Nigeria: A Review Of Salient Issues In The Interplay Between Legal Aid And Pro Bono Legal Services In Nigeria

Last Updated: 6 March 2018
Article by Adetola Ayanru

1. INTRODUCTION

The United Nations Principles and Guidelines defines legal aid as "legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when the interests of justice so require." Furthermore, legal aid is intended to include concepts of "legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes"1

Pro bono is short for "Pro bono Publico" a Latin phrase which means "for the public good". It is a term often used in the description of the provision of free legal services by lawyers to the people in need of such services, who are unable to afford it.

The difference between legal aid funded services and pro bono services is that whilst legal aid is funded or sponsored by the Government, pro bono services are provided by lawyers in their professional capacities without the anticipation or receipt of payment for such services.

The right to legal assistance is enshrined in the Constitution.2 However, in Nigeria, access to justice has remained an elusive ideal, particularly among its most vulnerable and disadvantaged: women, children, youth and persons with disabilities.

Not only is there low provision of legal counseling and representation, there is often a very poor understanding of one's legal rights to begin with. The benefits of legal aid include easy access to justice, promotion of the rule of law, an opportunity to give back to the society, provision of opportunities for lawyers to work on interesting issues that might not deal with their routine work. It also opens doors to areas of paid work outside usual business, contributes to the lawyers' or firms' positive image or reputation and can also provide an edge over competitors.3

1.1 State Subsidised Legal Aid

The Legal Aid Council of Nigeria (the "LACON"), under the Federal Ministry of Justice, was set up in 1976 by the Federal Government to provide free legal assistance and advice to Nigerian citizens who cannot afford the services of a private lawyer. The Legal Aid Act 2011 (the "Act")4 sets out the current rules and policies of the LACON. According to the Act, in most cases, legal aid shall be granted only to people whose incomes do not exceed the national minimum wage.

The LACON handles both relatively serious criminal cases such as: murder of any degree, manslaughter, malicious or willful wounding, inflicting grievous bodily harm, common assault, rape, affray, stealing and armed robbery. It also handles matters of aiding and abetting, counselling and procuring commission, being an accessory before or after the commission of the listed offenses.5

The LACON also handles certain civil cases including:

  1. Claims in respect of accidents and employee's compensation claims;
  2. Claims arising from breach of fundamental rights enshrined in Chapter IV of the Constitution;
  3. Civil claims resulting from criminal activities against persons qualified for legal aid under the Act.

Whilst the Act is loaded with ideals, desirable Legal aid in Nigeria is extremely limited with the prevalent reason being the availability of enough lawyers to meet the increasing need for free legal services in the country. There is also little funding, no publicity, inadequate information on access to justice, delays in the administration of justice and a general lack of empowerment of the LACON to provide adequate legal aid, the purpose for which it was created.

1.2 Private Law Firms and Pro bono Services

No Law requires or mandates legal practitioners in Nigeria to engage in or provide pro bono services, although the 2009 Pro bono Declaration for Members of the Nigerian Bar Association6 (NBA) states that members of the NBA have a responsibility to provide pro bono legal services due to the role of the legal profession as a facilitator of justice and equality in any legal system.

The declaration states that members should commit to provide, on a pro bono basis, "more than 20 hours or three days of legal services per individual lawyer per annum, or in the case of law firms, institutions or other groups of lawyers, an average of more than 20 hours per lawyer per annum."7

In May 2015, the NBA made a further Pro bono Declaration,8 which charged legal practitioners to provide pro bono legal services to at least five indigent individuals, groups of persons or communities annually.

The declaration also reiterated its drive to reinforce the profession's commitment to the provision and expansion of pro bono legal services by the establishment of a National Pro Bono Centre dedicated to the delivery of pro bono legal services in public interest as well as advocating and promoting within the profession, the recognition and promotion of pro bono legal services as part of legal practitioners' ethical standards and obligations.

1.3 The Intersection between the Legal Aid Council of Nigeria, Private Legal Practitioners and other Justice enabling Institutions

In line with its powers under the Legal Aid Act9 it became necessary to devise strategies to foster synergies between the Legal Aid Council and private legal practitioners because the LACON in its current state is unable to achieve its mandate of providing qualitative and quantitative service to the teeming millions of poor and vulnerable members of the public.10

Even though the Government funds Legal aid, while pro bono services are uncompensated, pro bono services are a necessary supplement to legal aid because unmet needs continue to exist in every society.

To simplify access to justice, it has been recommended that the Government works closely with pro bono service providers to ensure legal needs are met as best as possible.11

The challenge of providing legal assistance requires the participation of a variety of legal service providers as well as partnership with a wide range of stakeholders for the actualisation of a just and fair criminal justice system.

Free legal services by lawyers will not solve the problems of access to justice as justice entails more than just access to a lawyer. Indeed, access to a lawyer is merely an aspect of the wider justice delivery process. For provision of pro bono legal services to impact on the speed and quality of justice delivery, the investigating, adjudicating and prosecutorial agencies need to actively embrace their roles. Other stakeholders in the adequate discharge of the mandate of the Legal Aid Council of Nigeria are as follows:

  • The Nigeria Police Force
  • The Ministries of Justice
  • The Federal and States Judiciaries
  • Nigerian Prisons Service

The Strategy for the Implementation of LACON's Mandate.

