THE 69th ORDINARY SESSION OF THE AFRICAN COMMISSION ON HUMAN AND PEOPLES’ RIGHTS, BANJUL, THE GAMBIA
15 -25 NOVEMBER 2021
ITEM 3: HUMAN RIGHTS SITUATION IN AFRICA
Statement by the Paralegal Advisory Service Institute together with Legal Empowerment Organizations on the Human Rights Situation in Africa: Justice is Key to Realizing the Africa We Want.
The Honourable Chairperson, Honourable Commissioners of the African Commission on Human and Peoples’ Rights (ACHPR), Excellencies, State delegates, representatives of National Human Rights Institutions, members of Civil Society Organizations and distinguished participants. The undersigned legal empowerment organisations welcome the opportunity to present this Statement on the state of access to justice in Africa and its implication on Aspiration 3 of the AU 2063 Agenda: The Africa We Want. This aspiration envisages among many other things, access to independent courts and judiciary that dispense and deliver justice without fear or favour, affordable and timely access to justice for all.
We, the undersigned, work towards the promotion of people-centred justice in Africa. We appreciate the significant institutional and normative progress made to date in promoting and protecting the right to access justice; more so through Aspiration 3 of Agenda 2063 which identifies justice as a key aspiration for member states. This aspiration correlates significantly with Sustainable Development Goal (SDG) 16.3 and amplifies the commitment to access to justice on the continental and the global level of the member states of the African Union who also belong to the United Nations.
However, we are concerned that despite solid frameworks and firm commitments made by member states to the African Union, the situation on the ground with respect to access to justice remains dismal. We are further concerned that according to the FIRST CONTINENTAL REPORT ON THE IMPLEMENTATION OF AGENDA 2063, a weak performance score of 16% was registered on the continent’s efforts towards realizing its aspiration for good governance, democracy, respect for human rights, justice and the rule of law, in light of the 2019 targets.
1. The entrenchment of human rights, justice and the rule of law can only occur where state financing is prioritized and allocated to strengthen institutions and fund programmes aimed at achieving Aspiration3. We take cognisance of member states such as Zambia, Sierra Leone, Tanzania, Kenya, South Africa, Rwanda, Nigeria among others that have enacted legislation that not only recognizes Community-based Paralegals as legal empowerment actors, but also see to it that the State provides adequate financing for the provision of legal aid services.
2. A significant amount of access to justice work is led by Community-based Paralegals who work directly with communities. They raise awareness of rights, laws, and policies which help clients to navigate legal and administrative processes in the pursuit of remedies as well as support citizen engagement in law and policy reform. In many African countries, there is a low ratio of advocates to the general population. In addition, most lawyers are too expensive, too specialized, or too far away to serve the millions in need of assistance. A partnership between Community-based Paralegals and advocates helps to resolve the imbalance between the supply of, and demand for, legal services.
3. The majority of Africans are still unable to access justice due to a myriad of factors i.e. socio-economic, legal and political. The cost for accessing formal justice is expensive. For example, in Kenya, a litigant requires at least USD 80 to access the courts.
4. The right to access justice regionally has been particularly impacted by the Covid-19 pandemic and continues to be threatened. Major COVID-related shocks dealt to justice systems, both formal and informal, have posed unique challenges and obstacles that threaten to widen Africa’s justice gap. Courts throughout member states of the African Union were temporarily closed down and or down scaled to contain the spread of the Coronavirus. Digitised justice was introduced through virtual court sessions and/or filing of court pleadings e.g. Kenya, Uganda, Tanzania, South Africa, Rwanda, Zambia, Malawi among others. The use of technology in access to justice has limited accessibility of courts due to the inadequate technical know-how and/or infrastructure. As a result, disputants are now increasingly relying on Community-based Justice Systems through the support of Community-based Paralegals which are more accessible, participatory, quicker and less costly.
5. Justice problems underlie all other violations e.g. conflict, extra judicial killings, slavery, child trafficking, unfair labour practice, evictions, sex and gender-based violence. A continent that does not prioritize access to people-centered justice subsequently undermines all other aspects of life including the social contract between the state and its citizenry. In addition, efforts to expand opportunities and reduce poverty and under-development in the continent can only be achieved with a legally empowered citizenry. Access to people-centered justice is associated with greater financial security for people, gender equality and better socio-economic opportunities, which are all necessary for fair and sustainable developmental outcomes.
