ACCESS

TO
JUSTICE
 What is Access to Justice
• It is the ability of people to seek and obtain a remedy
through formal or informal institutions for grievances
in compliance with human rights standards.
• The 1995 Constitution makes several proclamations
regarding equal access to justice.
• Article 21 emphasises that all persons are equal
before and under the law in all spheres of political,
economic, social and cultural life and in every other
respect and shall enjoy equal protection of the law.
 Cont’d
• Article 28(1) is to the effect that a person shall
be entitled to a fair, speedy and public hearing
before an independent and impartial court or
tribunal established by law.
• Article 126(2)a enjoins courts to administer
justice to all irrespective of their social and
economic status.
 Cont’d
• Article 14 of the ICCPR provides for equal
treatment under the law and a right to have
counsel appointed in matters where the
interest of justice so requires.
• The African Charter on Human and People’s
Rights has provisions regarding rights to
access to justice similar to those found in
ICCPR.
 Cont’d
Access to justice involves the following:
• Equal access
 This involves extending the reach of
formal rule of law institutions to the population by
removing barriers to their use.
 Strengthening access also involves engaging
the informal sector to enhance its reach,
effectiveness, and compliance with human rights
standards.
 Quality of the justice system

 Improving access is not just about more

courtrooms or more staff. It is also about quality of
justice.
 Justice systems that are unaffordable, slow,
or incomprehensible to the public effectively deny
legal protections.
 Better prepared defense attorneys, more
citizen-oriented court staff, better information
about the justice system are all means for
improving quality
 Cont’d

• If individuals do not feel that their grievances will

be addressed in an efficient and timely manner
through a legitimate system, they may resort to
violent alternatives.
• The justice system should be linguistically
accessible with local language proceedings or
provision of interpretation.
• Try to ensure that staff members are
representative of the host nation population.
 Cont’d
• Quantity
 Do we have enough court, court rooms and
enough court administration to address problems?
 Do we have enough advocates ?
• Physical Access
 Courthouses and police stations may only exist in
urban, populated areas, leaving the rest of the
country without proper access to the formal justice
system.
 Provision of legal aid
• Legal information centers and legal aid offices that
offer free or low-cost legal advice and
representation.
• Projects that train people to represent
themselves, and paralegal-based projects that
train and employ people to serve as mediators can
increase public knowledge of the legal system.
• Supplement legal aid schemes with paralegal aid
schemes run by NGOs.
 Cont’d
• Training paralegals in criminal law and procedure in
order to provide legal advice to suspects or
accused persons who are brought before the
informal justice system.
• Para-legals can also sit in on police interviews and
go to court to provide advice (but do not represent
the accused)
• Legal assistance can also be provided by law
students or recent graduates through their law
schools or legal resource centers.
 Promote legal awareness
• For the population to access justice, they must
understand their rights and the means for
claiming them.
• Legal awareness campaigns can be conducted
by the state.
• Civil society can conduct legal awareness at
grassroots level or through the media.
• Messages should be in local languages.
 Strengthen civil society
• Civil society organizations should have a legal
status to appear in court to undertake public
interest litigation.
• Legal barriers to their work will need to be
removed (e.g., laws that prohibit civil society
from criticizing the judiciary).
Public confidence in the justice system.
• There is no access to justice where citizens
(especially marginalized groups) fear the
system, see it as alien.
• Majority of people should see the judicial
system as viable, responsive, and fair.
 Remedies for Grievances

• Maximizing access to justice involves the use

of both informal/non-state and formal/state
justice mechanisms based on strict
compliance with human rights standards to
obtain remedies for grievances.
Understand informal justice mechanisms.

