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.
218 For more details See supra note 149.
CHAPTER FIVE: CONCLUSION 5.1 Conclusions
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.
| 
