I wrote This brief article for the internal newsletter of the EHRC; it never got published due to delays in the coming out of the newsletter. I have planned to update it with additional information on recent events such as the new mandate of the MoJ to assist ‘women and children’ in civil cases. The intensified criminal legal aid activities of the Public Defenders Office under the Federal Supreme Court should also be mentioned. Finally, one should be wary of the current status of CSO/NGO legal aid programs in light of the post-Charities and Societies Proclamation challenges. As far as I can tell, the only ones that have survived are those supported through the EHRC funding initiative. Anyway, I believe the original version could serve as a starting point until I (or someone else) can develop a revised version. So, here it is.
2. Meaning and Recognition as a Right
The right of access to justice generally guarantees that every person has access to an independent and impartial process and the opportunity to receive a fair and just trial when that individual’s liberty or property is at stake. However, access to justice does not always involve judicial recourse but the availability of accessible, affordable, timely and effective means of redress or remedies.
Access to Justice is recognized under the international human rights instruments Ethiopia has ratified including: the Charter of the United Nations, the Universal Declaration of Human Rights (UDHR), the International Covenant on Economic, Social and Cultural Rights (CESCR), the International Covenant on Civil and Political Rights (ICCPR), the United Nations Convention on the Rights of the Child (UNCRC) and the African Charter on the Rights and Welfare of the Child (ACRWC). For instance, articles 7 and 8 of the UDHR and article 14 of the ICCPR state that everyone is equal before the law and has the right to effective remedy against violations of fundamental rights.
Access to justice is also recognized as a right in the FDRE Constitution. At the outset, the rights and standards recognized in these international and regional instruments become part of Ethiopian law upon ratification. Since Ethiopia has ratified all of the above listed international human rights agreements, the rights recognized therein including access to justice have become part of the domestic law. Moreover, Article 37(1) of the Constitution expressly guarantees access to justice to all citizens. This constitutional provision reads:
“Everyone has the right to bring a justiciable matter to, and to obtain a decision or judgment by, a court of law or any other competent body with judicial power”.
3. Barriers to Access to Justice
Though the international and constitutional recognition of the substance of the right is a step in the right direction, it does not guarantee the realization of access to justice. Progress towards this ultimate end requires measures designed to address factors acting as barriers to meaningful utilization of the right. Generally, four fundamental barriers to access to justice are recognized. These are: lack of legal identity, ignorance of legal rights, unavailability of legal services, and unjust and unaccountable legal institutions. May be the most serious barriers to access to justice for the poor is the unavailability, or expense, of obtaining legal representation or other forms of legal assistance. Even individuals not formally excluded from the legal system, and generally aware of their legal rights, may be unable to rely on the legal system because they do not have access to legal services.
4. Legislative Measures to Improve Access to Legal Services
A number of legislative measures have been suggested on how governments could improve access to legal services. A major approach in this respect is involving the bar and the government to increase the amount of legal assistance provided by lawyers to the poor or other disempowered groups. Many governments provide rights to legal aid and some countries have professional conduct rules for pro bono provision of legal services. Other forms of legal assistance provided by non-lawyers include work done by law students in law school legal aid clinics or using pre-bar admission training or apprenticeship programs to provide legal services to the poor. For example, in Nigeria, all graduating law students are required to spend one year in public service. Another approach is government financial and institutional support to legal aid societies, public interest law firms, and other NGOs that provide basic legal services to the poor.
In Ethiopia, the Ministry of Justice is the organ entrusted with the power of registration of federal advocates, issuance, renewal and revocation of licenses with the involvement of the Ethiopian Bar Association (EBA). The law provides for three types of federal advocates licenses that confer qualifications upon advocates to appear before the different levels of federal courts, namely, federal first instance court advocacy license, federal courts advocacy license, and federal court special advocacy license. Of the three types of licenses the special advocacy license, which has the least rigorous qualification criteria, is issued to lawyers who seek to defend the general interests and rights of the society without receiving any payment from their clients. For instance, applicants for this license are exempted from such requirements as furnishing of evidence of professional indemnity insurance and sitting for the qualifying examination.
