Programme Director, Dr Khotso de Wee
Judge President of the Gauteng Division of the High Court of South Africa and Chairperson of Legal Aid SA, Judge President Dunstan Mlambo
Your Excellencies, Justices, Ministers and Deputy Ministers of Justice
Distinguished guests
Ladies and gentlemen.
Good evening and welcome to you all. I wish to convey the best wishes of Minister Jeff Radebe who unfortunately could not attend this evening, as he is accompanying President Zuma as part of the South African delegation to the African Union Summit in Equatorial Guinea.
Ladies and gentlemen, more than a century ago, in 1893, lawyer Edward R Johnes said: “The Law is a mighty machine. Woe to the unfortunate man who, wholly or in part innocent, becomes entangled in its mighty wheels, unless his innocence is patent or his rescue planned and executed by an able counsel.”
The need for legal assistance by an able counsel is as pertinent today as it was then. 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.
Legal aid lawyers are often called the guardians of due process, as they are indispensable to a just legal process. One of the purposes of this conference is to highlight the recently developed United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems. It was adopted by consensus by the 67th session of the UN General Assembly in 2012.
It describes legal aid as an essential element of a fair, humane and efficient criminal justice system that is based on the rule of law. Legal aid is a foundation for the enjoyment of other rights, such as the right to a fair trial, and is therefore a precondition to exercising such rights and is an important safeguard that ensures fundamental fairness and public trust in the criminal justice process.
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. Yet many countries still do not have the necessary resources or capacity to provide a comprehensive national legal aid system.
It is tragically 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.
Many of you will no doubt be familiar with the United Nations Office on Drugs and Crime (UNODC’s) Survey Report on Access to Legal Aid in Africa which was concluded in 2011. The survey, which was conducted among 30 African countries, found that coverage by State legal aid systems was, I quote, “patchy at best”. Access to legal aid at all stages of the criminal justice system was found to be generally unavailable and the budgetary allocation for legal aid minimal.
The survey concluded that persons accused of a crime could not expect legal advice for mounting a defence or informing a plea to a serious charge, nor for representation in cases where a conviction could lead to a prison sentence. It found that lawyers were few in number and generally unavailable in rural areas and law students were under-utilised. Community legal services were found to not be available in every district nor accessible by persons in need of such services. Finally it found that most governments do not have an overarching legal aid strategy to maximise the use of the resources available.
These challenges do not exist in developing countries only. In the developed world many of the same challenges exist. Recent international research has identified the 5 most common challenges facing well-established legal aid or public defence systems.
Firstly, there is the “no counsel at all” phenomenon, where despite legal aid being available, a person accused of a crime will still go to trial without a lawyer.
Secondly, there is the issue of excessive caseloads, with public defence caseloads far exceeding those of private defence counsel.
Thirdly, there may sometimes be a lack of enforceable standards. According to the National Legal Aid and Defender Association it may happen that although individuals in a country are entitled to legal aid, the quality of representation may vary widely across a country, due to, for example, some public defence lawyers having better training or better resources than others. Some, they argue, will have access to experts and investigators, while others do not.
Fourthly, there is the universal problem of underfunding. In October last year, UK Supreme Court president, Lord Neuberger, warned against the cutting of the UK legal aid budget and said: “Cutting the cost of legal aid deprives the very people who most need the protection of the courts of the ability to get legal advice and representation.”
Simply put, inadequate funding leads to inadequate legal aid. It is alleged that certain countries will spend three times as much on prosecution services as on legal aid. And finally there is the issue of a perceived lack of independence.
Ladies and gentlemen,
Despite the challenges facing legal aid, there has also been significant progress. We have come a long way over the past 10 years since the adoption of the Lilongwe Declaration in Lilongwe, Malawi, in November 2004.
And it has been a little more than 50 years since the US Supreme Court handed down what has arguably become the most well-known case regarding legal aid, namely the case of Gideon v Wainwright. It was, at the time, in 1963, a ground-breaking case. It has since had a profound impact on criminal justice systems. Clarence Gideon was a man of little means, he had a Grade 8 education, ran away from home as a teenager and was in and out of jail for minor offences. One article describes him as an “impoverished drifter”.
He broke into a pool hall and was subsequently charged with breaking and entering under Florida law. At trial, Gideon appeared in court without an attorney. In court he asked the judge to appoint counsel for him because he could not afford one. The trial judge denied his request because Florida law only permitted the appointment of counsel for poor defendants when charged with capital offenses.
Gideon represented himself at the trial and by all accounts he did a relatively good job of it. He made an opening statement to the jury, cross-examined the prosecution’s witnesses and presented his own witnesses. Nonetheless he was found guilty and sentenced to five years imprisonment. He went on to challenge his conviction on the ground of the judge’s refusal to appoint counsel and that the refusal violated his constitutional rights. The Florida Supreme Court denied Gideon’s application. Gideon next filed a handwritten petition in the US Supreme Court and won.
What is remarkable about the case is that fact that, if we look at the case today, it is simply unimaginable that a person convicted of a crime could face a court whilst being denied legal aid. That is how far we have come in 50 years. We have made major strides in ensuring that legal aid has become a fundamental and a most basic human right. A mere 50 years ago this was not the case.