• These systems derive legitimacy from traditional,

customary, or religious sources.
• In these environments, they often help resolve disputes
because the formal, state-based system does not reach
the entire population.
• The population views informal mechanisms as more
legitimate and effective, and the volume of cases may be
too large for the formal system to process. Where these
systems are ignored or overridden, the result can be the
exclusion of large sectors of society from accessible
justice.
 Recording of cases.
• Encouraging the recording of cases and their
resolution to promote consistency of decisions
and to provide a basis for appeal to the formal
system.
Support the enforcement of remedies.
• Remedies are useless if they are not enforced.
The enforcement of remedies is the province
of the prosecution service, the police, the
prison service etc.
• NGOs may also monitor the enforcement of
remedies.
 Fairness
• The justice system must handle cases
efficiently and predictably, according to set
principles and procedures.
• An efficient system should provide some level
of deterrence against criminal acts such as
bribes from those trying to
influence decisions.
 Ensure equal application of the law
• Individuals with power and marginalized populations
may receive unequal treatment. This imbalance in
application will likely have caused deep mistrust in the
system or may have led to violent resolution of
disputes.
• Applying the law equally regardless of identity is critical
to creating a semblance of fairness and legitimacy. This
involves applying laws in a non - discriminatory
manner, treating all parties equally in the courtroom,
and having rulings that are consistent with the law
regardless of the identity of the parties.
 Promote procedural fairness
• Procedural fairness is attained by establishing fair
rules for legal proceedings and adhering to them.
• This helps mitigate abuse by police, judges, and
prosecutors.
• For criminal offenses, procedural fairness involves
guaranteeing the right of those accused of crimes
to know the charges levied against them in a
language they understand, the right to obtain or
be provided counsel.
 Cont’d
the right to present evidence in their defense, the
opportunity to hear or review the prosecutor’s
evidence, the opportunity to confront and cross-examine
witnesses (where oral proceedings exist), and a right to a
speedy trial, particularly if incarcerated.
• In civil matters, procedural fairness ensures that :
 All parties have a full and equal opportunity to be heard
 To present evidence and arguments in support of their
position,
 To have notice of and opportunity to respond to the case
presented against them
 Cont’d
• To receive timely and adequate notice of all
court proceedings.
• Adequate procedural protection helps
ensure that law enforcement do not violate
the rights of individuals.
The Legislative Framework in Uganda
• A number of statutory and regulatory
provisions in Uganda pertain to access to
justice and the wider provision of legal
services.
a) The Poor Persons Defence Act, Cap. 20
• This is an Act “to make provision for the
defence of poor persons committed for trial
before the High Court.”
 Cont’d
b) The Advocates Act, Cap. 267.
• Section 3(e) stipulates that the Law Council
shall “…exercise
• general supervision and control over the
provision of legal aid and
• advice to indigent persons.”
 The Advocates (Legal Aid to Indigent Persons) Regulations, S.I
No.
12 of 2007

