LEGAL AID BILL STILL UNDER DRAFTING PROCESS

MBABANE - The Ministry of Justice and Constitutional Affairs is still in the process of drafting the much awaited Legal Aid Bill.

The Bill seeks to ensure legal representation in courts for those who cannot afford to pay for their own attorney. Legal aid means the provision or accessibility to free, qualitative and sustainable legal information and education, legal training, legal assistance, legal advice, alternative dispute resolution, legal representation and other related and incidental services by a legal aid provider, to indigent and vulnerable persons, victims and witnesses in criminal, civil and other non-criminal matters, subject to certain limitations.

According to contents of the Legal Aid Bill, the shall cover, among other things child, welfare matters, independent representation for minors with separate interests from those of the  parents or guardian, proceedings to prevent or relieve gender-based violence (GBV) (including domestic and sexual violence and abuse), divorce aggravated by domestic violence, maintenance proceedings, divorce nullity proceedings, division of matrimonial property, paternity and adoption, abuse or violation of sexual and reproductive rights among other items.

Reveals

The Bill further revealed that land conflicts administrative law matters, which present real jeopardy to liberty, livelihood, health, safety, sustenance or shelter, labour rights, welfare, unemployment, insurance, housing, pension, education, and human rights cases would also be covered by Legal Aid. The Legal Aid Bill establishes the legal aid system, which provides an aid whose costs are defrayed principally out of funds provided by the State, in accordance with its financial means and which is administered by a Board. The Board is also established in accordance to the regulations of the Bill.

According to Communications Officer in the Ministry of Justice and Constitutional Affairs Ncobile Dlamini, the Legal Aid Bill was still under drafting process and they were hoping that it would soon be tabled in Parliament. Dlamini confirmed that the Ministry had a dream of ensuring that legal representation was available for everyone. She said the establishment of a Legal Aid system was in line with Goal 16 of the Sustainable Development Goals (SDGs) which encompassed the promotion of the rule of law and ensuring access to justice for all marginalised groups including children, women and persons living with disabilities.

Process

“The Legal Aid Bill is currently in the drafting stage and we are hoping that it will be tabled soon in parliament. The process started like other Bills, where consultations were made and stakeholders made contributions, and now the drafting process and the popularisation and other stages will follow. Legal aid services play a critical role in ensuring the attainment of Goal 16 of the SDGs,” she said. She added that the establishment of a Legal Aid system was also aligned with Priority 5 of Eswatini Roadmap which speaks to the reform of the country’s legal framework to facilitate legal aid.

Principal Secretary (PS) in the Ministry of Justice and Constitutional Affairs Lindiwe Mbingo said the Bill was at the Attorney General’s (AG) office for legislative drafting procedure.
“The Legal Aid Bill is set to manifest the Constitutional mandate of giving access to justice for all emaSwati. To this end the ministry is in consultation with the relevant stakeholders and has compiled the Draft Legal Aid Policy and Bill. These documents unpack the operations of the Legal Aid System in the country”she said. An expert who spoke on condition of anonymity said the enactment of the Legal Aid Bill into an Act would assist in the backlog of cases in the country’s courts.

He said the country was facing a backlog of cases because of the absence of Legal Aid services for destitute people facing criminal charges. “The position of our law at present is that the government is only forced by law to provide pro deo counsel where a suspect is indicted for an offence that may attract capital punishment upon conviction. The establishment of legal aid will greatly assist in enabling the judiciary to eradicate case backlogs as more criminal cases will be heard, no matter their size or depth of the offender’s pocket,” he said. The expert highlighted that legal aid was emphasised at various international treaties and declarations that provide for equality before the law and access to justice, that the country committed on.
These include the Universal Declaration of Human Rights, the International Covenant on Civil and Political Rights, and the Standard Minimum Rules for the Treatment of Prisoners and others.

“legal representation includes representation in court by a legal practitioner, salaried  legal practitioner, candidate attorney, crown counsel or pupil crown counsel or an accredited law student registered at the University of Swaziland or other institution recognised by the Law Society. The Board may do all things necessary to provide legal aid in accordance with its functions under this Act,” reads the Bill. Some of the functions of the Board as enshrined in the Bill include granting legal aid in accordance with or without conditions, contracting legal aid work to legal practitioners in private practice on terms and conditions the Board may consider fit and appropriate. The Board further has a duty to enter into co-operation agreements with non-governmental organisations, university law clinics or law departments or any other person or bodies engaged in providing legal aid.

Co-ordination

“Establishing mechanisms for the effective administration, coordination and evaluation of legal aid services; undertaking inquiries or investigations which the Board considers expedient, in order to discharge its duties and functions and disseminating information regarding the national legal aid scheme,” further reads the Bill. The Bill also gives powers to the Board to receive donations of funds, materials and technical assistance in furtherance of its functions, requesting and obtaining the assistance of the Minister, public institutions and other institutions or bodies as may be necessary, charging and collecting fees for programmes, publications, seminars, documents and other services provided by the Board. The activities of the Board shall be financed by a Legal Aid Fund consisting of monies appropriated by Parliament, generated by the Board in the course of its activities, grants, donations, bequests or other contributions made to the Board.

The Bill further indicates that legal aid was a right subject only to a transparent and reviewable assessment of need and that the provision of legal aid to foreign nationals should conform to the requirements of the Vienna Convention on Consular Relations and other applicable laws. Prior to any questioning and at the time of deprivation of liberty, a person shall  be informed of that person’s right to legal aid and other procedural safeguards, as  well as of the potential consequences of voluntarily waiving those rights.

Legal

Information on rights of a person appearing before court and on legal aid services shall be made available and accessible to the public, free of charge.  The Board shall ensure that effective legal aid is provided promptly at all stages of the civil, criminal and other non-criminal justice process,” reads a part of the Bill. Part of the Bill also requires that in the interest of justice, an indigent person who was arrested; detained or accused of a crime, be admitted to his or her right to legal information, assistance and advice. It further requires that such a person be given legal representation.

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