6. Despite the significant work being carried out by Community-based Paralegals in Africa, their legal recognition and financing remains a challenge that hinders their effectiveness. The absence of national legislation in some jurisdictions means that Community-based Paralegals are not legitimised. Also, without recognition, state financing is not allocated for community-driven justice initiatives. In countries where community paralegals are recognised in law, the state hardly provides funding to support their work.
7. In Kenya, paralegals are formally recognized in the Legal Aid Act, 2016 which establishes the Legal Aid Fund to defray the expenses incurred by the representation of persons, and pay remuneration of legal aid providers or meet the expenses incurred by legal aid providers. The National Action Plan on Legal Aid 2017-2022 pushes for genuine government commitment in the form of a specific vote by the National Treasury on legal aid. Despite the enactment of the Legal Aid Act, the National Legal Aid Service is faced with human resource, fiscal, and administrative limitations. In addition, the Legal Aid Fund is yet to be operationalised. Thus, a majority of the indigent are unable to exercise their right of access to justice.
8. In Uganda, legal representation at the State’s expense is limited to the most serious criminal cases. The process for enacting legislation to guide legal aid at the national level stalled for 12 years before the Parliament of Uganda finally passed a motion for the first reading of the Legal Aid Bill in May 2021. At present, the Uganda Law Council only recognises paralegals who hold a Diploma in Law and are employed by Legal Aid Service Providers, leaving the great majority of paralegals undertaking legal empowerment work within communities unrecognised. The Uganda Law Council is currently developing Regulation to better guide the work and recognition of paralegals in the country. These Regulations, along with the National Legal Aid Bill need to be expedited.
9. The Legal Aid Act of Nigeria empowers the Legal Aid Council of Nigeria (LACON) to license and regulate persons who render paralegal services. Over recent years the Legal Aid Council of Nigeria has made public statements acknowledging the vital role played by Community-based Paralegals in closing the access to justice gap for the poor, and has endorsed the development of national standards and ethics. However, these statements fall far short of the level of action and resources urgently needed to tackle the scale of injustices faced by tens of millions of Nigerians on daily basis.
10. In Zambia, the 2021 Legal Aid Act recognises paralegals but restricts the legal aid fund to the Legal Aid Board and Legal Practitioners under judicare. This, therefore, means that Community-based Paralegals remain financially unsupported by the State despite them setting up desks in correctional facilities, police stations, subordinate courts and communities to provide legal aid and mediation services to clients.
11. In Sierra Leone, the Legal Aid Act recognises paralegals as integral players in the provision of legal aid services. This recognition, however, has a hollow ring to it. Lack of state funding and political will to provide sustained funding to train and deploy more paralegals across Sierra Leone remains a major problem.
12. In Malawi, paralegals are recognised in the Legal Aid Act of 2010 as Legal Aid Assistants. However, the government is yet to secure funding for the Legal Aid Bureau to support the work of Legal Aid Assistants and more broadly, legal aid. Bilateral donors have offered to establish a legal aid basket fund combining both donor and government support. However, the stance of the Malawian government is that it will not hire staff on salary provided by donors because they cannot ensure that the position can be funded sustainably. Despite advocacy on the part of civil society, it has been difficult to convince the government to take on responsibility for funding the legal aid scheme. Evidence does not show that the government funds any paralegal work in any issues or sectors.
13. In Zimbabwe, the Legal Aid Directorate which is mandated to provide legal assistance is under-resourced and is unable to provide comprehensive legal assistance to marginalised and vulnerable groups. Its work is being complemented by civil society organisations (CSOs) who provide legal assistance through lawyers and paralegals. However, these organisations rely on donor funding, and they are unable to cater for all groups and individuals. Currently, the country does not recognise paralegals in its laws and policies. The civil society organisations are engaging the state and other stakeholders such as the Law Society of Zimbabwe with the objective of having paralegals recognised.
14. In South Africa, the Legal Practice Act only makes provision for the newly established Legal Practice Council to investigate the model for regulating paralegals. Despite being recognised by other structures such as the South African Human Rights Commission, The Legal Practice Council and Legal Aid South Africa, Community-based Paralegals in South Africa have been waiting since the dawn of democracy for recognition that is premised on ensuring their continued existence and functionality that is financially and materially supported. The Ministry of Justice has released a draft policy paper. Even in the draft policy, this process is also running parallel with the investigation that was conducted by the Legal Practice Council with no proper indication on which process would ultimately result in a recognition framework for Community-based Advice Offices in the country which is an integral part of the access to justice ecosystem.
