Address by the Deputy Minister of Justice and Constitutional Development of the Republic of South Africa, the Hon John Jeffery, MP, on the Implementation of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice System: Follow up on the Johannesburg Declaration, at the 13th UN Congress on Crime Prevention and Criminal Justice, Doha, Qatar
Mr. Jean-Luc Lemahiu, Director of the Division for Policy Analysis and Public Affairs
Esteemed delegates
Ladies and gentlemen
Legal aid is a fundamental human right. Without adequate legal aid there can be no fair trial, no functioning criminal justice system and no respect for the rule of law.
Without adequate legal aid an accused person can be unlawfully arrested and detained, coerced into pleading or plea-bargaining, they can incriminate themselves, be wrongfully convicted and face a plethora of other rights’ violations.
Recognising that criminal legal aid – or indigent defense – is an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law, the United Nations Commission on Crime Prevention and Criminal Justice adopted the first international Principles and Guidelines on indigent defense at its 21st session.
The United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems not only affirm the importance of legal aid at all stages of the criminal justice system, but also extend the scope of coverage to include vulnerable groups such as women and children, as well as victims of crime and witnesses to crime.
South Africa, together with the UNODC and other partners, hosted an international conference in June 2014 in Johannesburg to promote an understanding of and implementation of the UN Principles and Guidelines.
The Conference brought together over 250 participants from 67 countries who are legal aid policy makers and practitioners including Ministries of Justice, the judiciary, bar associations, as well as legal aid lawyers, community based paralegals, civil society members, and experts to discuss common challenges in providing access to effective legal aid services in criminal justice systems and to propose practical and achievable solutions.
What became very evident at the conference was that while many countries guarantee the right to legal representation to persons accused of crimes in their domestic laws and many have ratified various regional and international instruments - such as the African Charter on Human and People’s Rights, the International Covenant on Civil and Political Rights and the European Convention on Human Rights, which guarantee the right to free representation for persons accused of crimes - the harsh reality is that many countries do not always have the necessary resources or capacity to provide a comprehensive national legal aid system.
Variance exists in operational definitions, scope of coverage and delivery of legal aid services across the world.
In addition, it is sadly ironic that, at a time where there is the greatest need for legal aid, we also face the greatest global challenges of ensuring access to quality criminal legal aid services for the poor. These challenges exist both in developing and developed countries and regions.
The UN Principles and Guidelines provide a framework which guides member states on how legal aid systems in criminal justice systems should be incorporated into their domestic legal framework. They are drawn from international standards and recognised good practices and outline the specific elements required for an effective and sustainable national legal aid system, pursuant to the Economic and Social Council Resolution 2007/24, entitled “International cooperation for the improvement of access to legal aid in criminal justice systems, particularly in Africa.”
The adoption of the Principles and Guidelines provides a useful framework for policymakers and practitioners to develop context-specific approaches to institutional legal aid reforms and to ensure more effective international assistance programming.
States are given clear guidance on how to fulfil their obligations to provide legal aid for suspects, defendants, witnesses and victims involved in the criminal justice system, and minimum standards are set for implementation. For example, legal aid providers should be independent of State interference and legal aid should be accessible, effective, sustainable and credible. Legal aid schemes should use legal aid bodies in both the public and the private sector and include qualified lawyers, aspiring lawyers, law students and paralegals.
The Guidelines make it clear that legal aid includes information and education, so that all members of the community, not just those facing criminal proceedings can be made aware of and access their rights. They also recognise the particular difficulties faced by women in seeking access to justice and the need for a gender perspective to be applied to the provision of legal aid.
The Principles and Guidelines are primarily concerned with the right to legal aid, as distinct from the right to legal assistance, as recognised in international law. UNODC has also produced an Early Access Handbook to assist states when implementing the UN Principles and Guidelines.
Three days of deliberations at the conference produced the Johannesburg Declaration, which was adopted at the closure of the conference, with the request that it be publicised widely to legal aid networks and forwarded to national governments, the UN Human Rights Council, regional commissions, the Thirteenth United Nations Congress on Crime Prevention and Criminal Justice to be held in Doha in April, 2015, and shared in discussions on the post-2015 sustainable development agenda on eradicating extreme poverty and inequality worldwide.
