Triumph for Access to Justice

The Indiba-Africa Group recently completed the development of a National Legal Aid Policy and Legal Aid Bill for Swaziland on behalf of the High Court and UNDP-Swaziland.

On 17 and 18 May 2013, in Piggs’ Peak, Swaziland, after an intensive two-day period of deliberations, stakeholders representing the Policy and Programme Coordination Unit in the Prime Minister’s Office, the High Court of Swaziland, the United Nations Development Programme (UNDP) in Swaziland, the Department of Justice, the Royal Swazi Police, Correctional Services and Civil Society Organisations, unanimously and without reservation, validated the Draft National Legal Aid Policy and the Draft Legal Aid Bill for Swaziland. The representatives further endorsed such Policy and Bill for immediate submission to the Attorney-General’s office with the intention that they be tabled before Cabinet as a matter of urgency.

The development of the Policy and Bill was promoted by the High Court of Swaziland and supported by UNDP in Swaziland.

Anil Naidoo, who developed the Draft Policy and Bill, said, "We have been both privileged and honoured to be a part of this historical process. The fact that it took only six months from the start of the literature review to the validation of both the Draft Legal Aid Policy and the Draft Legal Aid Bill is indicative of the profound commitment of all stakeholders involved in the process. This support has resulted in the development of a very progressive and pragmatic legal aid framework, which builds upon and further expands the gains made by the validated Ugandan National Legal Aid Policy and the Sierra Leone Legal Aid Act of 2012. The Draft Legal Aid Policy and Draft Legal Aid Bill for Swaziland will complement the Children's Protection and Welfare Act of 2012 and once assented to, the Sexual Offences and Domestic Violence Act of 2009, which was passed in June 2013.

The draft legal aid documents for Swaziland are based upon regional and international best practice, and recognise that a national legal aid system must be administered by an independent legal aid entity, broadly representative of State and Non-State Actors in the legal aid arena. In addition, the documents also provide that Non-State Actors play a significant role in complementing State provision of legal aid; that the legal aid governing body coordinates the activity of all State and other accredited and collaborating legal aid service providers; and that legal aid is underpinned by a human rights approach that adequately provides for vulnerable groups beyond that of indigence, such as women and children, among others.

The Policy and Bill are underpinned by a ‘mediation before litigation’ approach, thereby ensuring that parties have access to an integrated alternative dispute resolution mechanism. The documents recognize the significant role Community Advice Offices and community-based paralegals have played and will continue to play in enhancing access to justice for indigent and vulnerable groups. In accordance with this recognition, and in order to maximize their impact, the Policy and Bill provides for accredited community-based paralegals to provide legal information, assistance, advice and mediation to legal aid recipients in appropriate matters.

In addition to mandatory and monitored pro bono services to be provided by attorneys in private practice, the Policy also suggests the expansion of the definition of legal practitioners to include appropriately qualified and admitted attorneys, who while being members of the Law Society, are employed by civil society organisations. This provision will allow them to represent legal aid clients in court, on the basis that no fee will be charged.

The Policy places significant emphasis on recommending creative solutions for the long-term sustainability of legal aid and also provides for a budget and a road map for the implementation of a national legal aid scheme in Swaziland.

Senelisiwe Ntshangase, representing UNDP in Swaziland and who was also the project manager for the process, stated that, “Swaziland is the only country in Southern Africa, that does not have a national legal aid system. When this process was initiated in 2011 following the feasibility assessment of establishing legal aid in Swaziland, one never thought that this milestone would be reached so quickly. We are grateful to our colleagues at the High Court who have supported this initiative and made it possible. Access to justice anchored in human rights is a key priority for the Country Office.  We look forward to the adoption of the Policy and Bill by the Executive so that operationalising both documents can begin.

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