THEME: "ACCESSIBLE AND EFFECTIVE LEGAL AID: THE KEY TO
UNLOCKING UGANDA’S DEVELOPMENT POTENTIAL"
1.0.
Introduction
Access
to justice is clearly reiterated as an inalienable right in international and
regional human rights instruments.[1] The
ICCPR elaborates access to justice as including the right to legal assistance[2] and
Uganda’s Constitution further gives entitlement for an accused person charged
with a capital offense to be represented in court at state expense.[3] In
a number of respects, the national legal framework including the Poor Persons
Defence Act; the Advocates (Amendment) Act; the Advocates (Pro bono Services to
Indigent Persons) Regulations; and the Advocates (Student Practice) Rules
provide for this right by way of legal aid service provision.
Access
to justice through effective provision of legal aid services is more than just
improving the ability of people (especially the indigent) to seek and
obtain a remedy through formal or informal institutions of justice delivery. It
is also a fundamental characteristic of good governance – the backbone on which
development processes are based to ensure that services are equitably delivered
to citizens and that peace reigns in the nation.
Read
together, all the above mentioned legislations create a foundation for
providing state sponsored legal aid; registration and regulation of legal aid
service provision; provision of legal aid in legal practice; and provision of
legal assistance as part of legal training. In spite of such existing frameworks,
legal aid services are still uncoordinated, inaccessible, and not appropriately
aligned to the national strategic objectives aimed at unlocking Uganda’s
development.
2.0.
Background
Legal
Aid Service Providers (LASPs) in Uganda use various mechanisms to deliver
efficient and affordable justice such as alternative dispute resolution, legal
and human rights awareness and paralegals. This has enabled poor and marginalised
people to enforce, and defend their rights and those of their beneficiaries,
protect their property, get legal representation and assistance in criminal
matters; and know their rights. Legal aid has further contributed to poverty
reduction by enabling poor women seeking a livelihood to provide family
maintenance, poor widows to secure their land and ensure that they continue to
have basic necessities and reduce their vulnerability, removed juveniles from
the criminal justice system to enable them continue to receive an education,
and ensured that poor and vulnerable workers’ rights are defended.[4]
It
is evident that amidst such efforts, Uganda’s economy has moved from recovery to
growth based on short to medium-term planning over
the last three decades. Several complementary policies have been implemented including
the Structural Adjustment Programmes (SAPs), the Economic Recovery Programme
(ERP), and Poverty Eradication Action Plan (PEAP). In 2007, Government further adopted
a National Development Planning Framework which provides for a 30-year vision to
be implemented through three 10-year plans; six 5-year National Development
Plans (NDPs); Sector Investment Plans (SIPs); Local Government Development
Plans (LGDPs); Annual work plans; and Budgets. All this has been done to ensure
development paths and strategies towards “A Transformed Ugandan Society from a
Peasant to a Modern and Prosperous Country.
As
a result, the Vision 2040 was also conceptualised around strengthening the fundamentals
of the economy to harness the abundant opportunities around the country. Among
other objectives, this vision aims at consolidating the tenets of good governance
which include constitutional democracy; protection of human rights; the rule of
law; free and fair political and electoral processes; transparency and accountability;
Government effectiveness and regulatory quality; as well as citizens’
participation in the development processes. There is commitment to strengthening
the coordination, implementation,
monitoring and evaluation systems at national, sector and local governments so
that they are fully harmonised. In doing this government ensures the
participation of all players including private sector, media, civil society,
cultural leaders, religious leaders and citizens.[5]
In
the same regard, the first 5-year National Development Plan was launched in
April 2010 with focus, among other strategic objectives, on enhancing access to
justice for all (particularly the poor and marginalised persons). It proposes
strategic interventions of developing and implementing a policy and framework
for countrywide provision of legal aid as well as integrating innovative pilot
and low cost models for aid. So far, a Draft National Legal Aid Policy has been
developed with proposals for provision of legal advice and assistance in both
criminal and civil cases by advocates, bar-course students and law graduates
awaiting enrolment (under the supervision of an advocate), students at Law school
clinics and accredited paralegals.[6]
Legal
aid is currently provided by state actors such as the Judiciary through court
circuits and the Justice Centres; the Uganda Police through the Community
Liaison Office and the Child and Family Protection Unit; Ministry of Gender,
Labour and Social Development through the Probation and Welfare Office and the
Community Development Office; Uganda Prisons Services; Uganda Human Rights
Commission; Administrator General’s Office; and Local Council Courts. On the
other hand, Non-state Legal Aid Service Providers[7]
(LASPs) also provide services in civil and criminal matters such as legal
advice, counselling, alternative dispute resolution, human rights awareness,
prison decongestion, and where feasible engage in court representation. These LASPs
are coordinated under the Legal Aid Service Network (LASPNET) which was only
established in 2004. However, the Uganda Law Society (ULS) has also enhanced
access to justice by coordinating the Pro Bono scheme and the Legal Aid Project.
