Legal Aid for Africa

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Written by Victoria Holdsworth

Last year Legal Aid South Africa supported nearly 800,000 people who would otherwise have had no recourse to justice because they could not afford legal fees.

Of those was a 16-year-old girl living on the streets and under arrest for possession of drugs. Another case involved a compensation settlement for families facing eviction from the land they had lived on for over a century.

“It’s simply not enough to have protective laws, functional institutions or progressive constitutions. Accessing justice is fundamental to enacting the rule of law and legal aid is a precondition for effecting it, by providing assistance to people otherwise unable to afford legal representation,” says Justice Mlambo, Chairperson of Legal Aid South Africa.

“Effectively, we operate the largest law firm in the country which helps make our constitution a living document that promotes, protects and defends peoples’ rights.”

Legal Aid South Africa provides an independent service dispensed through 64 Justice Centres across South Africa, usually located near a court and staffed by salaried legal practitioners. It is to these centres that many people go when they run into trouble and the case studies below are an illustration of some of the matters dealt with at the centres.

The father of a 5 year old sought legal assistance from one of the Justice Centres when the Department of Health refused to provide medication to his daughter who suffers from a rare disease. Without this medication the prognosis was that his daughter would not survive.  The Department’s refusal to provide the medication was based on its high cost. With expert medical opinions on the prognosis and necessity of the medication Legal Aid SA argued that by refusing to provide the medication the Department was infringing on the right to life of the five year old child. On receipt of the demand to provide the medication, failing which legal action would be instituted, the Department acquiesced and the required medication was provided.

In the very unique case of SMG v OR (names removed to protect the identity of the child) one of the Justice Centres ensured that the voice of a 13 year old boy was heard when the Court was tasked with deciding on contact and care arrangements for him. In this matter the biological mother of the boy and a gay friend (Applicant) shared a residence and household. During this period, the Applicant became a father figure to the boy and a strong bond was formed. When the mother married, she moved to another province and frustrated contact attempts between the Applicant and the boy. The Applicant approached a Court for a parenting plan to confirm that he can exercise contact and care rights in respect of the boy. The boy wanted to maintain the relationship with the Applicant who he regarded as a father figure. Legal Aid SA ensured that the boy’s view was heard by the Court. The Court subsequently ordered that the Applicant could exercise parental rights and obligations and despite the lack of a biological or traditional legal link between the Applicant and the child, the Court found that it would not be in the best interest of the child if the relationship was severed.

Justice Mlambo, who serves as Judge President of the Gauteng Division of the High Court of South Africa, is on a mission to help expand legal aid throughout Africa – where there is a deficit of practicing lawyers and access to primary justice services is limited. “Where people can’t get access to justice, you find a backlog of cases, delays in the court system and high populations of remand prisoners,” he explains.

“On the other hand, people who cannot afford legal assistance, particularly those living in rural areas, are marginalised and social exclusion is perpetrated. Reliance on traditional dispute resolution systems is often the only means of securing justice.”

Justice Mlambo will be partnering with the International Development Law Organization (IDLO) to utilise his extensive experience in reforming and developing the legal aid system in South Africa. He also hopes to expand into the continent and engage other Justice Sector role-players to deepen legal aid assistance. He views the UN Principles and Guidelines on Access to Legal Aid in Criminal justice Systems as a timely catalyst in ensuring meaningful Legal Aid development in Africa.

“The provision of legal services for the poor is one of the greatest challenges to the legal profession across the world, and even more so in Africa and South Africa where there are enormous problems that require a large output of time and resources to ensure access to justice,” he says.

Earlier this month, in Dar es Salaam, Tanzania, African lawmakers and practitioners met under the auspices of IDLO to discuss how to strengthen the rule of law on the continent, recognising its pivotal role in meeting sustainable development goals.

“Access to justice has a direct impact on development because trust in institutions and institutional safeguards is the basis for political and social stability and economic investment and growth,” Justice Mlambo explains. “The provision of legal aid is woefully lacking in most countries, and particularly in places with high levels of poverty where many people are not even aware of their rights, let alone how to secure them.”

According to Justice Mlambo, three preconditions are necessary: the right to legal aid needs to be enshrined in the country’s legislation; there needs to be the political will to implement the legislation; and a commitment to legal aid in the form of budgetary allocations.

“In order to entrench the rule of law in support of development objectives, it is imperative that we improve access to justice across the continent. This will involve collaboration, the sharing of experiences on legal aid in different contexts and developing a set of indicators by which we Africans can measure progress on development goals related to the rule of law. We also need to engage with customary systems of justice, which are the main way people access justice in Africa.”

Justice Mlambo will be taking forward this proposal with IDLO as part of the organisation’s Africa Initiative.