We call on the African Union Commission to urge African states to:
1. Explicitly include a target towards promoting people-centred justice in the next 10 year plan of the AU 2063 Agenda under Aspiration 3. This can also include the development of model standards in the functions and roles of Community-based Paralegals in Africa. The first 10-year plan of the AU 2063 Agenda comes to an end in 2023;
2. Live up to their commitment in accordance with the Sustainable Development Goal 16.3 by supporting initiatives that deliver appropriate, affordable and accessible justice by all;
3. Hasten the development and implementation of legal aid laws that recognise and finance the work of Community-based Paralegals where absent. States must strengthen recognition and support for the role that community paralegals play in ensuring access to justice through national and regional legislations;
4. Strengthen partnerships between governments, civil society and legal sector actors (bar associations, judiciary, legal education providers, mediation/ADR/AJS systems) with regard to legal empowerment in Africa. This also includes improved engagement through multi-stakeholder initiatives such as the Open Government Partnership;
5. Governments should demonstrate their political will for legal empowerment of their poor and vulnerable citizens by committing resources that will fund sustainable legal empowerment models that recognise the central role of paralegals in delivering affordable and timely access to justice for all. However, government funding should not affect the independence and autonomy of legal empowerment organization; and
6. Increase state financing to strengthen institutions and fund programmes aimed at promoting access to justice. States should scale up investment in meaningful justice and rights awareness to ensure that people adequately understand their rights and the remedies available to them within the prevailing legal and justice systems in order to ensure they can solve their most pressing justice problems.
- Africa Centre of Excellence for Access to Justice
- Legal Resources Foundation- Zimbabwe
- Justice For All
- Paralegal Alliance Network – Zambia
- Paralegal Services Institute- Malawi
- Kituo cha Sheria – Legal Advice Centre- Kenya
- Legal Empowerment Network
- Community Advice Offices – South Africa
- Pathfinders for Peaceful, Just and Inclusive Societies
- International Commission of Jurists- Kenyan Section
- Legal Aid Services Providers Network – Uganda
- Uganda Association of Women Lawyers’- Uganda
- Legal Resources Foundation- Kenya.
- Isa Wali Empowerment Initiative- Nigeria
- Lady Ellen Women’s Foundation – Sierra Leone
- Justice and Empowerment Initiatives- Nigeria
- NABE Kanfiegue, Union Syndicale des Agriculteurs (Togo)
- Ernest Kreutzer, Zaikomena (Madagascar)
- Themba Simelane, Iwundlu Community Development Centre (South Africa)
- Ahmed Isse, Manaal Relief Foundation (Somalia)
- Douglas Musebenzi, (Afghanistan)
- Tabaruka Arans, Integrated Rural Community Empowerment (IRUCE), (Uganda)
- Robyn Beere, Equal Education Law Centre (South Africa)
- Joseph Ansumana, Network Movement for Justice and Development (Sierra Leone)
- Rogers Ochieng, SCODA DEVELOPMENT GROUP (Kenya)
- Bongiwe Ndondo, HLANGANISA INSTITUTE FOR DEVELOPMENT SOUTHERN AFRICA (South Africa)
- Sheila Matsondota, Community Advice Offices South Africa (South Africa)
- Bonisile Ngcobo (South Africa)
- Jannie Hendricks, Moorreesburg Advice & Development Initiative (South Africa)
- Caryn Dasah, Hope Advocates Africa (Cameroon)
- John Kamma, Citizens Bureau for Development and Productivity (Liberia)
- Messan KOUNAGBE, Justice And Prospérité For All (Benin)
- Faiza Davids, Nuwekloof Rural Development/Riebeek Legacy (South Africa)
- Sonwabo Sanga, Joe Gqabi Legal Advice Centre (South Africa)
- Charity Kilonzi (Kenya)
- Kenya ratio is 1:3500, South Africa 1:2273, Nigeria 1:2857, Ghana 1: 7826, Zimbabwe 1:10,000, Tanzania 1: 63830, Mozambique 1:80,00 (McQuoid-Mason D 2013) Grassroots Justice in a Pandemic: Ensuring a Just Response and Recovery”.