Access to justice and the international law standards

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

108 See further details in Hennie, supra note 5, 58.

109 See X, A Framework for Strengthening Access to Justice in Indonesia available from www http://siteresources.worldbank.org/INTJUSFORPOOR/Resources/A2JFrameworkEnglish.pdf, accessed on 14 June 2009.

110 Supra note 17.

111 See Articles 60-63 of the Law No 3/97 of 19 March 1997.

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.

114 Article 60 of the Law No 3/97 of 19 March 1997.

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

115 See DIHR?s report, supra note 29.

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.

120 See details at www.rwandaparliament.gov.rw, accessed on 20 June 2009.

121 Ibid.

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.

123 Article 61.

124 Article 62.

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.

126 Ibid. Article 96.

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.

129 See supra note 19.

130 See supra note 106.

131 See Article 50, 94 and 96 of the Law of the Bar.

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.

133 See Article 19 of the Constitution.

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.