil law system allows lawyers to receive salaries.

¹¹⁹Article 30 of the Law on the Bar No 3/97 of 19/3/1997 in Official Gazette No 8 of April 15, 1997.

122 This is in accordance with the African Commission on Human and People?s Rights? Resolution on the Right to a Fair Trial and Legal Assistance in Africa, 26^th Ordinary Session of the African Commission on Human and People?s Rights, 1-15 November 1999, Kigali, Rwanda, Doc/OS (XXVI) INF.19. Cited in DIHR?s report, supra note 29, 17.

exclusion of one vital part of the legal profession. Judicial defenders are sidelined in favour of the Bar which will be solely responsible to manage the legal aid system.¹²⁵

The Law No 3/97 which gives only members of the Bar Association the right to represent people in court.¹²⁶ Exceptions, in some circumstances,¹²⁷ are made for judicial defenders to represent people in court. Given the fact that the number of lawyers is small in Rwanda,¹²⁸ this impedes rapid of implementation of a legal aid framework. In other words, the tiny group of lawyers in Rwanda¹²⁹, the vast group of needy people who need legal aid services¹³⁰ and those prerogatives¹³¹ given to lawyers make the legal aid a very tough challenge in Rwanda.

Yet, with the exception of children,¹³² there is no explicit right or obligation to legal representation, at state expense, in the Rwandan legal framework. However, as I argue throughout this research, one can interpret the right to a fair public hearing? as implying a right to legal representation at state expense if substantial injustice would otherwise result. There are compelling reasons in so arguing since the Constitution provides that necessary guarantees for defence have to be made available.¹³³ The fact that Article 19 of the Constitution follows the formulation in those international standards on legal aid convinces the writer to firmly argue that the term all necessary guarantees? must therefore include, as a minimum, what international law stipulates.¹³⁴

125 It worth noting that according to the Law of the Bar, the Bar law stipulates that the legal profession is exercised by two institutions: The Corps of Judicial Defenders and the Bar. See details Article 26 of the Law on the Bar No 3/97 of 19/3/1997.

127 Judicial defenders are allowed to represent people before courts other than High Court and Supreme Court.

128 Today October 2009 the Rwanda Bar is composed of 450 lawyers. Further details see supra note 19.

132 See Article 21 of the Law No 27/2001 on the rights and protection of children against violence. See also Article 185 of the Law No 13/2004 of 17/5/2004 on the code of criminal procedure as Amended and completed by the Law No 20/2006 of 22/04/2006, Official Journal Special No 27 May 2006.

134 It is fair to say that Rwanda?s formal human rights commitment is high, and the country has ratified nearly all of the International Conventions as well as the regional instruments.

3.3.3 Provisions of legal aid by non-state actors in Rwanda

Several associations, national and international institutions provide legal counsel and assistance to the needy community.¹³⁵ In Rwanda, these actors have found themselves replacing, rather than complementing, the services that traditionally ought to be provided by the state.¹³⁶ Virtually all the NGOs in Rwanda operate alone and are highly dependent on foreign funding. Some of them pay for a lawyer. They make up what is called the legal aid forum which is the Network of Legal Aid Delivers in Rwanda.¹³⁷ These include, among others, Association Rwandaise pour la Défense des Droits de l'Homme (ARDHO),¹³⁸ Collectif des Ligues et Associations de Défense de Droits de l'Homme (CLADHO),¹³⁹ Ligue Rwandaise pour la Promotion et la Défense de Droits de l'Homme (LIPRODHOR),¹⁴⁰ Lawyers Without Borders,¹⁴¹ Haguruka,¹⁴² Norwegian People?s Aid (NPA),¹⁴³ the Youth Association for Human Rights Promotion and Development (AJPRODHO -JIJUKIRWA),¹⁴⁴ and University-based Legal Aid Clinics.¹⁴⁵

It is useful to note that the main thematic areas covered by these NGOs are genocide related criminal cases, labour related cases and cases related to the rights of women and children.¹⁴⁶ They give legal advice and information to people who present themselves to their offices in Kigali. When necessary, they make requests, meet with the authorities,

¹³⁵ See J Dugard Courts and the poor in South Africa: A critique of Systemic judicial failures to advance transformative justice (2008) CALS University of Witwatersrand 221.

¹³⁶ It should be noted that, according to the wording of the ICCPR and not very much like the Rwandan practice, the onus is on the state to ensure that every individual enjoys his or her rights to justice and attempts to do so through legal aid. See Article 14(3) of the ICCPR. See also Hennie, supra note 5, 54 and Abramowitz, supra note 5.

¹³⁷ The Legal Aid Forum is a membership based structure encompassing national and international NGOs, international organisations, professional bodies, universities and faith based initiatives that provide legal aid services to the indigent Rwandan population or particular vulnerable groups (or that provide support to legal aid service providers in Rwanda). It is governed by a Charter drafted and adopted by the members in October 2006. See details at http://international.lawsociety.org.uk/node/2732, accessed on 22 July 2009.

¹³⁸ The Rwandan Association for the Defense of Human Rights (ARDHO) was formed on September 1991.

139 Rwandan Collective of Leagues and Associations for the Defense of Human Rights (CLADHO) was formed in March 1992.

¹⁴⁰ Rwandan League for the Promotion and Defense of Human Rights (LIPRODHOR) was formed in 1991.

¹⁴¹ This was established in Rwanda late 1996 following the 1994 Tutsi genocide.

¹⁴² This is the first ever legal aid provider in Rwanda. See further details supra note 14.

¹⁴³ NPA began its work in Rwanda after the Genocide in 1994 and is a rights-based approach programme working in partnership with local organisations.

