LEGAL AID - A TENET OF ACCESS TO JUSTICE
The Case of Women with Disabilities in
Post-Conflict Northern Uganda
LEGAL AID - A TENET OF ACCESS TO JUSTICE
THE CASE OF WOMEN WITH DISABILITIES IN
POST-CONFLICT NORTHERN UGANDA
DORAH CAROLINE MAFABI
PILAC WORKING PAPER NO. 2
JANUARY 2014
PUBLIC INTEREST LAW CLINIC
School of Law
Makerere University
P.O. Box 7062, Kampala
Tel: +256 414 531195
Web: www.pilac.ac.ug
Copyright © Public Interest Law Clinic, 2014
All rights reserved. No production, copy or transmission of this publication may be made without
permission.
No paragraph of this publication may be reproduced, copied or transmitted without written
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under any licence permitting limited copying issued by the licensing agency of Uganda.
TABLE OF CONTENTS ACRONYMS
..................................................................................................... i
ACKNOWLEDGEMENT .......................................................................... ii
ABSTRACT ..................................................................................................... iii
1. INTRODUCTION ................................................................................ 1
1.1 Conceptualizing Access to Justice ............................................................ 1
1.2 Women with Disabilities in Post Conflict Northern Uganda .................. 3
1.3 Defining Disability for purposes of this research ..................................... 6
1.4 Draft National Legal Aid Policy ........................................................... 6
1.5 Methodology ........................................................................................... 7
1.6 Scope of the study .................................................................................. 7
1.7 Overall objective of the study .................................................................. 8
1.7.1 Specific objectives ...................................................................... 8
1.8 Synopsis ................................................................................................. 8
2. LEGAL AND POLICY FRAMEWORK ......................................... 9
2.1 International and Regional Obligations ................................................... 9
2.1.1 Right to Non-Discrimination ................................................. 10
2.1.2 Right to Access to Justice ........................................................ 11
2.1.3 Right to Legal Aid ................................................................ 13
2.2 National Legal and Policy Framework ................................................. 15
2.2.1 Legal Aid in Civil Matters .................................................... 18
3. INFUSING THE STUDY FINDINGS WITH THE DRAFT
NATIONAL LEGAL AID POLICY ............................. 20
3.1 Understanding the Issue: Rationale ............................................................... 20
3.2 Policy Instrument Scan .................................................................................. 22
3.2.1 Interests of Justice Test .................................................................... 22
3.2.2 Means and merits test ...................................................................... 23
3.2.3 Economic and Social Rights Protection ............................................ 25
3.2.4 Regulating Legal Aid Service Provision ........................................... 26
3.2.5 Policy Gaps and Coherent Analysis ................................................. 27
(i) Time frame ............................................................................ 27
(ii) Concrete commitments ............................................................ 28
(iii) Existing Initiatives ............................................................... 28
(iv) Lack of controls, too much power! .......................................... 29
3.3 Are Women with Disabilities any nearer to legal aid with the draft
National Legal Aid Policy? ............................................ 29
3.3.1 Discrimination against Women with Disabilities .............................. 29
3.3.2 Lack of Rights Protection and Awareness ....................................... 31
3.3.3 Legal Protection options ................................................................... 31
4. CONCLUSION AND RECOMMENDATIONS ...................... 33
SELECTED BIBILIOGRPAHY ............................................................. 35
ACHPR
African Charter on Human and Peoples Rights
ACRWC
CESCR
African Charter on the Rights and Welfare of the Child
Alternative Dispute Resolution
Convention on the Elimination of all forms of
Discrimination against Women
Convention on Economic, Social and Cultural Rights
CRPD
Convention on the Rights of Persons with Disabilities
ICCPR
International Convention on Civil and Political Rights
Internally Displaced People
Justice Law Order Sector
Local Council
Lord’s Resistance Army
National Development Plan
Office of the UN High Commissioner for Human
Rights
Persons With Disabilities
United Nations Convention on the Rights of the Child
ADR
CEDAW
IDP
JLOS
LC
LRA
NDP
OHCHR
PWDs
UNCRC
ACRONYMS
ACKNOWLEDGEMENT
The financial support provided by the Democratic Governance Facility
(DGF) for the research and other activities resulting into this paper is
acknowledged. The research assistants from the Public Interest Law
Clinic (PILAC) at the School of Law, Ms. Sandra Oryema and Ms. Edith
Nabatindira are also acknowledged for their support in conducting field
interviews for this research. Also acknowledged are invaluable comments on
earlier drafts of this paper by Dr. Christopher Mbazira, Ms. Patricia Odong
and Dr. Maria Nassali of the School of Law, Makerere University. The
comments provided by the participants at the Research Validation Seminar
conducted on 27 September 2013 are also acknowledged.