The Johannesburg Declaration reaffirms that “legal aid is an essential element of fair, humane and efficient criminal justice system that is based on the Rule of Law and that it is a foundation for the enjoyment of other rights including the right to a fair trial” and should be guaranteed by the State as set out in the UN Principles and Guidelines.
Without access to effective legal representation millions of poor, vulnerable, and marginalised persons face the risk of arbitrary, extended, or illegal pretrial detention, as well as torture, coerced confessions, wrongful convictions, social stigma, detrimental impacts on health and livelihood and other abuses. In this regard, these groups also have many unmet legal needs in civil matters, which need to be addressed.
The Declaration highlights the fact that in post-conflict and developing countries people who are provided free legal aid and representation are less apt to resort to non-lawful self-help alternatives and thereby, avoid situations which erode security and lead to conflict.
The fundamental question is how do states respond to the 7 Action Points of the Declaration. And is there a way in which we can assist states to meet the requirements of the Action Points?
Through its 7 Action Points, the Declaration calls on all countries to continue funding meaningful legal aid services by encouraging legal aid systems to utilise lawyers and also paralegals, civil society organisations, university legal aid clinics and to develop relationships with each other to facilitate access to legal aid for poor, marginalised and vulnerable groups.
It calls upon the international community including international and regional civil society organisations, and the UN agencies to support the UN Principles and Guidelines by means of financial and technical assistance, particularly in post conflict and developing countries.
The Declaration also makes provision for an action plan to establish international and regional cooperative mechanisms, legal aid authorities and defence services and calls on all states to collate data relating to the provision of legal aid at state expense in criminal matters.
South Africa has come a long way with regards to the provision of legal aid.
Our country’s history is well-known. Under the apartheid regime, many of us were charged with crimes, mostly political crimes, and left to face a repressive, unjust and inhumane justice system. Most South Africans were denied access to courts or legal services during apartheid. The apartheid government recognised the need for civil legal aid and therefore established the Legal Aid Board in 1969. However, legal services and the legal aid offered to the majority of our people were either non-existing or inadequate. For example, from 1975–1976, only 810 applications were approved by Legal Aid for legal aid in criminal cases.
If one imagines the large number of criminal cases where, predominantly Black people, but also others, faced charges under draconian apartheid laws it is clear that Legal Aid was simply unable to deliver. In 1992, a mere two years before the dawn of our democracy, a staggering 150 890 convicted persons were sentenced to imprisonment without any legal representation.
At the dawn of democracy in 1994, we inherited a legal aid dispensation that was unable to meet the growing demands of our new democracy; a democracy with a Constitution which now guaranteed certain categories of persons legal representation by the state and at state expense.
In order to give effect to the constitutional obligation to provide legal aid, South Africa established what is today known as Legal Aid South Africa, which is an independent statutory body to render legal aid or make legal aid available to indigent persons within its financial means and to provide legal representation at State expense as set out in the Constitution.
The provision of legal aid includes advice, representation, and referral to appropriate agencies, mediation and educational awareness.
Legal Aid South Africa has done sterling work in advancing access to justice for indigent persons in need of legal representation, though there are still challenges in the sense that demand outweighs supply and Legal Aid South Africa is unable to assist all the persons currently in need of their services.
Of significant importance has been the role South Africa and Legal Aid South Africa has been playing in promoting legal aid as an essential part of access to justice. Legal Aid South Africa has been recognised internationally as having developed a sustainable legal aid system which has been studied and learnt from by many countries intending to develop their legal aid systems.
Legal Aid SA extends legal assistance to all indigent accused persons who are charged with offences in cases where substantial injustice may otherwise occur if the accused person were unrepresented. The assistance is available throughout the criminal process, including appeals. In the High Courts, Regional Courts and District Courts, legal aid is routinely granted to indigent applicants.
In 2014/2015, there were 394,244 new criminal cases. These criminal cases accounted for 88% of all new cases and the other 12% were civil cases. Legal Aid SA is the primary source of delivery of access to justice, delivering a total of 448,333 new legal matters during the 2014/2015 financial year. It employs full time legal staff at 64 Justice Centres, 13 High Court Units and 64 Satellite Offices country-wide. This is the primary vehicle used by Legal Aid SA for the delivery of legal services, as it is found to be the most efficient and economical.