¹⁴⁴ AJPRODHO-JIJUKIRWA was founded in 1996 by Students at the National University of Rwanda as a Students Association for Human Rights Promotion.

¹⁴⁵ Legal aid Clinics are operating in National University of Rwanda and Kigali Independent University.

and visit prisons. Sometimes their staff write the conclusions for court proceedings.¹⁴⁷ They use paralegals who are people in the community trained by their respective organisations so that they can assist the local population and help raise awareness about human rights in general.

It should further be noted that virtually all these legal aid providers have almost the same goal, to promote equitable access to justice for disadvantaged and vulnerable groups in Rwanda through the provision of accessible and quality legal aid services.

The Kigali Bar Association is the most prominent of the non-state actors involved in providing legal aid in the country. Its sterling efforts have nonetheless failed to cure deficiencies that plague the Rwandan legal aid framework. Only concerted efforts that include high levels of state involvement and the contribution of the organized legal profession can cure those deficiencies.¹⁴⁸

3.4 Justice Centers in Rwanda

The Rwandan government endeavours to fulfil its constitutional obligations of fulfilling the rights to fair trial and of access to justice through recently established Access to Justice Centers. By October 2009, there are five Access to Justice Centers in Rwanda, at least one in every province. These Centers work to promote policies that empower those who are vulnerable, whether the problem is eviction; government bureaucracy (including, in some instances, the courts themselves); employers who deny wages; abusive spouses in custody disputes or in domestic violence matters; or other problems that people seek to resolve disputes according to the law.

Apart from sensitising the population and promoting the judicial system, the Access to
Justice Centers are responsible for advising and orienting every citizen to the right
judicial instances. The Access Justice Centers operate as coordinators for all legal

147 It is useful to note that the conclusions are compulsory to any person launching a civil action in court. See Article 13 of the Law No 18/2004 of 20/6/2004 on the Code of Civil, Commercial, Social and Administrative Procedures.

148 See details in J Van As Legal representation as an element of access to justice (1999) unpublished LLD Thesis completed at the University of Stellenbosch; Cited in Hennie, supra note 5, 65.

initiatives in the respective areas. ¹⁴⁹ They have the responsibility to identify and coordinate all legal assistance activities in their area. In other words, they are facilitators of legal assistance. The overall objective of the Access to Justice Centers is to improve access to justice for the surrounding population, especially the poor and vulnerable.

Apart from sensitizing the population on their access to justice, the services of these centers entail consultation and attendance at both criminal and civil matters. It is submitted that the Access to Justice Centers policy is a strategic one with the ultimate aim of helping to ensure access to justice to Rwandan people. Indeed, it is a gradual process but vital initiative aimed at reaching the most needy communities in rural areas.

3.5 Conclusion

This Chapter has outlined the legal aid framework in Rwanda. It showed that the only provisions concerning free legal aid are articles 60-63 in the Law establishing the Bar. Yet, with the exception of children, there is no explicit right or obligation to legal representation at state expense in the Rwandan legal framework.

Nevertheless, the constitutional provision on right to a fair public hearing? could be interpreted as implying a right to legal representation at state expense if substantial injustice would otherwise result. The Chapter further examined the recently established Access to Justice Centers and showed that these are vital national initiatives to advance access to the courts.

149 It should be noted that the first Access to Justice Center has been created in Nyanza and is based in the Institute for Legal Practice and Development (ILPD). Others are established at Kibuye, Cyangugu and Rwamagana and Rulindo. Every province has at least one Access to Justice Center.

150 See the Rwandan Ministry of Justice available at www.minijust.gov.rw, accessed on 26 August 2009.

Several problems within the present legal aid framework in Rwanda have been identified. First of all, the provision of legal aid still lags far behind the demand. Second, the operation of Access to Justice Centres varies from place to place. They are still very few and they cannot serve the whole country, especially needy people from the remote areas. Though a system of pro bono could provide a necessary safety net to needy, it is not without problems. The quality of pro bono legal services cannot be guaranteed.

In the same vein, the Kigali Bar Association which is solely engaged in providing legal aid, apart from NGOs and University based Clinics, is inadequately funded. Owing to a lack of funding and enough number of practicing lawyers, there is a huge disproportion between the demand and supply of legal aid in Rwanda.

It is reaffirmed in the preamble of the Rwandan Constitution¹⁵¹ that Rwanda is committed to the rights enshrined in various international conventions including the UDHR and the ICCPR.¹⁵² Consequently, any Rwandan court is bound to interpret not only the Rwandan Constitution but also all its laws in light of the international standards. Legal aid should be accessible and tailored to suit the needs of people.¹⁵³ A legal aid scheme must have as its ultimate aim the provision of a wide range of legal services.

Chapter four analyses critically the legal aid system in Rwanda and seeks to earn some lessons from the South African Legal Aid system.

152 See ibid. point 9 of the preamble. It reads as follows: We, the People of Rwanda, Reaffirm our adherence to the principles of human rights enshrined in the United Nations Charter of 26 June 1945, the Convention on the Prevention and Punishment of the crime of Genocide of 9 December 1948, the Universal Declaration of Human Rights of 10 December 1948, the International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965, the International Convention on Civil and Political Rights of 19 December 1966, the International Covenant on Economic, Social and Cultural Rights of 19 December 1966, the Convention on the Elimination of all Forms of Discrimination against Women of 1 May 1980, the African Charter of Human and Peoples? Rights of 27 June 1981 and the Convention on the Rights of the Child of 20 November 1989.