3.0.
Rationale for the Legal
Aid Conference
The
NDP (2010) states that Uganda’s development is constrained by weak public
sector management and administration characterised by weak policy, legal and regulatory
frameworks; weak institutional structures and systems; oversized public
administration; weak civil society and civic participation; inadequate data and
information; inadequate standards and weak quality infrastructure; overlapping
mandates; as well as limited social protection and support systems.
Historically,
Government’s implementation framework for legal aid has been limited to the
State Brief Scheme whereby a person accused of a capital offence has entitlement
to legal representation at state expense.[8]
The 1st National Legal Aid Conference which was held in 2011 called on
government to prioritise legal aid provision as a right as well as a necessity
for promotion of public order and the rule of law. The LASPs have continued to
complement government efforts in provision of legal aid but still face a number
of challenges with regard to institutional mandates, funding alternatives, capacity
development, service quality and standards.[9] This
time around, the 2nd National Legal Aid Conference seeks to advance
the debate on how to optimise the effectiveness of the existing legal aid framework
but also assess progress made towards adoption of the draft National Legal Aid
Policy, including the development of appropriate legislation.
Therefore, the
participants will assess the tangible benefits of legal aid to the development
agenda, focusing on the key themes of gender equality, poverty eradication, as
well as social and economic wellbeing. They will determine existing capacities
and/or opportunities for improving legal aid service delivery within the
framework of vision 2040. This will be an opportunity to identify success
stories and lessons learned but also address the major policy gaps, regulatory
challenges, and practical limitations of achieving the national legal aid
priorities, in relation to broader development strategies, so as to ensure
prosperity for all Ugandans.
The
participants will include state and non-state actors such as members of
parliament, judicial officers, prosecutors, legal aid service providers,
academia, human rights activists, religious and traditional leaders, as well as
officers from the Uganda Police Forces and Uganda Prison Services.
4.0.
Objective
The conference is intended to demonstrate the relevance of legal aid service
provision to economic, social and cultural development. But specifically, it
will evaluate implementation and institutional frameworks for delivery of legal
aid in Uganda, set future actions founded on best practices and drawing from
the conference discussions, as well as follow-up progress made regarding the
major issues raised during the 1st national legal aid conference.
5.0.
Expected Outputs
·
An
elaborate conference report and position paper (expression of the agreed
undertakings)
·
At
least 8 working papers on legal aid service provision prepared, published and
disseminated
Five
agreed action points to be followed up in 2014 aro
[1] The
Universal Declaration of Human Rights, Covenant on Civil and Political Rights,
Covenant on Economic, Social and Cultural Rights; and the
African Charter on Peoples and Human Rights, each contain a clause to the
effect that all persons are equal before and under the law and shall enjoy
equal protection of the law.
[2]
Article 14(3) of the ICCPR states that a
person facing criminal charges shall be entitled to be tried in his presence,
to defend himself in person or through legal assistance; and if he does not
have legal assistance, to be informed of this right; and to have free legal
assistance assigned to him, in any case where the interests of justice so
require if he does not have sufficient
means to pay for it.”
[3]
Article 28(3)(e) of the Constitution of the Republic of Uganda
[4] LASPs assisted more than 3.6
million people in Uganda between 2004 and 2010 (Review Report, Legal Aid Basket
Fund, November 2010)
[5] Uganda Vision 2040, page
104ff
[6] In
Uganda, a paralegal is a person with qualifications in law, other than a degree
in law. However, people with minimal training in legal aspects have provided legal
aid in many cases including legal advice, legal education, and mediating
disputes e.g. the Paralegal Advisory Services has focus on educating
communities on the criminal justice system, procedures, basic law relating to
common offences, rights and obligations of suspects/prisoners; as well as following
up cases in the criminal justice system to increase case disposal.
[7]
Majority of these actors are registered and operating as Non-governmental
Organisations and with particular thematic focus and specific geographical
coverage within the scope of their organisational capacity and strategies
[8] However, this scheme is
plagued with challenges such as inadequacy of funds,
lack of adequate supervision of advocates; and lack of commitment by advocates
when handling the cases.
[9] Generally,
legal aid service provision is very fragmented. Most
improvements towards developing a national legal aid scheme have been driven by
development partners, e.g. the Legal Aid Basket Fund (LABF) and the Democratic
Governance Facility (DGF).
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