th
ABSTRACT
Access to justice is the right of individuals and groups to obtain a quick,
effective and fair response to protect their rights, prevent or solve disputes and
control the abuse of power, through a transparent and effective process in
which mechanisms are available, affordable and accountable. Effective
realisation of access to justice can be achieved through provision of legal aid
services to the most poor, vulnerable and marginalised individuals. Legal aid is
the provision of free or subsidized legal services to eligible individuals or
groups; and is one of the most important tenets of access to justice. In
post conflict Northern Uganda women with disabilities are one of the most
vulnerable and marginalised groups –facing continued discrimination, social
exclusion and marginalisation. They are unaware of their rights and often do
not seek redress for rights violations.
While copious literature exists on the access to justice, legal aid and the rights
of women with disabilities; this is the first paper that interrogates whether
a proposed national legal aid policy will be able to deliver better access to
justice for women with disabilities. Uganda is currently is in the process of
finalising a national legal aid policy. The policy is drafted on the backdrop
of the vital need to streamline and strengthen legal aid service provision in
Uganda. The study was majorly qualitative involving desk review and
field interviews. The research found that many women with disabilities in
post conflict Northern Uganda were not aware of their rights; they faced
continued discrimination due to a general lack of human rights awareness in
the community. The proposed national legal aid policy is very strong on
regulating legal aid service providers and institutional establishment.
Unfortunately the draft national legal aid policy falls short and does not
guarantee access to justice for women with disabilities.
1. INTRODUCTION
1.1 Conceptualizing Access to Justice
Access to justice is the right of individuals and groups to obtain a quick,
effective and fair response to protect their rights, prevent or solve disputes
and control the abuse of power, through a transparent and effective process
in which mechanisms are available, affordable and accountable. Access to
justice does not only involve judicial recourse, but the availability of
accessible, affordable, timely and effective means of redress or remedies.
Access to justice encompasses recognition that everyone is entitled to the
protection of the law and that rights are meaningless unless they are
enforced. Traditional justice mechanisms that include informal conflict and
dispute resolution mechanisms and or systems operating at community level
and employing social-cultural norms and values to reach decisions and or
work with parties to achieve mutually acceptable results contribute to access
to justice.
1
2
3
4
Access to justice involves the following elements: (i) a framework of legal
protection setting out acceptable substantive and procedural standards; (ii)
legal awareness on the part of providers and users of justice services; (iii) the
availability of legal services needed to link needs to enforceable remedies,
including legal aid and counsel; (iv) adjudication of disputes that is fair and
effective; (v) enforcement or remedies; and (vi) transparency and oversight
of the operation of the system.
5
Access to justice is increasingly being recognised as one of the most
important basic human rights without which it would not be possible to
realise many
United Nations Development Programme ‘Access to Justice Concept Note’
(2011) 31. UN Committee on Economic, Social and Cultural Rights,
General Comment No. 3 (Ninth Session)
UN doc. EC/12/1998/24 par 2. Jon Robins ‘Access to justice is a fine concept’
2011 Available at http://www.guardian.co.ul/law. UNDP (n 1 above) 2. Danish
Institute for Human Rights Legal aid in East Africa: A comparison of the legal aid schemes used in
1
2
3
4
the region and the level of cooperation and coordination between the various actors (2011) 16.
5
of the human rights. Access to justice as a human right combines all of the
processes and mechanisms that ensure that this right is implemented in
order to provide a legal response to a problematic situation (human rights
violations) based on the law, whether on an individual or group basis. A
study by the Danish Institute for Human Rights (2011) recognises that
access to justice should focus on outcomes and remedies rather than merely
on institutions, and should involve elements such as:
6
7
8
[A] framework of legal protection setting out acceptable substantive and procedural
standards; legal awareness on the part of providers and users; the availability of legal services
needed to link needs to enforceable remedies, including legal aid and counsel; adjudication of
disputes that is fair and effective; enforcement of remedies and transparency and oversight of
the operation of the system.
