Justice Minister Hon. Given Lubinda launched the National Legal Aid Policy on Friday, November 9, 2018, in Lusaka. We have studied the document with keen interest. We took interest in this matter because it touches on a fundamental human right due to all citizens, which is access to justice.
We are further concerned by the operations of the Legal Aid Board, hence our desire to see how this policy seeks to address the numerous challenges that confront the operations of this only public entity established to provide a mechanism for the administration of legal aid services to the poor who cannot afford to pay for the services of a private lawyer.
We welcome the vision of this policy for a Zambia where equal access to justice for the poor and vulnerable groups is provided through efficient and effective delivery of legal aid services. The emphasis on the poor and vulnerable, among us, is the right way to look at access to justice.
Zambia’s criminal justice system is very inefficient and many citizens on remand are separated from their families for crimes they may never be convicted for, whilst their children, dependents and those they love, lose their support resulting in children falling out of school, early death, marriages and other undesirable social consequences. The need for an effective legal aid system cannot be overemphasized.
Overcrowding is a major problem in most of Zambia’s correctional facilities. Most prisons we have were built prior to Independence to accommodate a total population of about 5,500 prisoners across the country. The Human Rights Watch Report on “Unjust and Unhealthy Report in Zambian Prisons” indicated that as at October, 2009, prisons housed a total of about 15,300 prisoners, which was nearly three times its official capacity; 35 per cent of these inmates were remand prisoners awaiting trial.
This, therefore, indicates that overcrowding is a consequence of criminal justice policy not necessarily the rising crime rates. This is supported by another report entitled “Challenging Disadvantage in Zambia” prepared by the Paralegal Alliance Network (PAN) and Prison Reform Trust (2015), which mentions that one of the causes for overcrowding was “the inadequacies in the Zambian criminal justice system, which holds people on remand or awaiting trial for a long period”.
The enhancement of access to justice necessitates the effective provision of legal aid understood as encompassing the provision to a person, group or community, by or at the instigation of state or non-state actors, of legal education, information, advice, assistance, representation and mechanisms for alternative dispute resolution. This is in line with the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, adopted by the UN General Assembly in December, 2012.
The document correctly observes that the legal aid situation in Zambia has been affected by the absence of a comprehensive national legal aid policy and a corresponding implementation framework to guide the provision of legal aid services by all legal aid service providers, including non-state actors.
We agree with Hon Lubinda’s sentiments that while legal aid interventions do not in principle transform the poverty situation of the recipients of the services, the interventions, coupled with governance and astute poverty reduction strategies, undoubtedly foster the social and economic development process of the country. But we feel the link between access to justice and poverty reduction cannot be downplayed.
The Legal Aid Board is greatly under-resourced with poor working conditions for lawyers and is heavily understaffed, hence carrying a perpetual backlog of cases, which compromises its efficiency. In its current form, we do not see how the Legal Aid Policy can retain the services of highly competent and experienced legal minds.
We see that the recently launched policy speaks to the need to reform access to justice by formally recognizing the role of paralegal aid service providers and incorporating them into the formal justice system. Although this process was heavily supported by cooperating partners, it addresses a fundamental need in the country. We appeal to the government to seriously take ownership of this document and implement its measures.
It is not good leadership to use donor funds to write good documents only to fail to allocate resources for implementation. Paralegals and law degree holders not admitted to the Bar in Zambia operate in an environment without formal recognition of their work and the contribution they make to access to justice. As a result, there is no standardised regulatory regime in place to ensure the competence and accountability of paralegals and law degree holders when providing legal aid services.
We have observed that government intends to, through this policy, recognise and regulate CSOs and university law clinics as providers of legal aid services. This is a welcome policy because NGOs have done a lot of good work through their paralegals, especially in rural areas and correctional facilities, but these paralegals some of whom are educated up to university level, have not received formal recognition, regulation and support.
We appeal to all those in the legal sector, including the Law Association of Zambia (LAZ), to support the legal reforms required by this policy to take effect. We need to move away from this elitist view of the practice of law, which disadvantages the poor and condemns them to perpetual poverty and exclusion.
We feel the need to review the law establishing the Legal Aid Board quickly and work on modalities to improve the training of paralegals. We have seen that with donor support, the Technical Education and Vocational Training Authority (TEVETA) has developed curricula for paralegal training across three levels of education, but we are not satisfied that this would work without government taking full ownership of this process.
Having a policy is one thing, implementing it is another. We appeal to the Justice Minister to demonstrate a meaningful passion and vigour to ensure that the right systems and laws are in place to enable measures to ensure access to the poor are enhanced.
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