In order for the mandate of the Legal Aid Council of Nigeria to be fully implemented, the LACON monitors the activities of the legal aid providers as well as makes provisions for ways to easily access the legal aid services as anticipated under Section 17 of the Act.12 That section stipulates as follows:

17. (1) The Council shall maintain a register of non-governmental organisations and law clinics that are engaged in the provision of legal aid or assistance to persons who are entitled to legal aid under this Act.

(2) The Council may partner with or otherwise engage the services of such organisations in a manner consistent with the mandate of the Council.

In order to achieve the above, the Legal Aid Council has devised the following strategies:

  1. Strengthen the national database on legal aid lawyers at all the state offices of the Legal Aid Council of Nigeria.
  2. Ensure the effective utilization of the National Database on Legal Aid and the Clearing House System to:

    1. Assess legal aid needs across the country
    2. Identify legal aid providers across the country
    3. Match those requiring legal aid to available legal aid providers
    4. Identify existing gaps for example where there are no or inadequate legal aid providers to address existing legal aid needs or where there are legal aid providers for fewer persons requiring such services.
    5. Monitor the progress made on cases assigned to LACON lawyers and other legal aid providers.
    6. Advocate for support and funding of legal aid to locations and beneficiaries with clear evidence of unmet needs based on empirical data from the National Database and the Clearing House System.
  3. Establish a directory of service providers and make it accessible to the general public.
  4. Map and regularly assess the current legal aid needs and available legal aid services and assign legal aid services to address the observed needs/gaps.
  5. Produce and disseminate annual reports on the National Database and Clearing System to various stakeholders and utilise these reports in:

    1. Providing incentives to legal aid providers.
    2. Encouraging synergy building, coordination and partnership with and amongst legal aid providers.
    3. Show case organisations and individuals who have assisted or collaborated with LACON in the discharge of its mandate, and hopefully create more recognition and visibility for these to lead hopefully to attracting increased funding and other support from development partners, philanthropists, government agencies and individuals.13

CONCLUSION:

The world is evolving and technological innovation, solutions and automation are also being deployed in facilitating the development of access to Justice. There are strides being made globally and locally to facilitate access to legal aid. An example is the Global Legal Hackathon Event14 which is hosted worldwide.

At the just concluded legal hackathon which was hosted by the law firm of S. P. A. Ajibade & Co, the winning team15 designed an application which is intended to create a database aimed at uniting lawyers and other active players in the criminal justice system to synergize the provision of legal representation/services to inmates yet to face trial with the aim of decongesting the prison system. All that is required is for lawyers to register on the application to gain access to an already existing database of accused persons/suspects and information regarding resolution of issues for such accused persons/suspects. The application may also be utilized by members of the public such as loved ones/interested parties to access information regarding persons in detention. The sponsorship of the development of such automated systems will go a long way in facilitating access to justice not just locally but also globally.

It is paramount for justice to be served to all notwithstanding the financial status of persons requiring justice. Legal aid/ pro bono services seek to ensure that legal services are provided at no cost for those without sufficient means or when the interest of justice so requires.

The support of all government, voluntary and private sector organisations (NBA, Non-governmental organisations, faith-based organisations, and educational institutions and Law clinics in Law faculties) are required to make the delivery of effective legal aid service in Nigeria a reality.

The former chairman of the Legal Aid Council Governing Board, Chief Bolaji Ayorinde SAN, has aptly expressed the view that: "The policy direction must elevate legal aid to the level of a fundamental right of deserving citizens. It must not be seen as charity for the poor but a fundamental right.16

Footnotes

1 United Nations (2014), Early access to Legal Aid in Criminal Justice Processes: A Handbook for Policymakers and Practitioners, New York, at p. 9.

2 Section 36 of the Constitution of the Federal Republic of Nigeria 1999, CAP1 Laws of the Federation of Nigeria 2004, as amended.

3 Guidance Manual for Enhancing Stakeholders' Partnership on Pro bono Legal Services in Nigeria.p. 9.

4 The Legal Aid Act 2011 (CAP L9) Section 1, preamble.

5 The Legal Aid Act 2011 (CAP L9) Second Schedule, p. 11.

6 https://wwwinternationalprobono.com/resources/attachment.163155

7 Pro bono Declaration for members of the Nigerian Bar Association (Office of the President of the NBA), p. 2.

8 http://www.nigeriabar.com/mobile/2015/05/pro-bono-declaration-for-members-of-the-nigerian-bar-association

9 The Legal Aid Act 2011 (CAP L9) Section 14 and Section 18.

10 Guidance Manual for Enhancing Stakeholders' Partnership on Pro bono Legal Services in Nigeria: Foreword by Mrs. Joy Bob-Manuel, Director General, Legal Aid Council of Nigeria, p. 5.

11 Guidance Manual for Enhancing Stakeholders' Partnership on Pro bono Legal Services in Nigeria p. 9.

12 Legal Aid Act, 2011 (CAP L9).

13 The National Legal Aid Strategy of Nigeria 2017-2022 (A Publication funded by the European Union and Implemented by United Nation Office on Drugs and Crime) p. 10.

14 https://globallegalhackathon.com (A hackathon is an event where people come together to collaboratively build and launch mobile or web applications aimed at solving a particular problem. Participants usually work in small groups over a couple of days. The goal is to design a prototype or proposal at the end of the hackathon to present in front of a panel of judges and a winner will be chosen).

15 The Lemon Aid group(@lemonaidng)

16 Foreword to, The National Legal Aid Strategy of Nigeria 2017-2022 (A Publication funded by the European Union and Implemented by United Nation Office on Drugs and Crime) p. 9.

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