Transcript of "Role & contributions of ethiopian cs os in legal aid (english)"
The Role and Contributions of Ethiopian Civil Society Organizations inthe Provision of Legal Aid Services1 IntroductionLegal aid implies the provision of services of ‘legal’ nature free of charge or at a discount to thosewho cannot afford such services. The rationale for the provision of legal aid services could beseen from various complementary and overlapping perspectives including enhancing the rule oflaw, good governance, human rights, empowerment of the poor, and poverty alleviation.1 Thesocial policy and empowerment perspectives recognize legal aid as ‘a vital, legally mandatedsocial service’ essential in maintaining ‘a functioning justice system and promote equality andjustice in our society’2. From a human rights perspective, the critical importance of access to legalservices in the enforcement of rights across the board is obvious. While the international andregional human rights instruments on civil and political rights do not specifically mention legalaid as a right, the human rights basis for access to legal aid is drawn from the right to access tojustice, fair trial and equality before the law.The human rights perspective on the relevance of legal aid had a dual basis: access to legalservices as a right; and, availability of legal services as a pre-requisite for the enforcement ofhuman rights. The first draws upon the recognition of access to justice, fair trial and equalitybefore the law in the human rights legal framework and underlines the provision of legal aid as acore component in the substance of these rights. In addition, the relevance of legal aid within thehuman rights framework is seen in the ‘justicibility’ of all human rights and access to remedies incases of violation. The recognition of a right would be meaningless without access to the meansof enforcing claims arising from the right.This article seeks to highlight the implications of the Charities and Societies Proclamation (ChSP)to civil society engagement in the provision of legal aid services in Ethiopia.2 Pre-CSP EngagementThe engagement of civil society in the provision of legal aid services starts withprofessionalization of legal education and practice giving the lawyer the status of mediatorbetween the formal legal system and the public. This set up led to the progressive recognition ofthe social responsibilities of the legal profession to make its services accessible to the poor and1 Stephen Golub, Forging the Future: Engaging Law Students and Young Lawyers in Public Service, Human Rights, and Poverty Alleviation, An Open Society Justice Initiative Issues Paper, January 2004, p. 12 Alison Brewin and Kasari Govender, Rights-Based Legal Aid: Rebuilding BC’s Broken System, Canadian Center for Policy Alternatives, November 2010, p. 4Ghetnet Metiku WoldegiorgisE-mail: email@example.com Page 1
victims of violations who need it most. The free of charge services of legal professionals, referredto as pro bono publico or pro bono for short, gained more prominence with the coming intobeing of Bar Associations – professional associations of practicing lawyers/advocates. Theseassociations not only provided an institutional framework for legal aid but also gave it formalstatus as an obligation by incorporating it within professional codes of conduct for practicinglawyers.However, the engagement of civil society in legal aid service provision started in earnest after1991 with the relaxation of regulatory rules for civil society and in the context of an overall movetowards democratization. This period saw the emergence of a new breed of CSO often referredto as ‘advocacy NGOs’ including formerly inward looking trade unions transformed intoprofessional associations. These organizations had public service as their organizing theme andsought to serve the interests of the marginalized, the underprivileged and the downtrodden(a.k.a. the poor). A few among these advocacy NGOs planned to do so by removing the barrierspreventing the poor from using the law and its institutions to seek remedies for violations andbetter their lives. To this end, the organizations implemented innovative projects to improvelegal awareness (legal literacy), create community capacity (paralegals), and promote publicservice and voluntarism in the legal profession (public interest lawyering). While the processinvolved the contribution of a wide range of actors, early ‘advocacy NGOs’ such as ActionProfessionals’ Association for the People (APAP) played a formative role as pioneers of legal aidengagement by CSOs between 1991 and 1995. Latter, the provision of legal aid services by theEthiopian civil society sector was given formal legal recognition distinct from pro bono servicesrequired of advocates through the introduction of advocacy license in the legal regime for theregulation of advocates practicing before federal courts.Until very recently, a long list of NGOs provided legal aid services to specific social groups, onspecific legal issues and/or to the poor in general through voluntary and/or paid staff as well asthrough paralegals. The most visible programs with national scope included: – Legal advice, counseling and representation provided by the Children’s Legal Protection Center (CLPC) of the African Child Policy Forum (ACPF) 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 (10 centers established in collaboration with networks of Idirs operating in Harrar, Diredawa, Adama, Assela, Hawassa, Jimma, Bahirdar, Debrebirhan and 2 in Addis Ababa), three joint projects with regional legal professionals’ associations and two legal aid centers (inside the premise of the Central Correctional Center in Addis Ababa and Harar Correctional Center in East Hararghe Zone of the Oromia Regional State); and,Ghetnet Metiku WoldegiorgisE-mail: firstname.lastname@example.org Page 2
