What does the delivery of legal aid to the poor depend on and what determines its nature and extent? What decides whether a country has a sufficient supply of legal aid lawyers to serve the poor? How does the nature of the national legal aid structure influence the delivery of legal aid?
The delivery of legal aid (a system for providing lawyers or other legal services, normally free of charge) and legal services for the poor in any country depends on the financial resources available, the structure of the legal profession, the nature of the criminal justice system the constitutional imperatives, the national legal aid structures and the modes of delivery used. The available financial resources will determine the nature and extent of the legal aid that may be provided in a country. It is estimated that developed countries such as the United Kingdom and United States spend about US$ 32 and US$ 2.25 respectively per person on legal aid. Developing countries like South Africa and Nigeria spend about US$ 0. 50 and US$ 0.002 respectively per person.
The size and structure of the legal profession will determine whether there are sufficient lawyers to serve the needs of the poor and if there is scope to employ salaried lawyers or law graduate interns as public defenders for criminal cases.
- Constitutional imperatives play a major role in ensuring that poor people have access to legal aid, particularly in criminal matters.
- In South Africa the establishment of a constitutional right to counsel in criminal matters at state expense, if substantial injustice would otherwise result, has meant that the state has had to increase its funding of legal aid fourfold since the first democratic elections in 1994.
- The South African Legal Aid Board has been in existence for over 30 years, but over sixty per cent of the more than one million cases handled since 1971 were after 1994.
- The financial and administrative cost of these demands has compelled the Board to change from a predominantly judicare (state-funded legal aid, paying private lawyers on a case-by-case basis) referral system involving private lawyers, to one that employs salaried lawyers.
- The national legal aid structure will determine how effective the delivery of legal aid services is to poor people.
- South Africa has tried several methods of delivering legal aid including charitable work by lawyers, judicare or legal aid-funded private lawyers, public defenders employed by legal aid, legal aid- funded law clinics and legal aid partnerships with paralegal advice offices.
Three lessons have been learned from the South African experience:
- For legal aid to be delivered successfully to poor people, lawyers must be paid for their services.
- For countries with limited resources, a holistic approach must be adopted that involves government, non-governmental organisations, university law clinics and private lawyers.
- Law graduate interns can be employed successfully as legal aid lawyers in rural law firms and as public defenders in legal aid-funded justice centres.
Summary adapted from www.id21.org