Thus, focus on outcomes and remedies and not on structural institutions when
promoting access to justice can realise greater social transformation and social
justice. This is because priority is given to delivering justice in its different
forms, as opposed to delivering monuments of dispensation of justice. Access
to justice is a critical tool in promoting social cohesion, civic accountability,
combating discrimination and abuse of state authority. In its mature
application, access to justice champions human rights protection
and respect and builds individual and communal solidarity and confidence
in the justice system and what it stands for.
The question of access to justice for women with disabilities in post
conflict Northern Uganda then becomes a relevant discussion. This paper
interrogates the existing initiatives on access to justice to determine whether
they address the justice needs of women with disabilities in a post conflict
setting. This is against the backdrop that access to justice for women with
disabilities in Northern Uganda has been inhibited due to the erosion of law
enforcement and justice institutions. This has been compounded by the lack
of socialisation of laws and limited or absence of knowledge and
understanding of existing legal rights and remedies available.
9
10
6
Zahara Nampewo ‘Uphill progress or downhill degeneration? Local council courts and access to
justice for local users’ HURIPEC working paper No. 29 (2010) 5.
7
8
ASF Belgium, ‘How access to justice can help reduce poverty’ Available at http://www.asfquebec.
com.
Danish Institute for Human Rights (n 5 above) 16.
1.2 Women with Disabilities in Post Conflict Northern Uganda
During the period between 1986 and 2006, the Northern region of
Uganda was the scene of the longest armed conflict between the Lord’s
Resistance Army (LRA) and the Ugandan Army. During the conflict, the
LRA launched several attacks manifested through rape, gruesome killings,
land mine explosions and disfigurements of people by cutting off mouths,
noses, and ears. Women and girls were murdered; their deaths sexualized by
the cutting off of breasts, feotuses ripped from women’s wombs and their
sexual organs impaled. Eyes were pressed inside and many became totally
blind, burning of the huts left many with burns, the cutting off of
lips disfigured many and rendered them incapacitated to speak for the rest
of their lives. Deformities both physical and emotional still remain as scars
reminiscent of the brutality of humanity. The lack of and inadequate health
care infrastructure during the conflict also left many people susceptible
to epidemics including polio. Injuries arising from landmines were also
common and many became disabled as a result. The case of Jackie Atim is
an example of such victim; she stepped on a land mine when she was sixteen
years old during the war and had her leg amputated.
11
12
13
14
15
16
17
9
Office of the UN High Commissioner for Human Rights ‘Access to Justice in Northern Uganda’
(2008) 5.
1
0
UNDP (n 4 above) 33.
1
1
Sam Tindifa ‘Listen to the People! Towards and inclusive approach to the Peace Process in
Northern
Uganda’ (2006) 19.
1
2
Tindifa (as above) 20.
1
3
FIDA Uganda ‘In the multiple systems of justice in Uganda: whither justice for women?’ (2011) 9.
1
4
As above.
1
5
UN Peacebuilding Programme ‘Policing Post-Conflict Acholi sub-region: progress, challenges and
opportunities’ (2012) 45.
1
6
Internal Displacement Monitoring Center ‘Need to focus on returned and remaining IDPs in
transition
to development’ (2012) 5.
1
7
The names of the women with disabilities interviewed for this research have been changed to
protect
their confidentiality. Pseudonyms have therefore been adopted.
In the present post-conflict setting, many women with physical, sensory,
mental and intellectual disabilities are facing a more complex process of
returning and relocating to their homes than their more able bodied
neighbours. Many women with disabilities continue to face difficulty
carrying out their daily work and have to rely on support from their
dependants and relatives. This is as a result of the erosion of the community
networks that might have bolstered women with disabilities in the past. This
reality has isolated many women with disabilities and perpetuated their
invisibility in their communities and excluded them from access to justice
processes. Stella Arach recounts about life in the camps, “…life in the camps
was much easier than life today. In the camps I had the support of my family and friends,
but now I don’t have anyone to help me…”
18
19
20
21
While the community structures in some cases provided protection for
women with disabilities, in other instances this was not the case. A 2010
Human Rights Watch Report indicates that the suffering of the women with
disabilities was not only at the hands of the rebels but also at the hands of
strangers, neighbours, family members and care-givers. Due to cultural
beliefs surrounding disability, the immediate structures of support for
women with disabilities were in most cases the prime violators of their
rights. The dependence on care-givers, personal assistants and family
members prevented women with disabilities from seeking redress for
violations suffered. Joyce Atim recollects the hostility she faced from her
in-laws who claimed she was a burden to the family: “They often shouted at me
saying I was not productive and a burden to their son”. According to Grace Akello,
her-in-laws said she was “…not a woman because she was disabled, she would not be
able to cultivate the land or contribute to providing food for her household…”
22
23
24
1
8
Human Rights Watch ‘As if we weren’t human’ Discrimination and Violence against Women with
Disabilities in Northern Uganda’ (2010) 6.