Last year, at the 50th anniversary of the Gideon case, Andrew Cohen writing for The Atlantic explains why the case is so well-known and he says, I quote, “because all of us, at one point, may wonder what it feels like to be charged with a crime - and to be all alone.”
These words will resonate with many of us. For us, in South Africa, it is all the more relevant because of our history. 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, 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. The Board became responsible for providing legal aid in criminal cases where accused persons could not afford lawyers and “a substantial injustice would otherwise result” if they were not represented.
This brought with it its own problems, as the judicare model of referring cases to private attorneys simply became unaffordable and the Board was subsequently compelled to consider other, more cost-effective, models of delivery. The Board was unable to cope with the explosion in the demand for legal representation. Its affairs were in chaos and budget deficits and qualified audits were the order of the day.
But through the dedicated efforts the department, along with the parliamentary Portfolio Committee, academics, law clinics and a board under the leadership of Judge Mohammed Navsa, the ship was turned around.
This lead to the implementation of a public defender model and sound organisational governance practices. Today we can proudly say that Legal Aid South Africa, under the leadership of Board Chairperson Judge President Mlambo and CEO Vidhu Vedulanker, has been revamped and remodelled to one of the best legal aid systems in the world. It continues to discharge its mandate to facilitate access to justice by providing public funded legal representation to the poor and the indigent, and has done so in a commendable manner.
Legal Aid SA has grown significantly. Where there were a total of 79 501 matters in 1993/94, the number of total cases has grown dramatically to 736, 679 in 2012/13. This includes legal representation in 438, 844 criminal and civil matters and advice in a further 297, 835 matters, including through a national legal aid call-centre. The total number of staff has grown from 100 in 1993/94 to 2 578 in 2012/13.
One of Legal Aid SA’s core values is “a passion for justice.” This service to the poorest of the poor amongst our communities bears testimony to our commitment to our constitutional imperatives and to ensure access to justice for all our people. This sterling work is done by a dedicated, motivated and representative team of 183 staff at national office and 2 395 staff based at 128 justice centres nationally - comprising 64 main and 64 satellite offices.
And we have put our money where our mouths are when it comes to funding. The budget for the Legal Aid Board, as it was called then, in 1993/94 was R62 million. We have, from the side of government, over the years incrementally allocated more and more funding to improve access to legal aid. In 2002/03 the Board’s budget was R341,8 million (this amounts to about $57 million). A year later, in 2003/04, the amount allocated was R367,9 million (about $61,3 million). In 2008/09 the budget again increased significantly to R869,5 million and the budget in 2012/13 was R1,25 billion (about $118, 6 million).
What these figures show is that the increases are substantially more than the usual annual, or purely inflation-related, increases. As Professor David McQuoid-Mason who is here tonight, writes: “as the country moved towards democracy, the Board’s budget began to increase dramatically, particularly after the new democratic dispensation.”
So there really has been a concerted and directed effort at improving funding for, and growing, Legal Aid; this at a time when many other countries are cutting back on their legal aid budgets.
Legal Aid SA has maintained a mixed-model legal aid delivery system, with the bulk of the service (96%) provided by in-house salaried lawyers employed at our Justice Centres. During 2013/14 Legal Aid SA assisted nearly 17 000 children, with 69% being assistance to children in conflict with the law and 31% to children in civil matters.
Programme Director, ladies and gentlemen,
Access to justice has been an important issue in many countries. There are many obstacles to increasing access to justice, the most pertinent challenge being that of lack of funding or budgetary constraints. Budgetary constraints and lack of funding are intricately linked to the high costs of legal fees. It is often said, in jurisdictions the world over, that there are two criminal justice systems at play, one for the rich and one for the poor.
As Prof Bryan Stevenson so aptly puts it, when it comes to criminal justice “it's often better to be rich and guilty than poor and innocent.”
We live in a time when the world is experiencing increasing levels of inequality. As Spanish novelist Miquel de Cervantes wrote: “There are only two families in the world: the Haves and the Have-Nots.” Increasing levels of inequality the world over mean that fewer people are now able to access private legal services. Thus the need for, and the importance of, legal aid becomes all the more apparent.
It is therefore 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.
Ladies and gentlemen, I conclude, I trust that you have all enjoyed a most fruitful conference and have experienced true South African hospitality. From the side of our Department in partnership with Legal Aid South Africa, let me take the opportunity of sincerely thanking our co-hosts, the International Legal Foundation, the United Nations Development Programme and United Nations Office of Drugs and Crime, as well as our collaboration partners, the Open Society Justice Initiative, the University of Pretoria and the University of the Witwatersrand as well as other donors and contributors, for making this conference possible. And my heartfelt appreciation to each and every one of you for your valued participation.
This conference has brought together a wide range of governmental, intergovernmental and civil society sectors and experts to share and build upon successful strategies for effective criminal legal aid delivery. I trust that from the deliberations and interactions here we have come a little closer to finding cost-effective legal aid models and the delivery of quality legal aid services to the poor.
Last year we lost our beloved Madiba. Late President Nelson Mandela once said that “to deny people their human rights is to challenge their very humanity.”
Every legal aid lawyer and public defender ensures daily that the human rights of the poor and the vulnerable are protected and their humanity upheld. May we all, as members of the international justice community, continue to strengthen legal aid the world over.
I thank you.
