Access to justice and the international law standards

4.2.2 The contribution of the organized legal profession in access to justice through legal aid

Improving laws and building the capacity of lawyers to use those laws effectively is critical to protecting basic human rights. But for many, those rights are meaningless without access to justice.¹⁶⁴ It is commonly acknowledged that international conventions guarantee poor people legal assistance by assigned counsel free of charge when the interests of justice so require. But the scope of that guarantee should be understood in domestic setting. As said above, an accused person does not have an absolute right to choose the lawyer who represents him on legal aid.¹⁶⁵ The same situation prevails in Rwanda. Here, the better organised legal profession has sidled to the centre of the delivery of legal aid to the needy through pro bono¹⁶⁶ services. This is a replication of the situation in the United States, for example, where pro bono duty has always been a part of the legal profession.¹⁶⁷

Leo Milonas who has extensively studied the legal aid system in United States notes¹⁶⁸ that the Model Rule of Professional Conduct states that a lawyer should aspire to serve at least 50 hours per year of pro bono work.¹⁶⁹ He stressed that in the United States membership in the bar is a privilege burdened with conditions .... [An attorney] is received into that ancient fellowship for something more than private gain?. ¹⁷⁰ He becomes an officer of the court, and like the court itself, an instrument to advance the ends of justice.¹⁷¹

164 C Arup Defining pro bono: Models and Considerations School of Law and Legal Studies La Trobe University 15.

165 M Wladimiroff Representation and legal aid, the international Society for the reform of criminal law, available at http://www.isrcl.org/Papers/Wladimiroff.pdf, accessed on 15 August 2009.

166 Pro bono is one of the charitable legal aid models identified by Alan Paterson generally used to describe professional work undertaken voluntarily and without payment as a public service. See details in A Paterson Legal Aid at the Crossroads? (1991) 10 Civil Justice Quarterly 124.

167 See details Milonas, supra note 30, 1.

168 Ibid. p. 1.

169 Article 6.1 of the Model Rule of Professional Conduct in the Unites States of America adopted in 2004 available at http://www.law.cornell.edu/ethics/aba/current/ABA_CODE.HTM, accessed on 15 August 2009.

170 Milonas, supra note 30, 2.

171 Ibid. p.1.

It is submitted that a system of mandatory or volunteer pro bono or pro deo activities could provide a necessary safety net to legal aid systems, both in developing and developed countries. Thus, legal aid designers, especially bar leaders, should consider making legal aid mandatory within the legal profession in Rwanda. The pro bono facility¹⁷² though should not be misconstrued as means of relieving the state of its responsibility to fund access to justice.¹⁷³ It is important for the legal profession to promote and provide pro bono¹⁷⁴ services. Accordingly, it should be stressed that pro bono work can never displace an adequately funded, well-staffed, government-supported legal services programme for the poor. There should be a significant commitment from the state, in collaboration with private lawyers, for such a collaborative effort to succeed.

4.2.3 Other important aspects of a legal aid system

Legal aid designers argue that a functional justice system should identify and quantify the legal needs of low-income members of that community. ¹⁷⁵ These issues are key to accurate identification of a set of priorities in a legal aid system,¹⁷⁶ and go some way towards ameliorating the difficult task of choosing an ideal delivery-model from the broad range of possible options. In this regard, the needs of the poor must always remain central to the selection process.¹⁷⁷ It is vitally important therefore that decisions regarding the use of the limited resources available for legal aid should be based on an in-depth understanding of the legal needs of low-income people. A legal aid system should thus focus on client needs, their range, and their diversity. A vigorous legal aid system should also monitor the changing landscape of client needs. The difficulty of identifying needs and their changing nature speaks to the importance of developing and enhancing the systemic ability to identify and measure them.¹⁷⁸ It is thus fundamental that allocation decisions regarding the limited resources of legal aid should flow from an in-depth understanding of the legal needs of low-income people.

172 In Rwanda this is called Pro Deo.

173 See ample details about this responsibility, supra Chapter II.

174 For more details about Pro Bono See supra note 166.

175 J McCamus The Ontario Legal Aid Review: A Blueprint for Publicly Funded Legal Services, available at http://www.attorneygeneral.jus.gov.on.ca/english/about/pubs/olar/ch11.asp, accessed on 10 August 2009.

176 Ibid.

177 Ibid.

178 Z Yuhong A Brief Comparative Analysis of Criminal Legal Aid in Canada and China (2006) 3.

Priority-setting for legal aid in situations of limited resources - a position that Rwanda faces - gives rise to a number of fundamental questions of public policy. Policy planners are thus confronted with the dilemma of whether to give priority in resource allocation to legal aid spending in criminal law, for example, or to channel this to family law. Also, the choice of legal services delivery models must be responsive and adapted to the legal context in which services are required and the geographic context where they must be provided. These caveats prepare the road map upon which a brief analysis of legal aid systems in other countries can be conducted with a view to finding a coherent approach that can be extrapolated to suit the needs of the Rwandan community.