Legal aid for the poor
What have we learnt?
What does the delivery of legal aid to the poor depend on and what
determines its nature and extent? What determines 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 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. Whereas 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 per person.
The size and structure of the legal profession in a country will determine
whether there are sufficient lawyers to serve the needs of the poor and
whether 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. For instance,
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. Although the
South African Legal Aid Board has been in existence for over 30 years,
over sixty per cent of the more than one million cases handled since 1971
have been after 1994, research shows. The financial and administrative
cost of these demands has compelled the Board to change from a predominantly
judicare referral system involving private lawyers to one that employs
its own salaried lawyers.
The nature of the national legal aid structure will determine how effective
the delivery of legal aid services is to poor people. For example, South
Africa has tried a variety of methods of delivering legal aid - some borrowed
from other countries and some home grown. These include 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 learnt 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.
David McQuoid-Mason
Howard College School of Law
University of Natal
Durban 4041
South Africa
T +27 (0)31 260 2189
F +27 (0)31 260 2559
mcquoidm@nu.ac.za
See also
'Access to justice in South Africa', Windsor Yearbook of Access to Justice
230, 17 by David McQuoid-Mason, 1999
'The delivery of civil legal aid services in South Africa', Fordham International
Law Journal, Symposium S 111, 24, by David J McQuoid-Mason, 2000
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