CHAPTER FOUR: A CRITICAL ANALYSIS OF THE RWANDAN LEGAL AID SYSTEM IN A COMPARATIVE PERSPECTIVE

4.1 Introduction

The preceding Chapter outlined the Rwandan government?s attempts to establish a legal aid system that promotes and protects civil liberties. These laws are contained in a wide range of statutes, but more importantly in the new Constitution. This Chapter takes the thesis forward by analysing legal aid models and schemes in operation in Rwanda. The central aim of this Chapter is to demonstrate the importance of committed government participation in any legal aid model. Naturally, such a scheme would also require the participation and co-operation of advocates and lawyers. Scholars and legal commentators see these factors as a prerequisite for a successful legal aid scheme.¹⁵⁴

Clearly, replicating models adopted from one country in another without taking on board the host country?s unique circumstances is a recipe for failure. At the same time, there is no doubt that improving the system of legal aid must become one of the goals of legal development in Rwanda. Such transformation would facilitate the realisation of the constitutional right to legal assistance (including free legal assistance). But improving the system is impossible without a comprehensive evaluation and re-alignment of the current state of the system in a country where the poor constitute the bulk of the population.¹⁵⁵

It is trite that a successful justice system is measured by the efficacy of its inherent legal aid system and the ease with which people can access justice.¹⁵⁶ It is against this backdrop that this section of the thesis will analyse legal aid scheme models in place in South Africa. It is hoped that this exercise will inform efforts to build a coherent and efficient legal aid plan that is ideal for Rwanda and its troubled past. But before embarking at the task, a few words on principles for a design of legal aid systems are necessary.

155 For more details about the economic situation in Rwanda see supra note 106.

4.2 Principles for the design of legal aid systems and the correlation between the organisation of legal aid and the entire legal system

One of the essential aspects of access to justice is the right to receive competent legal assistance.¹⁵⁷ However, in most African countries including Rwanda, lawyers are beyond the means of most citizens. This forms a natural entry point into the discussion on principles for the design of legal aid systems.

It has been stated above, it is the responsibility of states to provide legal aid. This obligation arises from a range of international norms and standards.¹⁵⁸ For that reason, it is critical that states become deeply involved in funding legal aid frameworks to avoid polarising the country along two lines: one constituting citizens who have access to the judicial system and the other comprising those who do not. More importantly, the state responsibility to provide legal aid is crucial to any restructuring or establishment of legal aid systems.¹⁵⁹ Thus the state?s primary responsibility for legal assistance is predicated on several different basal strata, including moral, political, social-justice and legal.¹⁶⁰

As Mauro Cappelletti and Bryant Garth¹⁶¹ argue, if the poor are to get the services of lawyers, the state must provide the money. Thus, the commitment of state funds on a massive scale is a sine qua non in all modern legal service programmes.¹⁶² As noted above, in Rwanda, the government has recently established Access to Justice Centres through which people can access justice. ¹⁶³ This scheme will augment a parallel programme managed by the Bar Association which has been struggling to cope with large volumes of people requiring legal assistance. The Bar Association has been hampered in its drive to spread legal aid by its small human resource base.

157 See ample details in O Y Krivonosova et al. Provision of Legal Aid in the Russian Federation: Legislation and Practice (2005) Culombia University 1.

161 M Cappelleti and B Garth Access to justice: Emerging issues and perspectives V. III, DOTT A GIUFFRE EDITORE-Milan 393.

4.2.2 The contribution of the organized legal profession in access to justice through legal aid

Improving laws and building the capacity of lawyers to use those laws effectively is critical to protecting basic human rights. But for many, those rights are meaningless without access to justice.¹⁶⁴ It is commonly acknowledged that international conventions guarantee poor people legal assistance by assigned counsel free of charge when the interests of justice so require. But the scope of that guarantee should be understood in domestic setting. As said above, an accused person does not have an absolute right to choose the lawyer who represents him on legal aid.¹⁶⁵ The same situation prevails in Rwanda. Here, the better organised legal profession has sidled to the centre of the delivery of legal aid to the needy through pro bono¹⁶⁶ services. This is a replication of the situation in the United States, for example, where pro bono duty has always been a part of the legal profession.¹⁶⁷

Leo Milonas who has extensively studied the legal aid system in United States notes¹⁶⁸ that the Model Rule of Professional Conduct states that a lawyer should aspire to serve at least 50 hours per year of pro bono work.¹⁶⁹ He stressed that in the United States membership in the bar is a privilege burdened with conditions .... [An attorney] is received into that ancient fellowship for something more than private gain?. ¹⁷⁰ He becomes an officer of the court, and like the court itself, an instrument to advance the ends of justice.¹⁷¹

164 C Arup Defining pro bono: Models and Considerations School of Law and Legal Studies La Trobe University 15.

165 M Wladimiroff Representation and legal aid, the international Society for the reform of criminal law, available at http://www.isrcl.org/Papers/Wladimiroff.pdf, accessed on 15 August 2009.

166 Pro bono is one of the charitable legal aid models identified by Alan Paterson generally used to describe professional work undertaken voluntarily and without payment as a public service. See details in A Paterson Legal Aid at the Crossroads? (1991) 10 Civil Justice Quarterly 124.

It is submitted that a system of mandatory or volunteer pro bono or pro deo activities could provide a necessary safety net to legal aid systems, both in developing and developed countries. Thus, legal aid designers, especially bar leaders, should consider making legal aid mandatory within the legal profession in Rwanda. The pro bono facility¹⁷² though should not be misconstrued as means of relieving the state of its responsibility to fund access to justice.¹⁷³ It is important for the legal profession to promote and provide pro bono¹⁷⁴ services. Accordingly, it should be stressed that pro bono work can never displace an adequately funded, well-staffed, government-supported legal services programme for the poor. There should be a significant commitment from the state, in collaboration with private lawyers, for such a collaborative effort to succeed.

