2.2 The conceptual link between access to justice and
legal aid
A central tenet of the rule of law is the principle of
equality before the law for all citizens. Legal aid should be available for
those who cannot afford the costs of justice in order to ensure that justice
does not become a preserve for the rich. This underscores the importance of
availing a robust legal aid system to the poor who constitute, in most African
societies, the bulk of the population. Accordingly, the relationship between an
efficient and effective legal aid system and access to justice for the poor is
obvious. As Uzelac and Van Rhee rightly argue, in most sub-Saharan societies,
people of the deepest economic weakness suffer also from the deepest legal
vulnerability.42
Whilst the term access to justice? is broader than
legal aid?,43 legal aid is viewed as a means of ensuring
a justice system that is accessible and available to all.44
Significantly, access to justice is primarily concerned with giving every
citizen the opportunity to assert their rights. In practice, it is now globally
acknowledged that multiplying the number of courts alone does not mechanically
translate into fulfillment of people?s right to access justice.45
In this connection, the ease with which citizens? access
competent, independent and impartial courts of law indicates the presence of a
healthy human rights system in any society. When the right of access to justice
is not protected, all other related rights and freedoms are placed in
jeopardy.46 One of the most essential aspects of access to justice
is the right to legal aid for the needy.47
42 A Uzelac and C H Van Rhee Access to justice and
the judiciary: Towards new European standards of affordability, quality and
efficiency of civil adjudication (2009) Antwerp-Oxford-Portland 45.
43 See details in Y Richard Access to criminal
justice: Legal, lawyers and the defence of liberty (1998) Blackstone Press
Limited 10.
44 Ibid.
45 See Bass et al., supra note 6, 20.
46 Ibid.
47 Zemans, supra note 11, 6.
Mere formal recognition of the principle that all men are
equal guarantee equality before the court would not mean much if one party has
a lawyer and the other does not. Effective access to justice is achieved only
when no person is deterred by financial or any other barriers from asserting a
right through legal means. While the ultimate realisation of this goal may be
utopian, significant steps towards achieving this milestone can be taken by
constructing a robust legal aid system that is accessible to all. Hence, the
right to legal aid is fundamental to ensuring that there is effective access to
justice in a community.
2.3 International law rules on legal aid and access to
justice
A number of international and regional treaties require states
to provide legal aid to the needy. These treaties include, among others, the
ICCPR,48 the European Convention on Human Rights and Fundamental
Freedoms (ECHR),49 the American Convention on human
rights,50 and the African Charter on Human and Peoples?
Rights.51 In addition, a plethora of other instruments designed to
provide guidance to states such as declarations, principles, rules,
recommendations and guidelines bolster the international human rights
edifice.52
This dissertation does not attempt to assess the extent to
which various states are in compliance with their international obligations
with respect to the provision of legal aid. Rather, it assesses and critically
analyses the availability of the legal aid services in the Rwandan legal
framework. Accordingly, it lays emphasis on those international and African
human rights instruments that are relevant to the Rwandan situation. However,
some reference will also be made to other regional instruments.
48 Supra note 40.
49 Supra note 2.
50 Supra note 39.
51 Supra note 2.
52 It is worth stressing that while these
instruments have been accepted by a number of states, they are not legally
binding upon states but instead they are considered to have moral force. These
are, among others, the United Nations Basic Principles on the role of Lawyers,
Eighth United Nations Congress on the Prevention of Crime and the Treatment of
Offenders, Havana, 27 August to 7 September 1990, UN Doc A/CONF 144/28/Rev 1 at
118 (1990), the United Nations Body of Principles for the Protection of all
Persons under Any form of Detention or Imprisonment, GA Res. 43/173, annex, 43
UN GAOR Supp No 49 at 298, UN Doc A/43/49 (1988), the United Nations Standard
Minimum Rules for the Treatment of Prisoners, GA Res 40/33, annex, 40 UN GAOR
Supp No 53 at 207, UN Doc A/40/53(1985) and the United Nations standard Minimum
Rules for the Administration of Juvenile Justice GA Res 40/33, annex, 40 UN
GAOR Supp No 53 at 207, UN Doc A/40/53 (1985).
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