Legal aid provision in criminal proceedings faces many challenges, including inadequate service providers and absence of law that governs the operations of such services. Our Staff Writer FAUSTINE KAPAMA reviews this important issue and reports...

ARTICLE 13 of the Constitution of the United Republic of Tanzania of 1977 (as amended), states that all persons are equal before the law and are entitled, without discrimination, to protection and equality.

As per this principle of the country's parent law, the issue of legal aid services is key and indeed very important in the provision of justice. It is one of the fundamental components of access to justice which must be met if a nation is to achieve equality before the law and equal access to justice.

A democratic society considers it necessary to provide some level of legal aid to the people, failure of which deprives them access to justice. Alternately, such people would be at a disadvantage in situations in which, for example, the state or a wealthy individual took them to court.

This would violate the principles of equality before the law. Provision of legal aid empowers citizens to understand their basic rights such as human and constitutional rights and freedoms. It enables them to defend themselves and contribute towards a well informed society whereby all people understand and pursue their rights without fear or favour.

The focus is to ensure equal access to justice to all as enshrined in the Constitution by provision of legal information and advice, mediation, negotiation and other alternative dispute resolution services, court representation and conducting legal and human rights awareness programme.

For many years now, legal aid in Tanzania has formed an integral part of the legal system ensuring access to justice for those who cannot otherwise afford it. However, the Tanganyika Law Society (TLS) Vice- President Mr Peter Kibatala says today, there is a limited number of lawyers who are competent enough to provide legal aid.

Mr Kibatala, who is also an advocate of the High Court, says that the TLS has a department whose members provide free legal aid, while the University of Dar es Salaam, the Faculty of Law, in particular, also has some members giving such services for free.

"But, considering the size of the population, legal providers from the two institutions, whether paid or unpaid, cannot cater for the required needs," he says. The youthful and soft spoken advocate also regrets that in Tanzania there is no legal aid legislation that provides guidance on enforcement and regulation of service provision, while there was an absence of a national strategy to provide people access to legal assistance.

He says the Legal Aid (Criminal Proceedings) Act, which is in place, is limited to persons facing capital offences like murder and treason. As a result, he says, poor people facing criminal offences have to employ lawyers to represent them or seek assistance .

Those covered in the Act get legal aid under Section 3 of the Act, which reads, "Where in any proceeding it appears to the certifying authority that it is desirable, in the interests of justice, that an accused should have legal aid in the preparation and conduct of his defence or appeal, and that his means are insufficient to enable him obtain such aid, the certifying authority may certify that the accused ought to have such legal aid and upon such certificate being issued the Registrar shall assign an advocate for the purpose of preparation and conduct of his defence or appeal."

Under Section 4 (1) of the same Act, the remuneration of any advocate assigned to an accused under the provisions of section 3 shall be determined by the certifying authority and shall be payable from the general revenue of the United Republic.

Subsection (2) of the provision shows that remuneration payable under this section shall not be less than 40,000/- nor more than 60,000/- in respect of each proceeding, or in respect of each accused where the certifying authority certifies that accused persons jointly tried should be separately represented.

A report on Baseline Survey of March 2012 on Tanzania Mainland and Zanzibar for Legal Services Facility prepared by ST Associates - Process Consultants and Facilitators, indicates that the existing laws need a review to facilitate the creation of favorable legal framework for legal aid service provision. The laws governing legal aid recognize the central role of lawyers and advocates.

However, the numbers of practicing advocates is small in proportion to the overall population, and in most cases those practicing advocates and lawyers are not available to respond to the legal aid on probono basis. Most people, according to the report, live outside the reach of lawyers who can provide them with legal assistance as the large majority of lawyers reside in urban centers.

The survey revealed that while legal aid services are being offered for all people with legal needs, some geographic areas are not reached. Service providers are concentrated in urban areas in some districts of the country, which prevents many potential poor clients from accessing legal services when needed. With the legal aid services provision regulated and implemented in the current pace, the expansion of coverage and quality of legal assistance cannot be attained.

Thus, the majority of poor and vulnerable people who are the potential clients will not be reached. The government of Tanzania is committed to the delivery of legal aid, as evidenced by the inclusion of the government's budgetary allocation for the Legal Sector Reform Program.

However, the report notes, allocated amounts are too small to carry out any meaningful legal aid. People living in rural areas have no basic understanding of their legal rights, which also contributes to lack or sometimes denial of access to justice within the justice system. It is suggested, therefore, that the government should ensure full responsibility for access to legal aid services.

Universities through law faculties and/or law schools have a long history of providing legal advice and legal representation to low income individuals who are underserved by advocates, or who have in particular, difficulty obtaining lawyers because of the nature of their legal problems.

Previously, legal officers and Lawyers on internship programme used to take up the cases with supervision from senior staff, but with the operationalisation of the Law School of Tanzania this is no longer a practice as Law students are required to undertake field work.

"The University of Dar es Salaam is restructuring the Legal Aid Committee in the School of Law to a Legal Aid Unit. The objective is to offer academic courses in legal aid and human rights," the report reads in part.

On July 2011 a contract was signed between the Government of Tanzania and the Government of Denmark to establish a Legal Aid Basket Fund through the Legal Services Facility. The goal of the Facility was to improve access to justice for vulnerable people on Tanzania mainland and Zanzibar.

In August last year, the Tanzanian government launched a Legal Aid Secretariat (LAS), which will act as a regulatory body for legal aid with Deputy Minister for Justice and Constitutional Affairs, Ms Angellah Kairuki, saying the issue of legal aid was key in realization of justice.

She pointed out that recently at the UN level, United Nations Principles and Guidelines on Access to legal aid in criminal justice systems has been adopted. Such development, she said, the issue of legal aid was not an issue at national level but also internationally.

The President of the TLS, Mr Francis Stolla, said the Secretariat was paramount in regulating legal aid and given the fact that there was no policy and law at the moment on the matter, the launch of the secretariat was a godsend. The Legal Aid Secretariat is body established to coordinate the Legal Aid Providers in Tanzania.

LAS operates under the leadership of the Legal Aid Providers. Currently LAS is funded by the pool of donors through the Legal Sector Reform Programme (LSRP) basket fund. LAS mission is to ensure greater coverage in provision of free quality legal aid services to all indigents residing in Tanzania.

Although it's still unclear, but hopes are high that the long-awaited Legal Aid Provision Bill will be tabled in Parliament month. The enactment of the law, expected to regulate issues related to the provision of free legal aid in the country, will open a new chapter, enabling Tanzania to implement meaningful reforms that will guarantee effective access to justice for all, including the poor and vulnerable.

While the process of setting up the Legal Aid provision Act has taken longer than expected, the enactment will enable Tanzania to join the list of few other African countries, which are trying to reshape their legal framework to incorporate free legal aid services for their citizens. Some of these countries are Malawi, Zambia, Sierra Leone, Uganda and Kenya, which have now free legal aid structures.

The operationalisation of the forthcoming legal aid law will assist millions of poor people in Tanzania to access justice, which remains problematic to date. Latest reports by independent legal organisations show that there are many Tanzanians - girls, women, persons with disabilities, the elderly and so on, who are subjected to different forms of violence, including extra-judicial killings pioneered by law enforcement agencies.