– 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.The number of people who accessed the legal system and protected their rights through the legalaid services of these organizations is very substantial. For instance, nearly 70,000 clientsthroughout Ethiopia received legal aid services between 1996 and end of 2007 from EWLAalone. Similarly, APAP and its partners provided legal aid services to a total of 20,951 personsbetween 2000 and 2007.Organization Major Beneficiaries Number of Beneficiaries in 2007APAP The Poor 7,226ANPPCAN Child victims of abuse and neglect 663ACPF/CLPC Children deprived of their liberty and child victims of 4,123 abuseEWLA Women and girl victims of GBV 18,013 30,025Sources: Annual Reports of Organizations for 2007 (Quoted in Ethiopian CSOs: Partners inDevelopment, 2010)In November 2007, organizations that provide free legal aid services to disadvantaged socialgroups launched a referral and coordination network. A directory of complementary serviceproviders and a Directory of Legal Aid Providers in Ethiopia were also developed and publicizedaround the same time.3 Issues under the ChSP RegimeThe introduction of the ChSP and subsequent directives issued by the Charities and SocietiesAgency (ChSA) to implement the Proclamation raise critical issues for the operation of legal aidservice provision programs in the Ethiopian civil society sector. The major ones relate to theconception of legal aid, the designation of ‘legal service costs’ and associated expenses asadministrative vs. operational costs, and the status of referral networks.The conception of legal aid as a service provision or rights promotion activity is the most criticalissue raised by the ChSP. Although legal aid literally involves the delivery of legal services(comparable to medical services), it is also seen as a rights promotion activity falling within thepurview of activities listed under Article 14(j-n) of the Proclamation. Since only Ethiopian charitiesor societies may engage in these activities, legal aid service providers are by law required to be‘Ethiopian’. By implication, legal aid service providers are prohibited from using foreign fundingfor more than a tenth of their expenses.Another more practical issue affecting legal aid service providers is the placement of ‘legal servicecosts’ as administrative vs. operational costs. Unlike most comparable services, legal serviceGhetnet Metiku WoldegiorgisE-mail: email@example.com Page 3
provision does not involve the construction of facilities or pecuniary transfers to the finalbeneficiaries. Instead, the professional legal expertise of lawyers is made available to those inneed either through directly through the engagement of qualified professionals or indirectlythrough the training of paralegals and legal literacy training. Direct service provision, which isoften necessitated by the nature of the need as well as the limited number of qualified providers,usually involves the payment of fees in light of the limited culture of voluntarism as well as lackof adequate provisions for mandatory pro bono services. Similarly, the training of paralegals orconducting a legal literacy program entails even more financial commitments for training anddeployment of ‘intermediate beneficiaries’. The designation of these expenses for the purposes ofthe 70/30 directives is thus an essential determinant factor for the very practicability of legal aidservice provision.Finally, the recognition and place of networking and referral arrangements under ChSP and theconsortium directives impacts on legal aid service providers in a distinct manner. Legal aid couldbe described as a continuum of interrelated and interdependent services at two levels. First, ‘legalassistance’ involves a range of professional services including counseling, preparation ofdocuments, and representation each customized to the specific circumstances of the ‘client’ aswell as the nature of the issue involved. These services are not likely to be available within oneinstitution due to the requirements of specialization as well as the limitations arising from theavailability of expertise. It would thus be necessary to create a referral network among legal aidproviders. Secondly, legal services are but one of the multi-sectoral services required by the client.For instance, a victim of crime may need psycho-social support or medical attention. This calls foranother layer of referral networks between legal aid providers and service providers across othersectors.4 Post-ChSP Engagement/Current StatusThe provision of legal aid services by charities and societies has been affected by the coming intoeffect of the Charities and Societies Proclamation (Proclamation 621/2009) in terms of access toforeign funding and engagement in the provision of some legal services. Very few charities andsocieties have any legal aid programs to speak of. All of the remaining providers have a singlesource of funding, the Ethiopian Human Rights Commission (EHRC). In some cases, alternativefunding has been provided by the EHRC to address the funding gap. Currently, the Commissionis providing financial support to free legal aid centers established by civil society organizations aswell as professional legal education institutions to provide free legal services to vulnerablegroups.5 Conclusions/Way ForwardUnless these issues are resolved favorably, the likely overall impact is one of shrinking coverageof legal aid programs and disengagement of CSOs from legal aid service provision. This hasalready been seen in the apparent shift among key legal aid service providers away from theirprior areas of focus, the sudden disappearance of interest in public interest litigation, and thediminishing scope and coverage of persisting programs. While some of these observations may beGhetnet Metiku WoldegiorgisE-mail: firstname.lastname@example.org Page 4