1
9
Isis-WICCE ‘Women’s experiences of armed conflict in Uganda Gulu district 1986-1999’ (2001)
51.
2
0
2
1
Human Rights Watch (n 18 above) 22.
Stella Arach’s house in Bungatira sub-county, Gulu district interviewed on Tuesday 21st May 2013.
2
2
Human Rights Watch (n 20 above) 27.
2
3
Marianne Schulze ‘Understanding the UN convention on the rights of persons with disabilities
-Handbook on the human rights of women with disabilities’ (2010) 65.
2
4
Grace Akello’s house in Peace and division sub-county, Gulu district Wednesday 22nd May 2013.
The discriminatory attitudes have remained a major
barrier to the full inclusion of women with disabilities
in efforts to rebuild a functioning society. They face
several discriminations and are often excluded from
community meetings and rarely take part in decision
making processes. Women with disabilities remain
vulnerable to sexual and gender based violence
because of social exclusion, limited mobility, and
lack of support structures, communication barriers,
and social perceptions that they are weak, stupid or
asexual. This reality has relegated them to
unprecedented levels of low self esteem and
psychological and emotional distress.
The
frequently abandoned women with disabilities face
isolation and abuse as the country begins to move
forward without them.
25
26
27
28
29
Although peace has returned to the Northern part of
Uganda, many women with disabilities continue to
face the physiological war of stigma and
discrimination within their communities. The lack of
support structures
for many of the women with disabilities in post conflict Northern Uganda
has heightened their suffering and torment. So is the absence of strong
formal justice structures to promote and protect their rights which has
impacted on their ability to access justice in different arenas. Indeed, access
to legal services, especially legal aid, for such women is either limited or
non-existent.
Legal aid can be defined as free or subsidized legal services to eligible
individuals or groups, mainly poor, vulnerable [and marginalised] people,
provided as a means to strengthen their access to justice. Although legal aid
is not a panacea for access to justice, it is one of the critical tools that can be
used to promote access to justice for women with disabilities. Effective legal
aid has the following composite elements: legal representation, legal
30
assistance, legal advice/ADR and legal information/education.
2
5
Human Rights Watch (n 21 above) 6.
2
6
Note 23 above, 7.
2
7
As above.
2
8
Note 23 above.
2
9
Note 23 above.
3
0
Danish institute for Human Rights (n 8 above) 16.
3
1
As above.
31
1.3 Defining Disability for purposes of this research
Disability is not an illness, although some disabilities are cause by illness.
Rather disability is a chronic or long-term condition which substantially
limits an individual in performing one or more activities of daily living.
Article 1 of the Convention on the Rights of Persons with Disabilities
defines a disability as including long-term physical, mental, intellectual
or sensory impairments which in interaction with various barriers may
hinder their full and effective participation in society on an equal basis with
others. The Persons with Disabilities Act of 2006 defines disability as “a
substantial functional limitation of daily life activities caused by physical, mental
or sensory impairment and environmental barriers resulting in limited
participation.” According to the Uganda National Household Survey of
2009/2010, the national disability rate is estimated to stand at 16%. There is,
however, a lack of disaggregate data on statistics of disabled women and
men. Nonetheless, it is estimated that the number of persons with disabilities
is much higher in Northern Uganda where the consequences of the conflict
left many women and men with disabilities either due to landmines, gunshot
wounds or mutilation by the rebels.
32
33
34
35
1.4 Draft National Legal Aid Policy
The Justice Law Order Sector is in the final stages of advancing the
National Legal Aid Policy. The National Legal Aid Policy is being drafted on
the backdrop of the vital need to streamline and strengthen legal aid service
provision in Uganda. Presently, the provision of legal aid in Uganda operates in
a policy vacuum. This has led to a patchwork of services being provided
without an overarching strategy and standardised set of services that would
guarantee legal aid for all persons in Uganda. The draft Policy
broadens the definition of legal aid and therein advances a wider range of
3
2
3
3
3
4
3
5
Zahara Nampewo, ‘Too few to worry about? Young, disabled, HIV positive and female’
HURIPEC Working Paper No.35 (2012) 3. Persons with Disabilities Act of 2006.
