29 December 2017

Gambia: Essential Legal Aid and Access to Justice in the Gambia

Mr. Charles Thomas is acting executive secretary of National Agency for Legal Aid (NALA). It was in the context of the various on-going national conferences on justice and access to justice that we caught up with him to seek his answers to some questions on the subject.

The Point: Mr. Thomas, you are said to be the prime mover of the establishment of NALA from its inception in 2010/2011. There has been lots of talk in our current situation about legal aid and access to justice, and we would like to have some information and clarification on this same subject, if you would oblige?

CT: Yes, regarding legal aid and access to justice, I myself have been hearing a lot in current times but more significantly I have been working a lot on it, and would have something to say on issues as they stand. Yes, I will oblige.

The Point: Maybe one can start a little bit from the beginning. Why has legal aid only been commenced in The Gambia in the past few years. Other countries in Africa, especially in our sub-region had started legal aid provision before this time?

CT: Well actually, legal aid was in existence in The Gambia since colonial times. It continued to prevail into post-independence and into the republican constitution in 1970, as well as the 1997 Constitution.

The Point: It was only in 2008 that special Act was passed for legal aid?

CT: This is true. In fact the Legal Aid Act 2008 was passed for a specific reason. You know, pre-2008 legal aid was restricted to capital offences only, that is to say murder and treason, chiefly. From English law and English history, both these offences were punishable by death, and this found its way into our own political and legal history. They were later given precise expression in the Capital (Charges) Act and the Poor Persons (Defence) Act 1963.

The specific purpose of the 2008 Act was to de-limit this restricted application by widening the scope of legal aid to apply similarly to all criminal and civil cases to persons entitled, and to all cases of children who come in conflict with the law. The delimitation had as its immediate objective, bringing unlimited access to justice to the doorstep of all Gambians, particularly the indigent and vulnerable of the society.

The Point: The application seems very wide indeed, is the objective being achieved?

CT: I have to agree that the mandate is extremely wide, even wild, given the underlying realities. For only three (3) lawyers to provide the required services, namely, legal representation advice and assistance in all courts of The Gambia, prisons and police stations country-wide, is unimaginable. Yet NALA lawyers have been maintaining the struggle. As we speak the current caseload of the Agency stands at 155 cases in the superior courts and children's courts combined. Some of these cases are holding in Banjul; others in Kanifing, Brikama, Mansakonko and Basse. Such is the geographical distribution of NALA's case coverage. The issue of legal representation put aside, the same Agency and the same lawyers have to be engaged also in mobile legal aid clinics, which is the Agency's outreach program, to address the needs of the regional communities in all five regions, all districts in all five regions, as many villages as practicable. This is common knowledge. Furthermore, lawyers supervise complaints or disputes of Walk-In Clients at the office level. In 2016 and 2017 there have been 1,321 registered clients recorded at office and at outreach levels. Needless to say, numbers in the Agency's various areas of intervention keep escalating on weekly or monthly basis.

The Point: What has happened to the expectations of the 2008 Act?

CT: The expectations are not realizeable under the present arrangements. We have to pin our hopes on the new Government to make things work. Firstly, how can a skeletal Agency of three legal practitioners be expected to take care of all criminal and civil cases in our jurisdictions in addition to the already challenging volume of capital offences, and cases in the children's court, as I already mentioned?

The Point: Is legal personnel the main concern of the Agency?

CT: Of course other major constraints exist namely logistics and funding. The Agency try to do all the cross-country travelling and local office runs with three quite old vehicles that are uneconomical to maintain, acute lack of adequate funding and material resources. But yes, personnel inadequacy is the chief operational concern.

The Point: You state in relation to all civil and other criminal cases that aid is given to persons entitled, if I got you right. How does this work?

CT: This exposes another weakness or failure in the application of the new Act. The Act provides that those entitled to assistance in civil and in all criminal cases outside of capital offences, are persons quote "who earn not more than the minimum wage as Government may specify", unquote. But who knows what the minimum wage is that Government has specified or can it, or will it? Furthermore a means and merit test is required for determining eligibility, but the problem arises how does one measure the earnings of non-income earners of the Gambia? These and other questions. I believe the Act needs to be revisited for appropriate review. We seriously need to give out a consultancy as soon as possible in that respect, and we have to count eagerly on the new Administration to do so. I for one, cannot help but think that the previous Administration did not pay particular attention to these questions and to concomitant issues of the requisite budgetary allocations, of manpower, material and logistical resources. By so doing, the very object of expanding the old law as envisaged in the new Act of 2008 has been self-defeating. I do not know whether the previous administration merely intended to impress the international community or to confuse the Gambian public, or both.

The Point: But all is not lost. Let us come to achievement of the Agency from establishment to date. Maybe there are positive results there. What measures did the Agency take to surmount the difficulties created by the new Act and what have been some of the major achievements?

CT: NALA has been driven by sheer resilience, resourcefulness, commitment, discipline and hard work of its very few lawyers. I have to state this because it is the truth and these people deserve the highest acknowledgement and commendation. Without them and their great sacrifices, NALA might have closed down long time ago.

Regarding the difficulties in implementation of the Act, what the Agency did at the outset was to divide the provisions of the Act into what was considered instantly attainable and what was not, and proceeded forthwith with the attainable, which is to say legal representation, legal advice and assistance at office level. This was followed with outreach programmes in the regions. This step was gradually consolidated by other-related programmes such as mobile legal clinics and the training of community paralegals for purposes of sustainability and continuity in the absence of NALA and/or UNDP. We also decided to develop collaborative linkages with other service providers and to open an official register of private legal practitioners who could support NALA efforts in pro bono services.

Matters like minimum Government wage, Means and Merit test for civil and all other criminal cases, were considered not immediately attainable given the low numerical strength of the legal staff and the low level of material and financial resources available to the Agency at this point in time. Consequently it was considered to shelve this aspect for the Agency's longer term development.

The Point: Your achievements?

CT: An average of 150 current cases each year in legal representation and approximately 40 concluded cases on annual average. In the area of legal advice and assistance at office level, in the regions, at police stations and prisons, 1,321 registered clients was recorded in our best year so far. Of course a statement should also be made that from the number of court cases and legal advice and assistance also provided, NALA has in fact made significant contribution in access to justice and also as well in the fight against poverty and the effects of poverty as contained in goals number 16 and 2 of the Millennium Development Goals now called Sustainable Development Goals.

People have associated legal aid only with access to justice, but the alleviation of poverty should not be lost sight of. The tens of thousands of dalasis that would have been used to pay the private lawyer, when saved can be used for other benefits in the family, for example education of children, food, health, housing and other development. I want to think that these are veritable and worthwhile achievements brought about by NALA.

The Point: Your remarks are noted. Now what are your last words on the subject of legal aid provision in the Gambia?

CT: Well, a wise man once said that when you tell your story you must start from the beginning, and when you come to the end...... you stop! Those are my last words on the general debate.

The Point: Thank you, Mr. Executive Secretary.


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