CHAPTER ONE
INTRODUCTION
Background
Social vulnerability and poverty involve the deprivation of one or more elementary capabilities essential for individuals to achieve minimum functioning within their society and to live the lives they value (Thomas, 2010). One of such elementary capabilities is access to justice, a basic principle of the rule of law and a fundamental human and democratic right of every individual irrespective of their background. The importance of providing all people with formal legal recognition has long been recognized. Undeniably, it was declared by the Universal Declaration of Human Rights that the right to a fair trial belongs to everyone. In 2012, Member States of the United Nations clearly recognized the importance of legal aid in the context of increasing access to justice.
Access to social justice has been a challenge for the poor and marginalized because of the cost involved in seeking legal services. This, according to UNDP (2016) has resulted in the recognition of the need for legal aid in improving access to justice for marginalized, excluded and impoverished groups. In other words, it is reasonable that legal aid schemes are established to reduce social injustice in societies. Legal aid is a free or minimum legal service provided for the socially and economically disadvantaged, who are unable to afford the full cost of legal service but require it to obtain equal access to justice. It is a medium through which people can claim their basic human rights within the justice system and get their criminal and civil legal issues resolved (UNDP, 2016). There are various legal aid service providers such as Government, civil society organizations, international donors, universities, law clinics, legal professional associations, paralegals and other informal justice mechanisms (UNDOC, 2011). There are also state-sanctioned legal aid services such as legal advice, legal
counselling, legal representation, access to information about legal rights and responsibilities and other legal advocacy services that should be easily accessible to all (Atuguba et al., 2006).
Besides Ghana, some African countries have established legal aid schemes, including South Africa, Nigeria and Cameroun, to name a few. South Africa has a national legal aid scheme and a legal aid board in place including mechanisms for delivering legal aid using public defenders, paralegals, private lawyers, and pro bono lawyers. Nigeria has the formal legal aid scheme provided by the Legal Aid Council and other state and non-state delivery mechanisms for legal aid. Cameroun has a Legal Aid Commission exclusively responsible for the approval of legal aid applications, but citizens are not able to access legal services because at the sub national levels, they have few high court and magistrate courts and also, the majority of the population are rural dwellers. In Sierra Leone, due to shortage of lawyers, community-based paralegals are providing basic legal services (Penal Reform International, 2007).
On the other hand, research findings on delivery of legal aid in other countries prove that Governments have shown little commitment in providing legal aid to the poor and vulnerable. In Kenya, the legal aid policy is yet to be adopted by the State. Zanzibar has no legal aid law nor regulation. The same experience is encountered in mainland Tanzania where it is NGOs and paralegals that are providing legal aid to the indigents. Uganda has a state legal aid initiative, but there is lack of political will to allocate funds to legal aid. Although Sudan’s legal aid has been established, it is unknown to people in rural areas and small urban communities because their personnel are concentrated in major cities (The Danish Institute for Human Rights, 2011).
The challenges in providing legal aid in Africa are mainly a result of the unavailability of lawyers to provide legal services. Pro-bono clients do not receive quality of service as paying clients while lawyers are not willing to take on pro bono cases. Various legal aid schemes are unable to accommodate increase in cases due to inadequate staffing and administrative structures; lack of proper accounting systems for claims and quick disbursement of funds; lack of interest of law interns to take up paralegal work, budget constraints, among others (Penal Reform International, 2007). Courts are situated far from the people and the high cost of accessing legal aid services and lawyer unavailability has made legal processes very cumbersome and distasteful to Africans especially the poor (Penal Reform Institute, 2007).
In Ghana, legal aid provisions are highlighted in the 1992 Constitution and the Ghana Shared Growth Development Agenda. Article 294 (2) of the Constitution states that ‘Parliament shall regulate the grant of legal aid’ and (4) that ‘legal aid shall consist of representation by a lawyer, including all such assistance as is given by a lawyer (Republic of Ghana, 1996). The Ghana Shared Growth Development Agenda 2014 – 2017, outlines policy interventions to enhance the legal aid system such as making some services free through the Alternative Dispute Resolution and promoting access to rights and entitlements (GSGDA, 2014: 170).
A number of legal aid institutions have been established in Ghana since the adoption of the 1992 Constitution to ensure the delivery of legal aid service to its citizens. One of these is the National Legal Aid Scheme, set up as a public service organization to offer legal aid to socially and financially disadvantaged persons. It offers them access to both lawyer and non- lawyer solutions in civil and criminal matters. It was enacted by Parliament, Legal Aid Scheme Act 1997 (Act 542), and has been in operation for more than 20 years.
There are also non-governmental organizations, faith-based organizations and charities established to offer legal aid to complement the national legal aid scheme in Ghana. One such non-state institution is the International Federation of Women Lawyers (FIDA). FIDA Ghana is a major advocate for the poor and vulnerable particularly women and children. Its legal aid started over 30 years ago in January 1985 and they offer legal assistance to this target group and recently men. FIDA largely deals with civil cases.
Problem Statement
Fundamentally, every legal aid scheme draws mainly on two fundamental principles, efficiency and equity. However, discussions of equity are often distanced from the practical world of development policy, yet, equity in the assessment of legal aid services is essential for meaningful access to social justice (Ness & Strong, 2014).