attributed to the short-term effects of lack of access to foreign funding, the fundamentalwithdrawal trend among CSOs is unmistakable.The following are options that may be considered singularly or in conjunction to enhance theengagement of CSOs in legal aid service provision within the current legal and regulatoryframework: 1. The conception of legal aid as a service provision activity, rather than a rights promotion one, should be considered by the ChSA at least in clearly identified service oriented situations (e.g. where legal assistance is provided directly to beneficiaries); 2. The ChSA should adopt a contextualized categorization of costs for legal aid service providers taking into account the nature of legal services; 3. The domestication of funds provided by international or foreign donor agencies such as UNICEF, the European Commission and USAID under agreements with the GoE may be considered using the EC’s Civil Society Fund experience as a basis; 4. Utilizing government institutions such as the EHRC, Ombudsman, MoJ, MoWYCA, MoLSA and regional/municipal counterparts as channels for foreign funding for legal aid though programs they coordinate (see example of the EHRC); and, 5. The status of referral networks among legal aid providers as well as with providers of other relevant services such as social support and medical assistance should be clarified by the ChSA.SourcesThe following are some of the key references used in preparing this article. 1. ACHPR, Principles and Guidelines on the Right to Fair Trial And Legal Assistance In Africa, 2001 2. African [Banjul] Charter on Human and Peoples Rights, adopted June 27, 1981, OAU Doc. CAB/LEG/67/3 rev. 5, 21 I.L.M. 58 (1982), entered into force Oct. 21, 1986 3. Alison Brewin and Kasari Govender, Rights-Based Legal Aid: Rebuilding BC’s Broken System, Canadian Center for Policy Alternatives, November 2010 4. Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone, Report of the Commission on Legal Empowerment of the Poor, Volume I, 2008 5. Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment, February 4, 1985Ghetnet Metiku WoldegiorgisE-mail: email@example.com Page 5
6. Convention on the Elimination of All Forms of Discrimination against Women, adopted by the UN General Assembly on 18 December 1979 (resolution 34/180) and entered into force on 3 September 1981 7. Convention on the Rights of the Child, adopted 20 Nov. 1989, GA Res. 44/25, 44 UN GAOR Supp. (No. 49) at 165, UN Document A/44/736 (1989) 8. Dakar Declaration and Recommendations (1999) 9. David McQuoid - Mason, The Supply Side: The role of private lawyers and salaried lawyers in the provision of legal aid – some lessons from South Africa, Paper presented to the Lilongwe Conference on Legal Aid, November 2004 10. Don Fleming, Legal aid and human rights, Paper presented to the International Legal Aid Group Conference, Antwerp, 6-8 June 2007 11. FDRE Constitution 12. Human Rights Committee, General Comment 12: Administration of Justice 13. Human Rights Committee, General comment No. 18: Non-discrimination, Thirty-seventh session, 1989 14. Human Rights Committee, General comment No. 21: Article 10, Humane treatment of persons deprived of their liberty, Forty-fourth session, 1992 15. Human Rights Committee, General Comment No. 8: Right to liberty and security of persons (Article 9), Sixteenth session, Office of the United Nations High Commissioner for Human Rights, Geneva, Switzerland, 1982 16. International Covenant on Civil and Political Rights, 1966 17. Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa (2004) 18. Ministry of Justice, Criminal Justice Administration Policy, Adopted by the FDRE Council of Ministers, March 2011 19. Open Society Justice Initiative, Community-based Paralegals: A Practitioner’s Guide, 2010 20. Penal Reform in Africa: Index of Good Practices in Providing Legal Aid Services in the Criminal Justice System, Version 2, February 2006 21. Proclamation No 25/1996, Federal Courts Proclamation 22. Proclamation No. 210/2000, Establishment of the Ethiopian Human Rights CommissionGhetnet Metiku WoldegiorgisE-mail: firstname.lastname@example.org Page 6
23. Proclamation No. 621/2009, Charities and Societies Proclamation 24. Proclamation No. 691/2010, Definition of Powers and Duties of the Executive Organs of the Federal Democratic Republic of Ethiopia Proclamation 25. Proclamation No.199/2000, Federal Courts Advocates Licensing and Registration Proclamation 26. Richard J. Wilson, The Right to Legal Assistance in Civil and Criminal Cases in International Human Rights Law, Prepared for the National Legal Aid and Defender Association, February 5, 2002 27. Stephen Golub, Forging the Future: Engaging Law Students and Young Lawyers in Public Service, Human Rights, and Poverty Alleviation, An Open Society Justice Initiative Issues Paper, January 2004 28. Stephen Golub, Forging the Future: Engaging Law Students and Young Lawyers in Public Service, Human Rights, and Poverty Alleviation, An Open Society Justice Initiative Issues Paper, January 2004 29. United Nations Declaration on the right and responsibility of individuals, groups and organs of society to promote and protect universally recognized human rights and fundamental freedoms on December 9, 1998 30. UNODC, Hand Book on Improving Access to Legal Aid in Africa, 2011Ghetnet Metiku WoldegiorgisE-mail: email@example.com Page 7