Legal aid designers argue that a functional justice system should identify and quantify the legal needs of low-income members of that community. ¹⁷⁵ These issues are key to accurate identification of a set of priorities in a legal aid system,¹⁷⁶ and go some way towards ameliorating the difficult task of choosing an ideal delivery-model from the broad range of possible options. In this regard, the needs of the poor must always remain central to the selection process.¹⁷⁷ It is vitally important therefore that decisions regarding the use of the limited resources available for legal aid should be based on an in-depth understanding of the legal needs of low-income people. A legal aid system should thus focus on client needs, their range, and their diversity. A vigorous legal aid system should also monitor the changing landscape of client needs. The difficulty of identifying needs and their changing nature speaks to the importance of developing and enhancing the systemic ability to identify and measure them.¹⁷⁸ It is thus fundamental that allocation decisions regarding the limited resources of legal aid should flow from an in-depth understanding of the legal needs of low-income people.

178 Z Yuhong A Brief Comparative Analysis of Criminal Legal Aid in Canada and China (2006) 3.

Priority-setting for legal aid in situations of limited resources - a position that Rwanda faces - gives rise to a number of fundamental questions of public policy. Policy planners are thus confronted with the dilemma of whether to give priority in resource allocation to legal aid spending in criminal law, for example, or to channel this to family law. Also, the choice of legal services delivery models must be responsive and adapted to the legal context in which services are required and the geographic context where they must be provided. These caveats prepare the road map upon which a brief analysis of legal aid systems in other countries can be conducted with a view to finding a coherent approach that can be extrapolated to suit the needs of the Rwandan community.

4.3 Brief critical analysis of the South African legal aid system

It is axiomatic throughout the world that the majority of needy people cannot afford to retain private counsel. This sad state of affairs is worsened by inefficient and underfunded government programmes that render hollow the promise of effective legal assistance for indigent persons facing criminal charges. In some countries, for instance, mandatory legal aid for the poor is secured by their various laws while in others the development of legal aid systems is still at an early stage. In South Africa, in addition to the enactment of enabling legislation in respect of legal aid, the government has injected massive amounts of money into the system to launch the framework and to keep it afloat.¹⁷⁹ An analysis of South African legal aid system would be more instructive at this stage.

4.3.1 Brief overview of the South African legal framework

The first attempt to establish an organised legal aid system in South Africa was made in 1935 when the South African Institute of Race Relations in consultation with the Department of Justice and the incorporated law society of the Transvaal, convened a conference on the matter.¹⁸⁰

180 See further details in Abramowitz Legal aid in South Africa (1960) 353; Cited by Hennie, supra note 5, 55.

As Van Hennie¹⁸¹ writes, before this intervention, a disjointed semblance of legal aid existed in the country in the form of fragmented legislative instruments that attempted to address the legal needs of the poor through gratuitous services rendered by members of the profession by way of pro bono¹⁸² and in forma pauperis¹⁸³ procedures.¹⁸⁴ As in the United Kingdom, lawyers are divided into advocates ¹⁸⁵ (barristers), and attorneys¹⁸⁶ (solicitors). Notably, this system is changing with certain attorneys being given the right to appear in the high courts.¹⁸⁷

A brief analysis of the South African legal aid system reveals that South Africa has wide-ranging legislation in as far as legal aid for the needy and disadvantaged people are concerned. Apart from recognising the right to access to justice in its Constitution,¹⁸⁸ the state provides access to justice through the Legal Aid Board¹⁸⁹. It should be noted that one of the objectives of the Legal Aid Board, as provided for in the legal aid act, is to provide legal representation at the expense of the state, in accordance with the Constitution¹⁹⁰.

4.3.1.2 Constitutional protection of the right to legal representation

The South African Constitution embodies a number of significant values that aim to protect the rights of the disadvantaged. These rights include the right of children to have a legal practitioner assigned to them by the state, and at state expense in proceedings affecting the child.¹⁹¹ This provision also appears in Rwandan legislation,¹⁹² although in

183 For details about this, see DJ McQuoid-Mason An Outline of Legal Aid in South Africa (1982) 17-22.

185 Largely practise in the High Courts. See Right of Appearance in Courts Act 62 of 1995 in South Africa

186 This Act also provides that these work mainly in the Lower Courts and brief advocates for High Court.

187 Attorneys who wish to appear in the high court must hold the LLB degree or at least 3 years practical experience. See Right of Appearance in Courts Act 62 of 1995 in South Africa.

189 It worthwhile to note that the Legal Aid Board has been set up by the Apartheid Government in terms of the Legal Aid Act, 22, 1969.

190 See Section 3 of the Legal Aid Act, 22 of 1969 as amended by the legal aid amendment Act, 20 of 1996.

192 See Article 21 of the Law No 27/2001 on the rights and protection of children against violence. See also article 185 of the Law No 13/2004 of 17/5/2004 on the code of criminal procedure as Amended and completed by the Law No 20/2006 of 22/04/2006, Official Journal Special No 27 May 2006.

practice the state is not always able to assign a legal practitioner to every child in court for civil and criminal proceedings.