• These regulations are made pursuant to

section 77(1) (g) of the Advocates Act.
• Regulation 3(1) stipulates that the regulations
apply to persons, organisations or institutions
providing legal aid to indigent persons in
Uganda.
 The Law Development Centre Act, Cap.
132
• Section 3 (l) of this Act provides that the Law
Development Centre shall have the function of
“assisting in the provision of legal aid and
advice to indigent litigants and accused
persons in accordance with any law for the
time being in force.”
 The Advocates (Student Practice)
Regulations, S.I 70 of 2004
• The regulations enable students to provide
pro bono legal services.
• Student services must be offered under the
supervision of an advocate and the
supervising advocate retains the right to bill
for the advocate’s services.
 Government Efforts to Increase Access to
Justice
• From 2007 through 2011, the Ugandan
Judiciary has implemented administrative,
legal and judicial reforms under the Judiciary
Strategic Investment Plan II, better known as
JSIP II.
• JSIP II seeks to enhance access to justice,
improve human rights observance and
strengthen the rule of law in Uganda.
 Legal Aid Service Providers Network
(LASPNET)
• A second broad-based initiative was the
establishment of the Legal Aid Service Providers
Network (LASPNET) in 2004.
• This network has provided a platform for
collaboration and solution-directed initiatives
within the wide array of actors that seek to
promote access to justice.
• This effort has been further bolstered and
coordinated through the existence of the Legal Aid
Basket Fund.
 Justice, Law and Order Sector (JLOS) and
Law Council
• A third broad-based approach concerns the
efforts of the Justice, Law and Order Sector
(JLOS) and Law Council.
• JLOS provides guidance and direction for non-
governmental organisations seeking to
increase access to justice for the poor and
marginalized and to eliminate legal service
gaps.
 Cont’d
• The Law Council is charged with devising the
Terms of Reference for this initiative and has
made some progress in this regard.
• This includes setting up a pro bono scheme
supported by a legal and regulatory
framework to ensure that pro bono and legal
aid service provision is done in a well-
coordinated manner.
 State Brief System
• Under State Briefs, the Ministry of Justice
sends out invitations to practicing Advocates
requiring them to represent indigent criminals
at a modest fee provided by the State.
• This practice is in conformity with the
Constitutional provision under Article 28 that
requires that a person accused of a capital
offence shall be entitled to legal
representation at the expense of the State.
 Cont’d
• The advocates who are engaged to work in the
State Briefs System typically receive less pay
than the fees that are paid in private practice.
• Therefore, the State Brief System relies on the
willingness of Ugandan advocates to deliver
their services at lower than normal rates.
 Critics of the State Brief System.
• Many complain that lawyers assigned to
handle matters on State Brief fail to exercise
adequate diligence in research and
preparation.
• Some critique the low rate of pay provided to
the advocates.
 Cont’d
• Others assert that the State Brief System does
not go far enough to meet the Ugandan
Government’s obligations under the
Constitution and binding international human
rights instruments such as the ICCPR due to
the limited scope of criminal defendants who
receive free representation
 Justice centres
• Another prominent government-funded
measure addressing access to justice is the
Justice Centres Uganda initiative.
• Justice Centres provide legal aid services
across civil and criminal areas of justice to
indigent and vulnerable persons, while at the
same time empowering individuals and
communities to claim their rights and demand
for policy and social change.
 Cont’d
• Justice Centres offer a variety of core services
to the “most indigent persons of Uganda”
including:
• 1) legal advice;
• 2) legal representation;
• 3) alternative dispute resolution;
• 4) counseling;
 Cont’d
• 5) legal awareness;
• 6) referrals;
• 7) a toll-free help line.
• The Justice Centre initiative is intended to
“address the dilemma of availability,
accessibility, and quality of essential legal and
human rights based support to (the) indigent
population of Uganda.
Private legal practitioners and non-governmental
organisations.
• The Government seeks to promote the provision of
legal services to the poor and disenfranchised
through private legal practitioners and non-
governmental organisations.
• The Government support for such efforts ranges
from the establishment of regulations requiring all
practicing advocates to perform pro bono services
(or pay a fee in lieu of providing such services) to
openness towards cooperation with non-
governmental organisations (NGO’s).
 Cont’d
• The word ‘Pro bono’ is of Latin origin and
carries the meaning of designated legal work
undertaken without charge for someone on a
low income.
• This phrase is an abridgement of the term
‘Pro bono publico’ which means “for the public
good.
 Cont’d
• Pro bono work is essentially legal aid work to
vulnerable or underprivileged persons, carried
out at either a low professional cost or no
charge at all.
• Pro bono is regarded as central in providing
access to justice by ensuring equality before
the law, the right to counsel, and the right to a
fair trial.
 Objectives of Pro-bono
(a) Promote equality in access to justice and
improve delivery and standard of legal
services through pro bono.
(b)Interest advocates in appreciating the
provision of pro bono services.
(c) Strengthen institutional linkages with other
legal aid service providers.
 Cont’d
(d) Promote and emphasize the use of
Alternative Dispute Resolution (ADR),
(e) Promote networking and collaboration with
stakeholders at local and international levels
to improve the administration of justice.
 Cont’d
• Worldwide, major imbalances in civic and
economic opportunities exist. Imbalances in
accessibility to the attainment of justice must
be effectively addressed through the provision
of legal aid.
• Failure to adequately address imbalances
constitutes a violation of the principles of
equality before the law and due process under
the rule of law.
 Delivery models for provision of Probono
legal services
• The ‘Staff Attorney’ model – Lawyers and law
firms are employed on a salary basis, solely to
provide legal assistance to qualifying low-income
clients, similar to staff doctors in a public hospital.
• Examples include the Legal Aid Clinic of the Law
Development Centre, Kampala, the Uganda
Christian Lawyers’ Fraternity and the Legal Aid
Project at the Uganda Law Society Secretariat,
Kampala.
 JUDICARE MODEL
• The ‘Judicare’ model – Private lawyers and law
firms are paid to handle cases from eligible
indigent clients.
• At times such programs are optional, and in
other instances the provision of such services at
some level is a requisite for court membership.
• The Ugandan example of the judicare model is
the State’s Brief system for capital offenders
mentioned above.
 The ‘Community legal clinic’
• The ‘Community legal clinic’ – Comprises non-
profit clinics serving a particular community or
group setting through a broad range of legal
services such as legal representation,
sensitization on fundamental topics, and so
on.
• This is similar to community health clinics.
 The Bar Society model
• Law Societies/Bars require every member to
handle a certain number of pro bono cases
each year as a prerequisite for renewal of a
member’s practicing certificate annually.
• An example of such mandatory provision of
pro bono services is found in Uganda as
illustrated below.
 Cont’d
• In Uganda a mandate-based pro bono policy
has its genesis in the Advocates Act in 2002.
• Subsequent formal pro bono policy measures
have sprung from this seedbed including The
Advocates (Pro-bono Services to Indigent
Persons) Regulations, 2009.
• These Regulations are the major landmark in
pro bono service policy in Uganda.
 Cont’d
• The Advocates (Pro-bono Services to indigent
Persons) Regulations in Regulation 3, these
rules make the provision of pro-bono services
mandatory by every Advocate.
• Advocates are required to offer forty (40)
hours of pro-bono services to an indigent
person every year.
 Cont’d
• According to Regulations 3(2) and (3), the pro
bono services to be offered include:
• (a) Giving advice or providing representation to
indigent persons;
(b) Involvement in free community legal
education;
(c) Involvement in giving free legal advice or
representation to a charitable or community
organisation or to a client of such an organisation.
 Cont’d
• They may also include professional services
• Under Regulation 4 an advocate who is unable
to provide pro bono services is required to pay
the equivalent of one currency point to the
Law Council for each two professional service
hours that the advocate has not provided. A
currency point is equivalent to twenty
thousand shillings.
 Advantages of pro bono services
• Pro bono services enhance career
opportunities for law students. Bar Course
students that engage in pro bono legal
practice have a twofold opportunity of not
only gaining exposure to legal practice at an
earlier stage, but also the opportunity to
garner an impressive network that ultimately
catches the eye of a potential employer.
 Pro bono services develop vital skills
necessary in the legal profession
• Pro bono work provides practical learning
experiences.
• Law student exposure to pro bono services
helps develop personal organisation and time
management skills.
• Legal aid clinic work builds skills in witness
interviewing, counseling, alternative dispute
resolution mechanisms, legal writing and
drafting, and legal research.
 Cont’d
• Engaging in pro bono work also builds
teamwork and interpersonal skills.
• The core principles that provide a basis for the
work of pro bono organisations, nurture team
work and commitment among the members
of staff in ensuring that they live up to those
principles.
 Pro bono services can boost a student’s
academic performance and CV
• Participation in live-client or other pro bono
work boosts students’ academic performance
• Clinical Legal Education programs are presently
conducted at the School of Law, Makerere
University, the Faculty of Law, Uganda Christian
University, and other law schools in Uganda.
• Such programs enable student participants to
see the law in context and to understand what
it means to practice law at a deeper level.
 Cont’d
• Similar programs for Bar Course students at
the Law Development Centre enable them to
acquire hands-on training.
• Students prepare client files for trials
(acquiring file management skills) and conduct
legal research.
• Clinical experiences enable the students to
understand the law from the perspective of a
lawyer already in the field.
Challenges to the Provision of Legal Aid and
Access to justice in Uganda
Advocate backlash
• Requiring advocates to provide pro bono
services might cause them to look at their duty
to the wider public as a regulatory burden as
opposed to a professional responsibility.
• Instead of working to provide a valuable service
to the poor and excluded, advocates might look
for a way around the requirement.
 Cont’d
• In many instances this will result in advocates
simply choosing to pay the alternative fee in
lieu of providing legal services
 Overdependence on donor funding
• A number of Legal Aid and pro bono service
providers rely heavily on donor funding and
are accountable to the Legal Aid Basket Fund.
• Reliance on outside funding generates
operational uncertainty.
 Lack of Government Policy
• There is currently no Government policy on
Legal Aid Services to guide the effective and
efficient provision of legal aid in Uganda.
• In the absence of a national legal aid scheme,
effective legal representation for the poor and
access to justice remain elusive.
Economic, Social and Logistical Challenges