Furthermore, advocates licensed to practice law in the federal courts are required by law to render a minimum of fifty hours legal service a year free of charge or upon minimal payment (pro bono publico). The beneficiaries of such services are: persons who can not afford to pay; charity organizations, civic organizations, community institutions; persons for whom a court requests legal services; and, committees and institutions that work for improving the law, the legal profession and the legal system.0
5. Highlights of Available Legal Aid Services
The provision of legal aid services in Ethiopia appears to take three distinct forms. These are: mandatory pro bono services by licensed advocates, legal aid programmes run by professional associations or NGOs, and legal aid clinics established by law faculties within public universities. (Note: 1. Criminal legal aid services made available to suspects/accused persons and victims within the justice system including the PDO, the VAWC Investigation and Prosecution Center of the MoJ and other channels have not been covered here. 2. The services availed by NGOs refer to the time before the coming into effect of the Charities and Societies Proclamation.)
5.1. Mandatory Pro Bono Services
The typical legal aid services stipulated by the Federal Courts Advocates Licensing and Registration Proclamation and the Federal Court Advocates’ Code of Conduct Regulations involves pro bono obligations imposed on licensed advocates. Presumably, these obligations are fulfilled through mechanisms to be put in place by the Ministry of Justice in its capacity as the licensing body. These mechanisms, unfortunately, do not appear to be in place in an institutionalized form. Instead, the only visible manifestation of for the existence of mandatory pro bono services is found in instances of court appointment of advocates in specific cases involving serious offences. Thus, despite the strong legal basis, it is difficult to conclude that there is a meaningful mandatory legal aid system in Ethiopia.
Setting aside issues of implementation, the legal aid service arrangements already in place can potentially go a long way in improving access to justice for the most disadvantaged especially if replicated at the regional level. The mandatory pro bono service arrangement is particularly important since it lays the basis for access to legal services as a right as opposed to the voluntary model making the service a privilege granted at the discretion of the provider. It also recognizes that practicing law, even in private capacity, involves public service – the dispensation of justice. Finally, with the establishment of new law faculties in public as well as private universities, the number of legal professionals whose services could be harnessed for the realization of the right to access to justice is expected to increase in leaps and bounds.
5.2. Voluntary Services by Legal Professional Associations and NGOs
Until very recently, the only legal professional association in Ethiopia was the Ethiopian Bar Association (EBA). The national association has since been joined by regional associations of lawyers, including advisors, prosecutors and judges, as well as the Alumni Association of Law Faculty of Addis Ababa University (AALF-AAU). Some of the regional associations, namely Biruh (Diredawa), Tesfa (Hwassa), and Selam (Harrar), have reportedly been engaged in the provision of legal aid services in their respective towns. More extensive legal aid (pro bono) services are provided by the Ethiopian Bar Association and AALF-AAU in the premises of the Federal High Court/Federal First Instance Court Lideta and Arada branches as well as a third EBA legal aid center in Addis Ababa. These centers, staffed by law school students and practicing lawyers, provide legal aid services to those who cannot afford professional legal services.
Legal aid services are also provided by NGOs through voluntary or paid staff as well as through paralegals. While there are numerous such organizations operating at local, regional and national levels, the more visible among these include:
– Legal advice, counseling and representation provided by the Children’s Legal Protection Center (CLPC) of the African Child Policy Forum (APPF) to children in conflict with the law and child victims of crime in Addis Ababa as well as similar services to the firs group in eight regional towns;
– Legal advice, counseling and representation provided by the Ethiopian Women Lawyers Association (EWLA) to victims of GBV/VAWC in criminal and civil cases in Addis Ababa, Adama, Diredawa, Hawassa, Gambella, Assosa, and Bahirdar;
– Legal services provided by Action of Professionals Association for the People (APAP) in Addis Ababa, Bahir Dar, Hawassa, Diredawa, Jimma, Harar, Adama, Assela, and Debreberhan through legal and human rights resource centers three joint projects with regional legal professionals’ associations and two legal aid centers and,
– Counseling, medical and legal aid services made available by Association for Nation-wide Action and Protection against Child Abuse and Neglect (ANPPCAN) for children traumatized by abuse, exploitation and neglect in Addis Ababa, North Wollo and North Gondar Zones of the Amhara Region, and North Shoa Zone of Oromia Region.