Furthermore, Legal Aid SA also makes use of judicare, a system whereby lawyers in private practice are instructed to perform work on behalf of Legal Aid SA in return for a set fee. Judicare is utilised in situations where there is a conflict of interest, where certain specialist skills are needed, as well as to address capacity constraints.
Legal Aid South Africa has been utilising the services of suitably qualified paralegals as the first port of call for new clients to determine whether they have a justiciable case or just require advice. Secondly, in rural areas paralegals have been effectively utilised because they enjoy a trust relationship with communities who would otherwise be reluctant to speak to strangers. In addition Legal Aid South Africa has entered to into co-operation agreements with University Law Clinics and Non-governmental organisations to extend legal aid services and its national footprint.
A challenge identified by the participants at the Johannesburg Conference was the need to make legal aid available at the earliest opportunity, in other words from the time of arrest, prior to the actual hearing, to ensure that the client’s rights are not infringed. Without proper legal representation at the critical stage of detention and arrest, a suspect may be pressurised into making confessions that could be used at the trial.
In this regard, Legal Aid South Africa has established an advice line with a toll free number (0800 110 110) which is displayed at all police stations and courts to allow clients to make a free call for legal advice. In 2014/15, 42,886 persons received advice from the Legal Aid SA advice line.
It is important that there is knowledge sharing and international co-operation and technical assistance on the issue of the provision of Legal Aid. Legal Aid South Africa regularly hosts legal aid delegations from a number of countries who have either developed or are in the process of developing a system of legal aid in criminal matters at state expense to share with them our systems and at the same time to learn from each other. Legal Aid South Africa has also been asked to send its representatives as experts to many international conferences and workshops.
Legal Aid South Africa has put in place a national operations team to collate useful data on the number of persons assisted, the nature of the charges, the outcome of each case, the turnaround time in completing a case as well as a record of all cases taken on appeal. This information is shared with the Department of Correctional Services and the Department of Justice and the National Prosecuting Authority to identify challenges which could unnecessarily delay cases, resulting in long remand dates and to a clogged court role.
State funding for legal aid is crucial. The budget of South Africa’s Legal Aid Board, as it was called previously, in 1993/4 was R62 million. Over the years government has incrementally allocated more and more funding to improve access to Legal Aid. It currently (2014/15) stands at R 1,6 billion (about US $135 million.)
This reinforces the South African Governments ongoing commitment to a human rights based approach to our fledgling democracy. Even during the worldwide recession, Legal Aid South Africa was able to meet its constitutional obligation to make justice accessible to all with continued funding from government on the same level prior to the onset of the recession. This is remarkable given the fact that some developed countries have cut their legal aid budgets.
We all have to cut our coat according to our cloth – budget constraints are a reality we have to live with. But the one outcome of budget limitations is that it forces one to follow an innovative approach: as mentioned, Legal Aid SA provides advice through their Legal Aid Advice Line, which offers legal advice in 5 official languages. In looking to increase access to justice, within a limited budget, Legal Aid SA is developing self-help packages on common legal matters, which will be made available to the public on their website.
Internationally speaking, there are many challenges to the provision of legal aid. One of South Africa’s experts on the provision of legal aid, Prof David McQuoid-Mason, rightly says that there are still many challenges to accessibility of legal aid in criminal justice systems, particularly in developing countries with few lawyers. And, he argues, this seems to be where legal drafters and legislators “fail to think outside the box.”
One of the main challenges he identifies is what he terms “big city syndrome” – where the judiciary and lawyers in developing countries often view the provision of legal aid as if they are practicing in a ‘big city’ rather than in a resource-starved environment with large rural and socially disadvantaged populations. Despite the majority of lawyers being concentrated in capital cities, the legal profession usually opposes attempts to allow paralegals to represent indigent people or assist in court in rural or socially disadvantaged areas even when there are no lawyers available.
In addition, he argues that while provisions regarding the role of paralegals and their being formally incorporated into national legal aid schemes, (subject to accreditation by such schemes), have been adopted at stakeholders’ meetings, some legal drafters and/or legislators do not make provision for paralegals to be stationed at every court in small towns to assist court officials in ensuring that access to justice is provided by providing legal advice and assistance or referring persons to legal aid providers. Nor do they allow paralegals to be stationed at every traditional leader’s office to ensure that traditional dispute resolution decisions are made in accordance with fundamental human rights and where necessary diverted to or from the formal legal system. He recommends that such clauses should be considered by law-makers as they are consistent with paragraphs 9 and 10 of the Introduction to the UN Principles and Principle 14.
