Access to justice and the international law standards

2.4 Conclusion

Without being exhaustive, this Chapter has analysed some of the essential international standards on legal aid in international law. Emphasis was placed on instruments relevant to the African continent. These comprise provisions that oblige the state to provide legal aid to ensure access to justice for all. It should be emphasised nonetheless that specific provisions on legal aid in most international and regional instruments, including the ICCPR, place more weight on matters of criminal proceedings, and not in civil proceedings.⁸⁹

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, it has been argued that states are required to grant? legal aid even in civil matters in appropriate cases. Both the HRC and the African Commission have that legal aid forms part of the right to a fair trial and that it should apply even in civil proceedings.

Rwanda is party to almost all these international and African instruments discussed above. As a result non one should be prevented by economic obstacles from pursuing or defending his right before any court, be it criminal, civil, commercial, administrative, or social in Rwanda. To this end, every one should have a right to legal aid to ward off the danger of condoning injustice.

In the next Chapter, the thesis will focus on the Rwandan legal framework. The aim is to
find out if this framework effectively provides for legal aid access to justice by the needy.

89 See details in E Skinnider The responsibility of States to provide legal aid (2002) The International Centre for Criminal Law Reform and Criminal Justice Policy Canada 263.

CHAPTER THREE: THE LEGAL FRAMEWORK GOVERNING LEGAL AID IN RWANDA

3.1 Introduction

As discussed in the second Chapter, the duty to offer legal aid flows from a variety of international treaties. It is thus the responsibility of states to provide this form of aid to the needy. This Chapter will examine the availability of legal aid mechanisms in the Rwandan legal framework, and then critically assesses legal aid providers in the country. It should be noted, however, that a critical analysis of the legal aid models applied in Rwanda in this respect will be discussed in depth in Chapter IV.

Before embarking on the task at hand, I will briefly trace the historical evolution of the Rwandan legislature to foreground the Chapter. Invariably, this brief is rooted in the period before the current Constitution was adopted .⁹⁰ The aim here is to demonstrate that legal aid for the indigent was not a priority for the Rwandan legislature before the constitutional reforms. From there, I will focus on the strides that Rwanda has taken towards addressing this issue and expose which areas still need strengthening.

3.2 Brief historical background

Government involvement in the provision of legal aid in Rwanda is a relatively new phenomenon. This development happened primarily after the 1994 Tutsi genocide and the concomitant interest in human rights this whipped up in Rwanda.

A study carried out in 1979 in Rwanda by a group of jurists found that Rwanda was among a group of countries where legal aid was not prioritised.⁹¹ This was also the case in most of the African countries surveyed. A contributing factor to this situation was the factor that the concerned countries had very few trained trained lawyers. For example, in

⁹⁰ The current Constitution of the Republic of Rwanda has been adopted via referendum on June 4, 2003.

⁹¹ See Zemans, supra note 11, 14.

1975, Rwanda had only 15 lawyers working in private practice for a population of some 4.5 million (i.e. a ration of 1-300,000).⁹²

Before 1996, the right to legal aid and advice was only contained in the then Code of Civil Procedures.⁹³ Article 380, provides that an indigent party can be completely or partially exempted from procedural costs. The right to legal aid is reflected in Article 82 which provides that a party may be represented or assisted in all courts by an agent. Nonetheless, these provisions were not fully implemented. Significant changes introduced only after the 1994 genocide when legal aid parlance found its way into the current Constitution and subsequent enabling legislation.

The first attempt to establish organised legal aid in Rwanda was the law No 3/97 of 19 March 1997 which created the Bar of Rwanda. Since then, Rwanda has introduced the right to a fair trial in a number of statutes.⁹⁴ The Law No 3/97 was the boldest statement of intention by the Rwandan government to provide free legal services to the needy.⁹⁵ As said above, mere physical access to courts alone is inadequate: litigants need to be heard as well. Below, this Chapter explores legal aid in the Rwandan system.