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.