In November 2007, organizations that provide free legal aid to disadvantaged groups have launched a network. A directory of complementary service providers and a Directory of Legal Aid Providers in Ethiopia have also been developed.
Since the legal duty to provide pro bono services are only imposed on individual advocates licensed to practice in Federal Courts, the services provided by the legal professional associations and NGOs, identified as moral duty bearers in human rights jargon, are made available on voluntary basis. The provision of legal aid services by moral duty bearers poses a number of conceptual, strategic and practical problems. At the outset, access to justice is a right recognized in the international and constitutional human rights framework leading to an entitlement that can be claimed rather than a privilege to be granted by the relevant duty bearer. Moreover, voluntary legal service models, which depend almost always on the willingness and financial support of individuals and institutions, are often limited in scope and cannot address the existing need. For instance, the following table shows the number of people having accessed some of the most extensive legal aid interventions within a year including professional, paralegal and community level services.
Table 1: Beneficiaries of legal aid activity of selected NGOs in 2007
|
Organization |
Major Beneficiaries |
No. of Beneficiaries |
|
APAP |
The Poor |
7,226 |
|
ANPPCAN |
Child victims of abuse and neglect |
663 |
|
ACPF/CLPC |
Children deprived of their liberty and child victims of abuse |
4,123 |
|
EWLA |
Women and girl victims of GBV/VAWG |
18,013 |
Sources: Annual Reports of Organizations for 2007
As could be seen from the above table, the legal aid programmes of even the most active NGOs could not benefit more than a few thousand people. Taking the highest number of beneficiaries reported by EWLA, consider the following facts on the incidence of GBV/VAWG in Ethiopia:
– Three in four Ethiopian women are victims of FGM while 66% are married by age 18;
– Sexual outrage constituted 70.85%, 76.15%, 71.3%, and 77.91% of all reported crimes between September 1999 and 2003 while rape constituted 38.48%, 39.12%, 36.63%, and 43.82%; and,
– The prevalence of physical and sexual violence against women by intimate partner (domestic violence) in Ethiopia reportedly stands at 71%.
In short, the voluntary services do not address even a single percentage of the existing gap in legal services. In addition, despite utilization of volunteers and paralegals to enhance cost effectiveness, the legal service provision initiatives do not appear to be sustainable in the absence of significant financial support from donors. Thus, the direct service provision by moral duty bearers could at best be considered a short term strategy to address immediate gaps and pressing needs until the legal duty bearers are able to fulfill their duty.
5.3. Legal Aid Clinics within Legal Education Institutions
For almost four decades, the Addis Ababa University Faculty of Law was the only tertiary institution providing professional legal education. Moreover, despite the existence of a human rights center established to provide legal aid services among other objectives, the AAU Law Faculty did not engage in or facilitate pro bono services. The role of legal education institutions in enhancing access to justice through legal aid clinics only received significant attention after the establishment of new public universities since 1999.
