Access to justice and the international law standards

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

27 See Article 60 of the Law No 3/97 of 19/3/1997, supra note 21.

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.

²⁹ See among others Zemans, supra note 11. See also the Danish Institute for Human Rights (DIHR), A report on the legal assistance available in Rwanda, April 2004, available at http://www.humanrights.dk/files/pdf/Publikationer/final_legal_aid_report_eng_040412.pdf, accessed on 13 May 2009.

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.

30 L Milonas Ethics, access to justice and pro bono work: The United States legal profession, available at http://www.abcny.org/VanceCenter/PDF/probono/pdf, accessed on 20 July 2009.

³¹ See Hennie, supra note 5, 61.

³² Ibid.

³³ DIHR, supra note 29.

³⁴ Ibid. p. 53

³⁵ Ibid. p. 63

³⁶ Bass et al. supra note 6, 5.