• In terms of economics, Uganda has a large

number of poor citizens that depend on
subsistence farming for survival. Moreover,
many Ugandans who are able to live a decent
quality of life are not able to access the cash
needed to pay for legal services.
 Cont’d
• Uganda is also home to many ethnic groups.
• This creates challenges in the translation,
dissemination and implementation of the written
law.
• Moreover, many Ugandans distrust the court
system based on the costs, fear of corruption and
beliefs that the formal law conflicts with widely
held cultural beliefs.
• All of these factors present serious challenges to
justice delivery and access.
 Cont’d
• Finally, and related to the above, is the issue
of logistics.
• In Uganda, access to justice remains elusive
for many people residing in rural areas.
• While the majority of advocates and civil
society organisations are based in Kampala,
many of the people who need the most help
live far from Kampala.
 Cont’d
• As such, many peasants in need of legal assistance
are either unable to reach the legal aid providers or
do not know where to access legal aid and legal
service providers.
• This problem is compounded further by general
challenges faced in organizing community outreach
programs.
• Related challenges include a dysfunctional
transport infrastructure and communication
barriers.
 Recommendations
• Poor people also need a legal and judicial
system that they can access – one that
ensures that their legal entitlements are
practical, enforceable and meaningful.
• More emphasis should be placed on
community outreach programs that build
awareness on basic legal rights such as land
ownership and inheritance.
 Cont’d
• More legal and human rights awareness
programs should be introduced in schools
especially in the rural areas.
• The importance of access to justice, legal aid
and pro bono services should be emphasized
at the law school level.
• This exposure should include field activities in
order to ground future advocates in the
importance and rewards of public service.
 Cont’d
• Consideration should be given to providing
legal aid desks at Police Stations and police
posts.
• These would be vital contact points for
persons reporting cases on any form of human
rights infringement, especially for victims that
are unaware of how to proceed in following
up their cases or seeing to it that justice is
done.
 Cont’d
• Legal aid service providers should rigorously
undertake more training of paralegals at the
sub-county and parish levels so as to make it
easier for persons in far-to-reach areas to
know how to access justice through members
of their own local communities.
• This will also help to alleviate the
communication barriers.
 Cont’d
• Lawyers with a reluctance towards pro bono
practice should be encouraged to take on law
school interns or Bar Course students to
handle pro bono cases.