Uganda National Household Survey of 2009/2010.
http://www.asafeworldforwomen.org/conflict/cp-africa/uganda/440-women-with-disabilities-i
nnorthern-uganda.html (accessed 19 June 2013).
legal aid services which people are presently unable
to access. The draft Policy seeks to enhance access
to justice for all, particularly those who are most
vulnerable and marginalised. The draft Policy also
seeks to provide a framework for the provision of
legal aid and legal assistance to all persons who
qualify according to regional and international
agreements to which Uganda is a signatory. The draft
Policy further proposes a strong regulatory
framework for legal aid service provision and posits
the establishment of a number of bodies to promote
legal aid service provision in Uganda.
1.5 Methodology
This research paper has been majorly qualitative and involved desk review of
literature on access to justice and legal aid. The research paper focuses on the
access to justice and legal aid needs of women with disabilities in
post conflict Northern Uganda. The study also conducted field interviews
with women with disabilities and key informants including care givers and
persons caring for women with disabilities, local council leaders, justice sector
actors and civil society organisations. The researcher reviewed several texts,
studies and scholarly materials to better understand the concept of access to
justice, and in particular the context of legal aid for women with
disabilities in post conflict Northern Uganda.
1.6 Scope of the study
The study focused on the districts of Gulu and Amuru. Gulu district was the
epic center during the war between the Ugandan army and the Lord’s
Resistance Army. During the conflict, over 90% of the population in Gulu
district had to flee their homes. After the conflict, Amuru district was one
of the districts curved out of Gulu district in 2006. The study sought to
identify the access to justice and legal aid needs of women with disabilities in
Northern Uganda. This was done to interrogate the effectiveness of the
proposed National Legal Aid Policy and its potential impact or reach to
vulnerable groups.
36
37
http://en.wikipedia.org/wiki/Gulu_District
(accessed 15 June 2013). As above.
36
37
1.7
Overall objective of the study
The overall objective of the study is to identify practical ways to promote
access to justice through legal aid for women with disabilities in post-conflict
Northern Uganda.
1.7.1 Specific objectives
1.8
(i)
Understand the present context of access to justice for women
with disabilities in post-conflict Northern Uganda;
(ii)
Identify the challenges faced by women with disabilities in
post-conflict Northern Uganda in accessing justice;
(iii)
Examine the extent to which the National Legal Aid Policy
provisions address the access to justice issues faced by women
with disabilities in Northern Uganda; and
(iv)
Make specific recommendations on legal aid for women with
disabilities in post conflict areas.
Synopsis
This paper begins in Part II with a discussion and analysis of the
international and national legal and policy framework on access to justice.
Part II provides a comprehensive review of existing instruments promoting
access to justice for women with disabilities. Part III analyses the proposed
National Legal Aid Policy and the extent to which it addresses challenges
faced by women with disabilities in accessing justice, and in particular legal
aid. Part IV provides practical recommendations on how the proposed
National Legal Aid Policy can be improved to ensure better effectiveness in
promoting legal aid and access to justice for women with disabilities.
2. LEGAL AND POLICY FRAMEWORK
Uganda is a party to numerous international and regional instruments that
promote access to justice and in particular legal aid for persons with
disabilities including women with disabilities. Human rights instruments are
not only guidelines for States, but create obligations that require
governments to reform their policies and practices to realize human rights
for all citizens.
38
2.1 International and Regional Obligations
As a member of the United Nations, Uganda subscribes to the provisions of
the Universal Declaration on Human Rights (UDHR), and is party to the
Convention on the Rights of Persons with Disabilities (CRPD) and its
optional Protocol , the International Convention on Civil and Political
Rights (ICCPR), the International Convention on Economic, Social and
Cultural Rights, the Convention on the Elimination of all forms of
Discrimination against Women (CEDAW) and the Convention on the
Rights of the Child. Uganda is also a party to the African Charter on Human
and People’s Rights, the African Charter on the Rights and Welfare of the
Child and the Protocol to the African Charter on Human and People’s
Rights on the Rights of Women in Africa (the Maputo Protocol).
39
40
41
42
43
44
45
46
47
3
8
Convention on the Rights of Persons with Disabilities Article 13 Available at www.academia.
edu/207906.
3
9
CRPD was adopted on December 13th 2006, Uganda ratified on September 25th 2008.
4
0
Uganda ratified the optional protocol on September 25th 2008.