In recent years, law faculties of public universities, notably the law faculties at the Mekelle and Bahirdar universities, have established legal clinics wherein students provide free legal services to communities under close supervision by academic staff. Supported by ActionAid Ethiopia, the Mekelle University Law Faculty (MULF) has established a legal aid center in Mekelle to provide free legal services such as counseling, writing legal documents, pleading, representing the clients in courts, etc to poor and vulnerable groups through students and staff of the Law Faculty. During the first two years of its establishment the center provided legal services for over 3,000 poor and vulnerable people including women, children, elders and persons in custody. In addition, the centre provided legal education to the public especially on the rights of excluded people i.e. women, children, PLWHA, people with disabilities, the aged and prisoners. Similarly, a Legal Aid and Human Rights center has been established in Bahirdar through collaboration between the Bahirdar University Law Faculty and ActionAid Ethiopia. (Note: More than 15 public universities have initiated and expanded legal aid clinics with the support of the EHRC in the past year or so)
Though currently limited in scope, legal clinics under law faculties have significant advantages in terms of enhancing access to legal services. Most obviously, this is a more cost effective approach since the services are provided as part of the educational process. Moreover, since clinical legal education is among the key areas of reform efforts professional legal education, legal aid centers are expected to become an integral part of the education system in all public universities with law faculties.
6. Conclusions
Access to justice is a right recognized in the FDRE Constitution. Such constitutional recognition has been translated into two forms of legal aid service provision in the federal laws relating to the licensing and regulation of the legal profession. The first is through a federal court special advocacy license specifically designed to provide legal aid services for those who cannot afford to pay for legal services. Similar voluntary services could also be provided by any licensed advocate without a special license. The second, which is mandatory, imposes a legal duty on federal advocates to allocate a minimum number of hours for legal aid services.
Setting aside issues of implementation, the legal aid service arrangements already in place can potentially go a long way in improving access to justice for the most disadvantaged especially if replicated at the regional level. The mandatory pro bono service arrangement is particularly important since it lays the basis for access to legal services as a right as opposed to the voluntary model making the service a privilege granted at the discretion of the provider. It also recognizes that practicing law, even in private capacity, involves public service – the dispensation of justice.
There are, however, some alternative and supplementary measures that do not appear to have been sufficiently utilized within the existing legal aid system in terms of utilizing existing capacity to enhance access to justice for the poor and most disadvantaged. Notable among these are legal recognition of legal aid clinics in law schools, , and the potential contributions of paralegals and professionals other than lawyers.
In relation to legal aid clinics in academic institutions, law faculties of public universities have established legal clinics wherein students provide free legal services to communities under close supervision by academic staff. Moreover, since clinical legal education is among the key areas of reform efforts professional legal education, legal aid centers are expected to become an integral part of the education system in all public universities with law faculties. In this context, legal recognition and a framework for the operation of legal aid clinics may be necessary.
A paralegal is a person who provides legal and related services to members of his/her community without passing through the process of legal education offered by the formal education system. Examples of paralegal service providers within the Ethiopian legal system include social court judges, family arbitrators, and local elders engaged in arbitration related activities. The advantages of paralegals in enhancing access to justice arise from a number of considerations. One such consideration is that the legal problems the poorest sections of society usually have do not call for professional legal expertise. In the words of the Committee on Economic, Social and Cultural Rights, administrative remedies are more often than not adequate to realize access to justice. In this context, non-lawyers could be effectively engaged to provide relevant assistance with modest training and appropriate incentives. Examples of such services include support staff in local court systems assisting the poor complete forms and fulfill processing requirements; or teachers and educated members of communities helping with reading and interpreting legal documents. Moreover, being able to work at the grassroots level paralegals are in a better position than lawyers to actively engage the poor rather than simply serve their legal needs. For instance, programs employing local residents to work as paralegals serve not only as efficient providers of legal assistance, but their presence in the community creates a local base of legal knowledge and experience that can expand within those communities.
Undeniably, services provided by community level paralegals could not replace professional lawyers. However, they are likely to be more effective in addressing the needs of communities due to the nature of the services in demand and understanding of local circumstances. The importance of community level paralegals is particularly irreplaceable in terms of creating a body of knowledge, legal experience, and capacity within communities and the institutions that serve them. Thus, some form of recognition to paralegal services within the existing legal aid system may be a positive step towards realizing access to justice for the disadvantaged.