 The provision of legal aid services by state-funded mechanisms in Uganda: challenges and opportunities Ag. Senior Technical Advisor, Justice Law and Order Sector Thursday 26 th June 2014

 Legal aid is the provision of free legal services.  In Uganda legal aid is directed at free legal representation for accused persons in capital cases.  Article 28(3) (e) of the Constitution makes provision for legal representation at the expense of the State in the case of any offence that carries a sentence of death or imprisonment for life.

 In the recent past, legal aid services have been strongly associated with non-state actors.  This has been justifiable as the non-state legal aid service providers have been at the forefront of the delivery of services and growth of this sector.  State actors though not as recognisable have been providing services inline with our national and international commitments.

 Our legal aid service provision has been grounded in our international and regional commitments  Article 14 (3) (d) of the International Covenant on Civil and Political Rights provides for the right to legal assistance without payment if a person does not have sufficient means to pay for it.  Article 17 of the Convention on the Rights of the Child states that children deprived of their liberty have the right to prompt access to legal and other appropriate assistance before court or other competent, independent and impartial authority, and to a prompt decision on any such action.

 Article 2(c) of the Convention on the Elimination of All form of Discrimination Against Women states that the duty to establish legal protection of the rights of women on an equal basis with men and ensure through competent tribunals and other public institutions the effective protection of women against any act of discrimination.  Article 7 (1) (c) of the African Charter on Human and Peoples’ Rights provides for the right to defence, including the right to be defended by counsel of one’s choice.  Article 17(2) (c) (iii) of the African Charter on the rights and Welfare of the Child provides that every child accused in infringing the penal law shall be afforded legal and other appropriate assistance in the preparation and presentation of his defence.

 Article 8(a) of the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa states that States Parties take appropriate measures to ensure effective access by women to judicial and legal services, including legal aid.  Article 18(f) of the African Youth Charter stipulates the right of every young person (accused and convicted) to a lawyer.

 In view of Article 28(3) (e) the State has established systems for the provision of legal aid services.  These are provided under various legislation including: o The Poor Persons Defence Act, 2000 o Advocates (Amendment) Act 27 of 2002 o Advocates (Student Practice) Regulations, 2004

 Various schemes have been put in place to provide legal aid services by the State: o Judiciary State Briefs Scheme This operationalizes the provisions of the Constitution; The Judiciary receives funds in its budget for State Briefs ; These are disbursed as part of the general sessions disbursements to Advocates. Registrars invite Advocates to take on cases. They are then paid as determined by the Judge based on the complexity of the case and duration of the proceedings.

 Judiciary State Brief Scheme: o The system has overtime ensured that accused person, who would otherwise not have been able to afford a lawyer are represented and provided with a fair trial. Challenges - Most senior and experienced lawyers avoid taking on State Briefs as they consider them time consuming and not lucrative. Therefore many of the lawyers appointed may not have the skills commensurate with the seriousness of the offence.

 Challenges (cont’d) o Lawyers are often appointed at short notice, shortly before the trial commences and therefore do not sufficient time with their clients to prepare their case. o The fees are low and there are no incentives built into the scheme to encourage the take up of such cases. o The State briefs scheme only covers the trial proceedings and does not extend to advice or representation at the appeal level. o The State Brief scheme excludes those charged with serious non-capital offences in the lower courts who nevertheless face long prison terms.

 Justice Centres Uganda:  This is a pilot project of the Justice Law and Order Sector to provide a one-stop facility for the provision of various legal aid services. The Justice Centres are staffed by lawyers, paralegals and persons trained in psycho-social services.  They use 3 approaches: o Delivery of legal aid through clinics; o Community outreach model; o Human rights advocacy.

The Centres provide legal advice, representation, alternative dispute resolution, counselling, referrals, legal awareness creation and advocacy. The Justice centres have diversified the state provided services and have provided a holistic (criminal, civil and support services) approach to legal aid service provision. Challenges: The Centres are still in the pilot phase and each centre covers a very wide area and is therefore overstretched.

 The Uganda Human Rights Commission (UHRC): - The UHRC provides legal advice, mediation, investigation and adjudication of human rights violations. - The UHRC has offices throughout the country that conduct investigations and mediate matters to facilitate amicable settlement of a wide range of matters. - The Tribunal adjudicates on matters involving violation of rights and its decisions are enforceable in the same manner as Court decisions. - The Commission does however still face challenges in the enforcement of its decisions, particularly payments of compensation and its mandate is limited to human rights violations

 Uganda Law Council- Pro-bono scheme  The Advocates Act provides for the pro bono legal aid scheme under which free legal services or payment in lieu of services is provided by Advocates.  The Scheme is overseen by the Law Council.  It enables the indigent to benefit from the skills of senior and professional advocates and widens the available pool of legal professionals to provide legal aid services.  The Scheme does suffer from some challenges including lack of clarity on who pays fees and the mandatory nature of the scheme which has been challenged by Advocates.

 Other structures that provide legal assistance and advice o Probation and Social Welfare services. o Child and Family Protection Unit of the Uganda Police Force o Administrator General o Local Council Courts o Judiciary e-Justice Platform – web based platform for legal aid service provision, self help mechanism, faster processing of complaints and information source for non-state actors

 State funded legal aid services are in place and have been operational for a while.  Its scope is however limited.  The different schemes operate independent of each other and independently of the non-state actors.  There is no overarching mechanism to oversee all the different models.  As a result there is duplication of services.

 Various options have been tested and found to be viable.  Structures are in existence to regulate or provide legal aid services (Law Council, Justice Centers Uganda).  Non-state partners are in place across the country and have been working closely with Government.  Resources are already available and being provided to the regulatory and service provision entities.

 The demand and appreciation of the service is high and will go a long way in enhancing access to justice and improving on the social and economic well being of the people.  Development partners are supportive and keen to see the growth of legal aid in Uganda.

 For better coordination of the State provided legal aid services, there is the need to adopt a comprehensive legal aid scheme that addresses all aspects of legal aid – advice, representation and related support services as well as encompassing both criminal and civil justice.  There is need to strengthen the regulator and empower them to oversee all facets of legal aid service provision.

 There is need to establish and resource a national legal aid service provider as a one-stop centre for the provision of comprehensive legal aid services in all spheres of law.  There is need to create a more systematic link between the non-state and state providers to capitalise on the available resources, create synergies and avoid duplication.

 The Justice Law and Order Sector proposals have been captured in the draft National Legal Aid Policy, which it is anticipated will provide the framework for a strong and holistic and comprehensive legal aid scheme to strengthen the provision of free legal service to those who need it the most.  The draft policy has been finalised and is before Cabinet.