Also, the South African constitution protects the right of detained persons, including sentenced prisoners¹⁹³ and accused persons¹⁹⁴ to have a legal practitioner assigned to them by the state, and at state expense if substantial injustice would otherwise result and to be informed of this right promptly. The substantial injustice would otherwise result where an accused was not provided legal representation at state expense if the accused could not afford the cost of his or her own representation to name but one among others circumstances.¹⁹⁵

4.3.1.3 Methods employed to facilitate access to legal aid in South Africa

Various methods for delivering legal aid services are employed in South Africa. The Legal Aid Board has put together a string of measures such as uncompensated private counsel (pro bono), state-compensated private counsel (judicare), state-funded candidate attorneys in rural law firms, state-funded law clinics; state-funded justice centres (one stop legal aid shops?), private specialist law firms, independent university law clinics, para-legal advice offices and legal insurance schemes in furtherance of the legal aid scheme.¹⁹⁶

It is useful to note that, in 1998, a National Legal Aid Forum was convened and it was agreed that state-compensated private counsel (judicare) had to be replaced with a justice centre model. However, since 1994, the Board has been contracted on behalf of the state to deliver legal services in criminal cases. This has had a major impact on its ability to continue using the judicare approach.¹⁹⁷ It is worth noting that the South African Legal Aid Board has been operating as the facilitator of the South African peoples? access to

196 See more details in GW Cook A History of Legal Aid in South Africa (1974) 28.

justice. Thus, it is crucial to analyse the operation of this Board, the pro bono and judicare models, the Justice Centers, and models employed in South Africa.¹⁹⁸

4.3.1.3.1 Brief overview of the operation of the South African Legal Aid Board

The Legal Aid Board has been the main vehicle for the delivery of legal aid services in South Africa.¹⁹⁹ It was given complete discretion as to how it would offer legal assistance to indigent persons. To this ends, it established a set of working rules which are incorporated in the Legal Aid Guide.²⁰⁰ In terms of the Legal Aid Act, the Board is required to render or make available legal aid to indigent persons?.²⁰¹ The objective of the Board is to render or to make available legal aid to indigent persons as widely as possible within its financial means.²⁰² To this end it excludes assistance for legal aid in certain categories of criminal²⁰³ and civil cases,²⁰⁴ even though a person qualifies in terms of the means test?.²⁰⁵

The Board views access to justice as the provision of different means by which the poor can achieve something akin to equality before the law and it equates equality before the law with meeting the need for legal assistance. It intends to achieve this through an access to justice approach that exhibits wide-ranging streams. The role of each of these different mechanisms in delivering legal aid services in South Africa are briefly analysed to see what Rwanda can replicate.

4.3.1.3.2 Pro bono and judicare models in South Africa and lessons learnt

The ethical rules of the advocate?s profession require advocates to take on legal aid
work.²⁰⁶ The latter must take the cases without compensation,²⁰⁷ but may recover their

198 These include private specialist law firms, independent university law clinics, para-legal advice offices, and legal insurance schemes.

199 It worthwhile to note that the Legal Aid Board has been set up by the Apartheid Government in terms of the Legal Aid Act, 22, 1969.

204 For instance in civil matters the Board must always be satisfied that there is merit in the case and that there is a reasonable prospect of success and recovery. See ibid.

206 See General Council of the Bar of South Africa Uniform Rules of Professional Ethics rule 6.3.1.

fees and disbursements at ordinary tariff rates if the litigant is awarded costs.²⁰⁸ As noted above, since 1994 the Board has been contracted on behalf of the state to deliver the legal services in criminal cases required by the Constitution and this has had a major impact on its ability to continue using the judicare approach.

One of the disadvantages of pro bono services is that pro bono clients may not receive the same level of service as paying clients, and many lawyers are reluctant to take on pro bono cases. As Van Hennie rightly argues, chances of mounting a successful comprehensive legal aid scheme based on pro bono work are minimal.²⁰⁹ Also, the South African experience is that the judicare system works where there is an adequate administrative structure to support it, proper accounting systems are in place to deal with claims for fees and disbursements expeditiously, and budget constraints keep pace with demand.²¹⁰

4.3.1.3.3 Justice Centers

The Board has set up Justice Centres which provide legal aid service for legal aid clients. The centres approach is to provide legal aid to the communities in rural and urban areas, such as legal advice, attendance to cases and using negotiation, mediation or arbitration. ²¹¹ The centers attend in both criminal and civil matters. ²¹² This is a noteworthy national scheme that Rwanda can replicate whilst making the recently established Justices Centers more accessible to the most needy Rwandan community.

There are a number of noteworthy elements in the way South African Justice Centers operate. In this connection, a wide range of services is rendered: from referrals, consultation and advice to litigation. Most importantly, the Board provides a broad range of legal services by qualified, salaried attorneys. Rwanda would need to replicate a South African precept that offers mandatory legal representation to poor people facing serious criminal charges, although the same right is not extended to civil litigants.²¹³

208 Ibid. Rule 40(7). For more details see McQuoid-Mason, supra note 183, 17-22.

213 Civil litigation encompasses many constitutional matters including socio-economic rights-related cases.

4.4 Critical analysis of the Rwandan legal aid scIIP I's P lIIls from a comparative perspective

Admittedly, the socio-economic variables that exist in Rwanda are somewhat different from those obtaining in South Africa. Additionally, Rwanda?s economic growth was seriously slowed by years of civil conflict which had the effect of unhinging all efforts to develop the country?s justice system. These factors will undoubtedly cause the Rwandan legal aid system to assume characteristics that will manifestly differ from the more mature frameworks we have alluded to.

4.4.1 Legal bureaus and lawyers in Rwanda

The South African Legal Aid Board was established to support the pro deo procedure that was failing to cope with demand.²¹⁴ Innovative strategies that included the creation of legal consultation offices? became necessary. As previously noted, these measures are already being undertaken by the government of Rwanda in the form of Access to Justice Centers established in various parts of the country.²¹⁵ However, corresponding steps to spread this system throughout the country to support the work of the Rwandan Bar Association are also necessary. Nonetheless, Rwanda lacks a national legal aid structure which can be split out to cover all local courts.

