Legal aid or legal waste

Abstract

“…without access to justice, people who live in abject poverty could be ignored without a voice in advocating justice for themselves.” These are the words of Justice Nene Amegatcher. Justice, as embodied in our motto Freedom and Justice, is an imperative fragment of democracy. It is the epitome of rule of law embodied in the principle of equality before the law. Accessing justice is as a result of legal representation but here lies the case where many people are kept away from this truth. Therefore, persons who come into conflict with the law witness first hand miscarriage of justice and these people are mostly those who cannot hire good lawyers from the various law firms to take up their cases. Hence the need for legal aid, which is tasked with providing legal assistance to indigents who cannot afford the services of a lawyer. But is it relevant at all? Do these same indigents, whom the legal aid was made for, value its existence?

What is Legal aid?

Gathering information for this write-up made me realise the significance of this question for it is either people do not know at all, know little, have an average idea or believe that it is a new law firm in town (using Koforidua as a case study). In analysing these four responses, I noticed a thin line between knowledge of fact and ignorance.

To begin with, legal aid is spearheaded by the Legal Aid Commission. The Legal Aid Commission is a governmental organisation under the Ministry of Justice which is tasked with providing legal aid for the indigents and persons who have reasonable grounds to take, defend, prosecute or be parties to proceedings related to the constitution. The mandate of the Legal Aid Commission stems from article 294 of the 1992 constitution:

For the purposes of enforcing any provision of this constitution, a person is entitled to legal aid in connection with any proceedings related to this Constitution if he has reasonable grounds for taking, defending, prosecuting or being a party to the proceedings.

Subject to clause(1) of this article, Parliament shall, by or under an act of parliament, regulate the grant of legal aid.

Without prejudice to clause(2) of this article, parliament may, under that clause provide the granting of legal aid in such matters other than those referred to in clause(1) of this article as may be prescribed by or under that act.

For the purposes of this article, legal aid shall consist of representation by a lawyer, including all such assistance as is given by a lawyer, in the steps preliminary or incidental to any proceedings or arriving at or giving effect to a compromise to avoid or to bring to an end any proceedings.

NB: The act that gave birth to legal aid is Act 542 of 1997 but now the act has been amended to Act 977 of 2018 i.e. Legal Aid Commission Act 2018(Act 977)

Majority of citizens who are aware of the existence of the legal aid commission recognize its function as offering free legal services to those who cannot afford a lawyer but they cannot really tell what those legal services entail.

This should make us ponder over the issue of whether or not the legal aid commission is performing its duties efficiently? The legal aid commission performs five basic functions: it ensures that all persons are equal before the law; it provides free legal services to persons who are arrested, restricted and cannot afford for legal services; it offers free counselling services; it offers free legal advice and it also brings legal aid services to the doorstep of every Ghanaian.

As communicated to me by an officer of the legal aid commission in Koforidua, Mr. Ampofo, the mission and vision of the legal aid commission is to be a leading professionally effective and efficient organization recognized by the entire citizenry as having to provide legal aid services to the poor and needy in society whilst partnering harmoniously with the various stakeholders in the justice delivery system i.e. CHRAJ, DOVVSU, FIDA, Social welfare, the courts, Children’s ministry etc to ensure a just and equitable society. I would leave you to be the judge of that.

Fast forward, the mandate of the legal aid commission as provided for in the legal aid commission Act 2018 (Act 977) is to:

Provide legal aid to an indigent

Through the representation of clients in courts

Utilisation of alternative dispute resolution mechanisms

By legal advice and education

To provide legal aid to a person who has reasonable grounds to take, defend, prosecute or to be a party to proceedings related to the constitution in accordance with clause (1) of article 294 of the 1992 constitution.

One of the major misconceptions I took notice of throughout my research is that people presume that because the legal aid commission offers free legal services you can just walk into any of their offices and your case will be taken up right away. This is partly true but wholly incorrect.

The legal aid commission is not necessarily meant for the entire citizenry but a specific category of persons. Owing to this, the organization has set up three tests which would qualify an individual for accessing legal aid. The tests include the merit test (the person must show that the case is not a frivolous one, that there’s a legal base for taking the matter), means test (whether or not the person can afford the case for which he is seeking redress) and reasonable test (whether or not the person is well grounded in law and whether or not the case is valid).

However, there is an exception. Legal aid is freely accessed if the person seeking aid is for the enforcement of the constitutional provision and somebody charged with an offence for which the punishment is death or life imprisonment.

The perception of the society

Indeed, we have to applaud and acknowledge the legal aid commission for their recent development over the past few years. It has expanded its offices across the regions and has embarked on public education lectures on both television and radio. In Koforidua for example, Mr. Ampofo informed me that he visits the Sunrise radio station to broadcast on the rights of citizens. However, is the commission doing enough? Using Koforidua as a case study, it is quite clear that the commission has a lot of work to do on grounds.

Through questionnaires and interviews, I figured out that the inhabitants, as I said earlier, either do not know at all, know little, have an average idea or believe it is a new law firm in town. I do not blame them because although the commission has been in existence in the capital for quite a number of years, what the society generally knows is the Amoako Adjei Law Firm, the leading legal company in the capital.

Sharing their views with me, it seems a good number of people do not trust the services of the commission.

One of the interviewees shared a testimony of a legal aid lawyer not diligently working on a friend’s case which yielded no success upon judgement. He has therefore decided to “hustle” so in case he has an issue to settle in court, he would be able to procure the services of a private lawyer. He even went ahead to mention a lawyer’s name, whom he believes to be very skilled in the legal business.

Other reasons for which they do not trust the commission is the fact that it is a governmental organization. Politically, it appears the people are slowly losing confidence in the government. They assume that the commission also faces same challenges as every other governmental organization which includes not being paid on time, inadequate funds, human resource and logistics. With all these problems, they believe it will be difficult for the commission to render satisfying and efficient services.

To an extent, they also believe that there is bribery and corruption in the commission. Since the probability of the legal aid lawyers working diligently on a case is low (to them), they think that they would have to end up giving the lawyer “something” to “motivate” him or her. According to Mr. Ampofo, the client only pays for the lorry fare of the lawyer but the people feel there is more to it.

As if that is not all, one outrageous comment made by one of the interviewees was that “the legal aid is a scam.”

Another too shared her opinion that the government certainly interferes in the work of the commission for which she believes it is the root source of its incompetence.

In my conversation with some students on why the legal aid commission is relatively unpopular in Koforidua, they responded by expatiating the scantiness of public education on the existence and duties of the legal aid commission. To them, the office in Koforidua is not advertising itself enough which is why only few inhabitants know about it.

They suggested that members of the commission should not just be going to churches to advise the congregation on their rights, they should tell them also about the duties of the legal aid and the services they render. They should be embarking on trips to schools and market places for the inhabitants to be aware of its presence. They also suggested that the government pays the legal aid lawyers well and provides them with the necessary facilities to encourage them to dedicate themselves to their work.

Conclusion

The commission sees success and accomplishment. On the contrary, the society pictures failure; incompetency; inactiveness and corruption. Notwithstanding the high patronage of the commission in the past few years, there is more room for improvement.