Access to justice and the international law standards

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³⁷ See details in H J Van As Legal representation as an element of access to justice (1999) unpublished LLD, Thesis completed at the University of Stellenbosch; Cited in Hennie, supra note 5, 65.

³⁸ Ibid.

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

Chapter V provides a conclusion to the study as well as recommendations.

CHAPTER TWO: LEGAL AID AND ACCESS TO JUSTICE IN INTERNATIONAL LAW

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.