This justice centre approach will provide legal aid applicants with a one stop shop in urban and rural areas.²¹⁶ Centre staff will provide a service to the communities in terms of free legal advice, attendance to cases, and, where appropriate, by using negotiation, mediation or arbitration to avoid litigation. The emphasis will be on providing a full service to the needy community. This system could strongly contribute to access to justice in Rwanda by making lawyers accessible to the community.

4.4.2 Restrictions of the legal profession

It is necessary to return to a discussion of the provision of legal aid by lawyers who do not have advocate? status (in particular lawyers from human rights and other social organizations) and also by legal interns and students in law clinics,²¹⁷ who could undertake such activity under the effective supervision of a lawyer or law profession.

As noted above, in order to cover the whole country, the South African Legal Aid Board enters into agreements with paralegal advice offices, Lawyers for Human Rights, the University Law clinics, the Legal Resource Centers. Many advice offices have built up expertise in particular areas and so help the Legal Aid Board in providing legal aid services. These are sound methods that Rwanda can learn from in order to achieve the desired national coverage.

4.6 Conclusion

This Chapter analysed various issues relating to the governance of legal aid systems, a range of possible delivery models for providing publicly funded legal services and the factors weighing in favour of or against use of particular models in certain situations.

In short, this Chapter has considered the role of legal aid systems in promoting change within larger justice systems and in facilitating better access to justice. Thus, the concern was to address some of the most significant questions that legal aid planners should consider. These include the goals of the legal aid system, the range of coverage of the system, the types of delivery models to be used, clients? financial eligibility, the impact on legal aid of budgetary constraints, and issues relating to the management and governance of legal aid.

The Chapter examined the South African Legal Aid system and showed that the South
African Legal Aid Board is the main facilitator of poor people?s access to justice. It
showed that the Board intends to achieve this through an access to justice approach that

exhibits wide-ranging streams such as state-compensated private counsel (judicare), non-compensated private counsel (pro bono), Justice Centers, Co-operation agreements with lawyers for human rights and national legal internship programmes. In Rwanda the tendency has been to encourage lawyers to undertake pro bono or pro amico work, but this has never been mandatory. Rwanda does not have a state-compensated private counsel (judicare) system. However, more recent developments have resulted in the establishment of Access to Justice Centres in various parts of the country²¹⁸ to deal with the delivery of legal aid services.

Based on the critical analysis carried out for this thesis about the Rwandan legal framework on legal aid and in light of international standards on legal aid as well as those embodied in South African Legal aid system, some suggestions will be made in the next Chapter to improve access to legal aid services in Rwanda.

This study sought to analyse the Rwandan legal framework on legal aid as an important feature of access to justice. This has been done in light of international human rights standards. At the outset, it has been stressed that a government funded legal aid program has become an integral part of any justice system. The study also pointed out that for many Rwandans, legal aid is synonymous with access to justice. It has been shown that legal aid is basic to ensuring effective access to justice, more so in a developing country such as Rwanda. Owing to the fact that advices from others can help one overcome his shortcomings?, the study analysed the South African legal aid system bearing in mind that the mechanical transplantation of models or standards into a particular country context rarely meets with success.

Thus, Chapter one provided an introduction to the question of how a person who is unaware of his legal rights and has no knowledge of the services available to him is in no better position than he would be if there were no such rights and services. It also stressed the assertion that legal aid ensures that vulnerable and disadvantaged people are not denied access to justice because of their inability to pay for it. It also ensures that people accused of crime get a proper defence and a fair hearing. The Chapter further gave a brief historical background of Rwanda in as far as legal aid and access to justice are concerned.

Chapter two laid out the international and regional legal framework on legal aid and access to justice and the obligations of states to provide legal aid to the needy. The chapter demonstrated that providing legal aid is an obligation that flows from a variety of international treaties which are binding on Rwanda. In this connection, it has been underlined that one of the criticisms that some commentators levelled at these international standards is that the ICCPR fails to concretely address the right to civil legal aid. However, due to the fact that the ICCPR asserts the right to have legal assistance, in any case where the interests of justice so require, the writer argued that the state are required to «assign» legal representation even for civil matters in cases of indigence. Similarly, it has been shown that the ECHR has developed a practice which has

contributed a lot on this matter. In a number of cases, the ECHR has held that the right of access to the courts guaranteed by a number of international instruments oblige the state in certain circumstances to provide impecunious litigants with assistance of a lawyer in civil matters. Also, the thesis showed that while the international instruments do not specifically address the question of how legal aid is to be and the international instruments establish that states are required to provide legal aid where the interests of justice so require without making any distinction between civil or criminal matters.

Chapter three examined the availability of legal aid services in the Rwandan legal framework, and assessed the legal aid providers in Rwanda. It demonstrated that there are some deficiencies in the Rwandan legal aid system even though there are some guarantees on fair trial and access to justice in the Constitution. The study showed that the only provisions concerning free legal aid in the present Rwandan legislation are articles 60-63 in the Law Establishing the Bar. Yet, with the exception of children, there is no explicit right, or obligation to provide legal representation at state expense in the Rwandan legal framework. However, the thesis argued that the constitutional provision on right to a fair public hearing? could be interpreted as implying a right to legal representation at state expense if substantial injustice would otherwise result. The Chapter further examined the recently established Access to Justice Centers and showed that these are vital national initiative to ensure that needy people are able to secure effective access to courts. It is recommended that Rwanda, apart from setting up a separate governmental body responsible for providing the poor with free legal aid services, should extend these Access to Justice Centers in the whole country to reach the most needy throughout Rwanda.