He also notes that in many countries there is resistance to allowing paralegals, law students or lay advisers to assist an indigent litigant or accused person in court as “a McKenziefriend” when no lawyers are available.
He suggests that the court may allow such persons or litigants to be advised and assisted by a paralegal, law student or lay adviser who may not represent the accused person or litigant but may assist the accused before and during trial. This provision would apply to unsupervised paralegals, law students or lay advisers, e.g. in deep rural areas. Decisions by the court in such unrepresented cases that resulted in imprisonment could go on automatic review to a high court judge in chambers.
As an aside, the issue of the regulation of paralegals is very relevant in South Africa at the moment, as we have recently enacted a new Legal Practice Act. Section 34(9) of the Act provides that the Legal Practice Council must, within two years after the commencement of Chapter 2 of the Act, investigate and make recommendations to the Minister on the statutory recognition of paralegals, taking into account best international practices, the public interest and the interests of the legal profession, with the view to legislative and other interventions in order to improve access to the legal profession and access to justice generally.
On the issue of resources for legal aid, Prof McQuoid-Mason has stressed that often governments profess to support a legal aid system but are reluctant to provide sufficient resources. He argues that it would be useful to give governments examples of per capita expenditure on legal aid in different and comparable countries so that they can establish a suitable benchmark. Another useful guideline is to compare the amount spent on the prosecution service with that provided for legal aid – there should be some degree of parity to ensure equality of arms (UN Guideline 12). The state, he says, should not expect to run a legal aid scheme solely on pro bono services by lawyers – although this may be a useful adjunct to a national legal aid scheme (UN Guideline 11).
The state should consider allocating a percentage of the criminal justice budget, using funds recovered from criminal activities or giving incentives to legal aid providers in rural and socially disadvantage areas (UN Guideline 12).
Ladies and gentlemen,
To conclude, it is important that countries recognise, and that we continue to highlight, the value of a well-functioning legal aid system. A well-functioning legal aid system, as part of a functioning criminal justice system, may reduce the length of time suspects are held in police stations and detention centres, in addition to reducing the prison population, wrongful convictions, prison overcrowding and congestion in courts. It may also protect and safeguard the rights of victims and witnesses in the criminal justice process.
Legal aid plays an important role in facilitating diversion and the use of community-based sentencing.
It is equally important that we recognise the value of partnerships in providing legal aid to the poor and indigent. States employ different models for the provision of legal aid. These could involve a variety of different role-players such as public defenders, private lawyers, contract lawyers, pro-bono schemes, universities and law clinics, public interest firms, bar and lawyer associations, paralegals and others.
The UN Principles acknowledge the importance of such partnerships and encourage states to recognise and optimise the contribution of lawyers’ associations, universities, civil society and other groups and institutions in providing legal aid. States should also take measures to encourage legal and bar associations to support the provision of legal aid by offering a range of services, including pro bono services.
In conclusion, for all countries to ensure the sustainable development of their legal aid systems the following is required:
- Legal aid should be incorporated into domestic law;
- The state should make available sufficient budget for an independent autonomous entity to deliver legal aid services;
- The state should ratify and meet its obligations under international and UN Conventions to provide quality legal services at state expense subject to human rights norms; and
- Marginalised groups living on the periphery of society such as indigent women, children, the aged, and the disabled and those in rural areas should enjoy a specific focus.
The call therefore continues for the UN Principles and Guidelines and Johannesburg Declaration to be publicised widely to legal aid networks and forwarded to national governments.
It cannot be over-emphasised that the cost of not providing state funded legal assistance supersedes the cost of its provision and has significant financial ramifications for individual pre-trial detainees, their households, and communities, as well as for states processing large numbers of pre-trial detainees.
The right to legal aid is a fundamental aspect of access to justice. Alexander Solzhenitsyn wrote that “Justice is conscience, not a personal conscience but the conscience of the whole of humanity." Legal Aid is part and parcel of that conscience.
I thank you.
