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Granting legal aid in criminal matters: The interest of Justice test

Granting legal aid in criminal matters: The interest of Justice test. Dr. Donald Rukare National Legal Aid Conference 2011 Speke Resort Munyonyo 27 October 2011. Menu. Key argument Define the Interest of Justice test Some facts and figures

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Granting legal aid in criminal matters: The interest of Justice test

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  1. Granting legal aid in criminal matters: The interest of Justice test Dr. Donald Rukare National Legal Aid Conference 2011 Speke Resort Munyonyo 27 October 2011

  2. Menu • Key argument • Define the Interest of Justice test • Some facts and figures • Challenges of granting legal aid that impinge on the interest of justice test in Uganda • Recommendations

  3. Key argument • The present legal aid modalities in criminal matters in Uganda do not adequately meet the interest of Justice test.

  4. Interest of Justice Test – draft legal aid Bill - UGANDA • Indigent person may not be able to understand the court proceedings or present their case • Indigent person is a child, woman, illegal immigrant, refugee, asylum seeker, internally displaced person suspect in criminal proceedings, prisoner, aged, member of a minority group, person with a s serious health condition (including HIV/AIDS), mentally or physically disabled or a worker • Indigent person is likely to lose their liberty or livelihood?

  5. Interest of Justice Test – draft legal aid BILL - UGANDA • Indigent person is a victim of a crime • Indigent person is a child in need of protection • Case involves a a substantial question of law involved ? • Proceedings may involve the tracing, interviewing or expert cross examination of witnesses • The court is of the opinion that the person before it cannot have a fair trial unless the person receives legal representation

  6. Interest of Justice Test • Determine whether an applicant is entitled to legal aid based on the merits of the case • The seriousness of the offence and severity of the sentence ( ICCPR) • Legal Aid should therefore be targeted to those who need it most, where it is justified. • Who are these? The poor who cant afford legal representation

  7. Some facts and figures • 1345 advocates for population of approx 30 million 1: 22,305, 1:27,000 (Doctors), 1:1,000 (police), 1:65 ( teachers) • Legal fees for a criminal matter range from UGX 200,000 to UGX 20m+ • 32,000 prisoners – 52% on remand – average stay on remand 15 months, petty offenders – 4 months • Uganda Prison Services (UPS) spends UGX 4,000 per day on a prisoner = UGX 128,000,000 per day • Uganda Police Force running a separate prison service with most having no access to legal aid

  8. Challenges of granting legal aid that impinge on the interest of Justice test • Limited legal aid providers State brief system [ art: 28(3) (e) Constitution of Uganda] Institutional legal aid i.e. Uganda Human Rights Commission Civil society /NGOS Pro bono services by lawyers/advocates Law students at LDC under supervision Ad hoc compassionate legal aid

  9. Challenges of granting legal aid that impinge on the interest of Justice test • Question of determining who qualifies or deserves legal aid [ Poor Persons Defence Act, Legal Aid Policy, Legal Aid Bill] • Legal Aid has been out sourced to NGOs • Heavy reliance on development partners • Clients do not trust the legal aid providers motives • Invisible legal aid system in the prison service • Lack of awareness of peoples human rights • Limited access to some of the accused and/or lack awareness of the problem

  10. Recommendations • Legal Aid policy and Legal Aid Act need to be passed • Broaden the scope of State funded legal aid, progressive realization • Encourage use of para-legals but this needs to be regulated • Legal insurance • Judiciary should be more proactive • Adopt creative solutions like mobile legal aid clinics synchronize to the circuit and criminal sessions, help toll free lines • Strategic Interest case to compel state to provide legal aid

  11. Conclusion • It is imperative that the State takes its obligation to provide legal aid seriously and commit to respecting and fulfilling this obligation

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