Chapter four critically analysed the legal aid models? scheme put in place in Rwanda so as to find out whether or not they facilitate access to justice to the Rwandan needy community. It explored briefly the South African legal aid system with a view to finding out if Rwanda can benefit from it. It showed that the South African Legal Aid Board stands as the facilitator of poor people?s access to justice. The Board achieves this through an access to justice approach that exhibits wide-ranging streams such as state-compensated private counsel (judicare), non-compensated private counsel (pro bono), Justice Centers, co-operation agreements with lawyers for human rights, national legal

internship programme. Drawing from the South African experience experiences, it was pointed out that state involvement and the contribution of the organized legal profession are basics for effective legal aid system. These are viable concepts and sound legal principles that Rwanda can replicate.

It must be stressed that legal aid is an integral aspect of the justice system. If legal aid fails, justice fails. Thus, while recognising that important progress is taking place in the development of legal aid in Rwanda, there are a number of aspects that should be considered in establishing a stable, permanent and sustainable legal aid system. Rwanda needs to develop a more profound and nuanced understanding of the legal aid situation and to build a public dialogue on this basis. This is not only about money, but also about the constitutional legal, and policy requirements for legal aid. While cost effectiveness is an important goal, it should not drown out other objectives and principles that govern the delivery of legal aid.

5.2 The way forward

However, government funding alone will not suffice to meet the legal needs of all Rwandans. Likewise, the recently established Access to Justice Centers cannot have unlimited resources. Thus, Rwanda should consider other means of increasing access to legal services especially by requiring those middle-income earners who do not meet the criteria for legal aid but also cannot afford legal representation to contribute as a way of a client contribution.

As noted above, the only provisions on free legal aid under the present Rwandan legislation are articles 60-63 in the Law Establishing the Bar. Yet, with the exception of children, there is no explicit right or obligation to legal representation, at state expense. Thus, Rwanda will have to enact a separate law which sets specific obligations on the state and procedures for legal aid services delivery. Also, Rwanda will have to set up a separate governmental body, such as the South African Legal Aid Board, responsible for legal services delivery to the poor. This will stand as the facilitator of poor peoples? access to justice and coordinate all initiatives in this respect. This will also set up a liaison between the recently established Access to Justice Centers and diverse advices offices especially the Bar Association, NGOs and university law clinics.

Antonio Viana Acosta v. Uruguay, Communication No 110/1981 (29 March 1984) UN Doc CCPR/C/OP/2 at 148 (1990).

Avocats Sans Frontières (on behalf of Bwampamye) v. Burundi, ACHPR Communication No 231/99 (2000).

Belgium v. Spain (Barcelona Traction, Light and Power Co Case), ICJ Reports, 1970. Civil Liberties Organization v. Nigeria, ACHPR Communication No129/94 (1995). Commission Nationale des Droits de l'Homme et des Libertes v. Chad, ACHPR Communication No 74/92 (1995).

Dave Sewell v. Jamaica, Case 12.347, Report No 76/02 Inter-Am CHR Doc 5 rev 1 at 763 (2002).

Desmond Mokenzie & Andrew Downer et al. v. Jamaica, Inter-Am CHR April 13, 2000. Filártiga v. Norberto Peña-Irala (1980) ILM 966, USA Circuit Court of Appeals, 2nd Circuit.

Media Rights Agenda v. Nigeria, ACHPR Communication No 224/98 (2000). Michael Edwards v. Bahamas, Inter-Am CHR March 7, 2000.

Morael v. France Communication, No 207/1986 EHRC issued on 28 July 1989. OF v. Norway: Two Selected Decisions (1984) HRC 44.

The Law on the Bar No 3/97 of 19/3/1997 in Official Gazette No 8 of April 15, 1997

The Rwandan Law No 13/2004 of 17/5/2004 on the Code of Criminal Procedure, as amended and completed by the Law No 20/2006 of 22/04/2006, Official Gazette of 27 May 2006.

The Law No 27/2001 on the Rights and Protection of Children against Violence in Rwanda.

The Law No 18/2004 of 20/6/2004 on the Code of Civil, Commercial, Social and Administrative Procedures.

Universal Declaration of Human Rights, GA Res 217A (III), UN Doc A/810 at 71 (1948). International Covenant on Civil and Political Rights, GA Res 2200A (XXI), 21 UN, UN Doc A/6316 (1966), 999 UNTS 171, entered into force on 23 March, 1976.

International Covenant on Economic, Social and Cultural Rights, GA Res 2200A (XXI), 21 UN GAOR Supp No 16 at 49, UN Doc A/6316 (1966), 993 UNTS 3, entered into force Jan. 3, 1976.

European Convention for the Protection of Human Rights and Fundamental Freedoms,
ETS 5, 213 UNTS 222, entered into force September 3, 1953, as amended by Protocols

Nos 3, 5, and 8 which entered into force on 21 September 1970, 20 December 1971 and 1 January 1990 respectively.

African Charter on Human and Peoples' Rights, adopted June 27, 1981, OAU Doc CAB/LEG/67/3 Rev 5, 21 ILM 58 (1982), entered into force October 21, 1986.

The Convention on the Prevention and Punishment of the crime of Genocide of 9 December 1948.

The International Convention on the Elimination of All Forms of Racial Discrimination of 21 December 1965.

The Convention on the Elimination of all Forms of Discrimination against Women of 1 May 1980.

American Convention on Human Rights, OAS Treaty Series No 36, 1144 UNTS 123, entered into force July 18, 1978, reprinted in Basic Documents Pertaining to Human Rights in the Inter-American System, OEA/Ser L V/II.82 Doc 6 Rev 1 at 25 (1992).

Basic Principles on the Role of Lawyers, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, UN Doc A/CONF 144/28/Rev 1 at 118 (1990).

The United Nations Body of Principles for the protection of all Persons under any form of detention or imprisonment adopted by General Assembly resolution 43/173 of 9 December 1988.

The United Nations Standard Minimum Rules for the treatment of Prisoners adopted by Economic and Social Council resolution 663 (XXIV).

United Nations Standard Minimum Rules for the Administration of Juvenile Justice (The Beijing Rules?), GA Res 40/33, annex, 40 UN GAOR Supp No 53 at 207, UN Doc A/40/53(1985).

Body of Principles for the Protection of All Persons under Any Form of Detention or Imprisonment, GA Res. 43/173, annex, 43 UN GAOR Supp No 49 at 298, UN Doc A/43/49 (1988).

Standard Minimum Rules for the Treatment of Prisoners, adopted August 30, 1955, by the First United Nations Congress on the Prevention of Crime and the Treatment of Offenders, UN Doc A/CONF/611, amended ESC Res 2076, 62 UN ESCOR Supp No 1 at 35, UN Doc E/5988 (1977).

United Nations Standard Minimum Rules for the Administration of Juvenile Justice, GA Res 40/33, annex, 40 UN GAOR Supp No 53 at 207, UN Doc A/40/53 (1985).

Protocol to the African Charter on Human and Peoples' Rights on the Rights of Women in Africa, Adopted by the 2^nd Ordinary Session of the Assembly of the Union, Maputo, CAB/LEG/66.6 (September 13, 2000); reprinted in 1 African Human Rights Law Journal 40, entered into force November 25, 2005.

African Commission on Human and Peoples' Rights, Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa. DOC/OS (XXX) 247, reprinted in 12 International Hum Rights Report 1180 (2005).

Guidelines on the Role of Prosecutors, Eighth United Nations Congress on the Prevention of Crime and the Treatment of Offenders, Havana, 27 August to 7 September 1990, UN Doc A/ CONF 144/28/Rev 1 at 189 (1990).

United Nations Rules for the Protection of Juveniles Deprived of their Liberty, GA Res 45/113, annex, 45 UN GAOR Supp No 49A at 205, UN Doc A/ 45/49 (1990).

Abramowitz N, Legal aid in South Africa? (1960) 77 South African Law Journal 351. Bangamwabo F, The implementation of international and regional human rights instruments in the Namibian legal framework (2004) 165-167.

Bigsten A and Isaksson AS, Growth and poverty in Rwanda: Evaluating the EDPRS 2008-2012 (2008).

Blankenburg E, Comparative legal aid schemes in Europe? (1992) 11 Civil Justice Quarterly 106-119.

Dyzehhaus D, Normative justifications for the provision of legal aid? (1997) in A blueprint for publicity funded legal services, Vol. 2 the Ontario Legal Aid Review. Elisabeth E, Interaction between international and domestic human rights law: A canadian perspective (2001).

Flood J & Whyte A, What's wrong with legal aid? Lessons from outside the UK? (2006) in Civil Justice Quarterly.

Gomien et al., Law and practice of the European Convention on Human Rights and the European Social Charter (1996).

Hennie Van A, Legal aid in South Africa: making justice reality? (2005), 49 Journal of African Law.

Jackie D, Courts and the poor in South Africa: A critique of systemic judicial failures to advance transformative justice (2008).

Krivonosova et al., Provision of legal aid in the Russian Federation: Legislation and practice (2005).

Mauro C and Bryant G, Access to justice: Emerging issues and perspectives (2000). McDougal, Myres, The impact of international law upon national law: A policy-oriented perspective (1959).

McQuoid-Maison D, Legal aid in Nigeria: Using national youth service corps public defenders to expand the services of the legal aid council? (2003) 47 Journal of African Law.

Obeng M, Three most important features of the South African legal system that others should understand (2004).

Paterson A, Legal aid at the crossroads? (1991) 10 Civil Justice Quarterly 124. Richard Y, Access to criminal justice: Legal, lawyers and the defence of liberty (1998). Seidl H, Transformation or adoption of international law into municipal law (1963). Skinnider E, The responsibility of States to provide legal aid (2002).

Steiner HJ al. (eds), International human rights in context: Law, politics, morals (2000). Triepel H, Droit international et droit interne (1920).

Uzelac A and Van Rhee CH, Access to justice and the judiciary: Towards new European standards of affordability, quality and efficiency of civil adjudication (2009).

Van As H J, Legal representation as an element of access to justice, unpublished LLD Thesis, University of Stellenbosch (1999).

Van Zeeland CMC and Barendrecht JM, Legal aid systems compared (2003). Zemans H F, Perspectives on legal aid: An international survey (1980).

Zhang Y, A brief comparative analysis of criminal legal aid in Canada and China (2006).

Abramowicz L, The critical characteristics of community legal aid clinics in Ontario (2003) Journal of Law and Social Policy, available at http://www.aclco.org/f/Critical_Characteristics.pdf, Accessed on 15 June 2009.

McCamus J, The Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services (2005) available at

The Danish Institute for Human Rights (DIHR), A report on the legal assistance available in Rwanda (2004), available at

Wladimiroff M, Representation and legal aid, the international society for the reform of criminal law (2006), available at http://www.isrcl.org/Papers/Wladimiroff.pdf, accessed on 15 August 2009.