4
1
International Convention on Civil and Political Rights, adopted on December 16, 1996, General
Assembly Resolution 2200A (XXI), 21 UN GAOR Supp. (No. 16) at 52, UN Doc. A/6316 (1966),
999 UNTS 171, entered into force March 23, 1976 ratified by Uganda 21 June 1995.
4
2
International Convention on Economic, Social and Cultural Rights, General Assembly Resolution
2200A (XXI), UN Doc. A/6316 (1966), entered into force January 3 1976, ratified by Uganda on
21January 1987.
4
3
Convention on all forms of Discrimination against Women, adopted 18 December 1979, by
General
Assembly Resolution 34/180, ratified by Uganda on July 22 1985.
4
4
Convention on the Rights of the Child, General Assembly Resolution 44/25, annex 44 UN GAOR
Supp (No.49) at 167, UN Doc. A/44/49 (1989), entered into force September 2 nd 1990, Uganda
ratified on August 17 1990.
These instruments specifically provide for the right to non-discrimination
for women with disabilities and the right to access to justice and legal aid.
2.1.1 Right to Non-Discrimination
The CRPD sets the normative standard for State Parties to promote and
protect the rights of persons with disabilities. The CRPD provides for full
and equal enjoyment of all human rights, fundamental freedoms and dignity
for all persons with disabilities. The CRPD notes the compounding
discriminations faced by women and girls with disabilities and calls upon
member States to ensure their full and equal enjoyment of human rights and
freedoms. Article 8 of the CRPD reinforces the protection of women with
disabilities from discrimination and calls upon State Parties to initiate
measures to raise awareness to foster respect for the rights and dignity of
persons with disabilities. This Article also acknowledges the need to combat
stereotypes, prejudices and harmful practices relating to persons with
disabilities.
48
49
50
Article 2 of CEDAW condemns discrimination against women in all its
forms and State Parties are obligated to pursue by all appropriate means a
policy of eliminating discrimination against women. CEDAW also calls
upon State Parties to implement measures ‘to modify the social and cultural
patterns of conduct of men and women with a view to achieving the
elimination of prejudices…and all practices which are based on the
inferiority or superiority of either of the sexes”. The CEDAW committee at
its Tenth Session recommended that State Parties take ‘special measures to
ensure that [women with disabilities] have equal access to… services and to
ensure that they can participate in all areas of social and cultural life’.
51
52
4
7
The Protocol to the African Charter on Human and People’s Rights on the Rights of Women in
Africa –Maputo Protocol was adopted on July 11 2003 and ratified by Uganda on July 22 2010.
4
8
See http://www.un.org/disabilities/convention/conventionfull.shtml.
4
9
Article 1, CRPD.
5
0
Article 6, CRPD.
5
1
United Nations Population Fund Wellesley Centres for Women - Disability Rights, Gender, and Development
– A Resource Tool for Action (2008) 19.
Article 2 of the Protocol to the African Charter on
Human and Peoples’ Rights on the rights of women
obliges State Parties to eliminate every form of
discrimination against women and to protect the rights
of women. Article 8(f) of the Protocol requires member
States to reform existing discriminatory laws and
practices in order to promote and protect the rights of
women. The Protocol under Article 23 recognises that
women with disabilities should be
given special protection and specific measures undertaken commensurate
with their physical, economic and social needs to facilitate their access to
varied opportunities.
The right to non-discrimination is critical to promoting and protecting the
right to access to justice for women with disabilities. The above provisions
require that State Parties put in place structural, complimentary and
procedural requirements that will ensure that women with disabilities are
able to access justice in varied situations. This includes setting up
infrastructure which is physically accessible to women with disabilities.
Accessibility to these institutions will also be possible were women with
disabilities have legal information of their rights and responsibilities and are
able to exercise those rights to attain justice. It can therefore, be argued that
non-discrimination is a sine quo non for enjoyment of the right to access justice
for women with disabilities.
2.1.2 Right to Access to Justice
Article 13 of the CRPD denotes the historic exclusion, in many societies, of
persons with disabilities from the justice systems and provides under Article
13(1) that;
53
52
Committee on the Elimination of Discrimination against Women
General Recommendations No.18 (Tenth session 1991.
53
Article 13 CRPD See www.academia.edu/207906 Article 13.
States Parties shall ensure effective access to justice for persons with disabilities on an equal
basis with others, including through the provision of procedural and age-appropriate
accommodations, in order to facilitate their effective role as direct and indirect participants,
including as witnesses, in all legal proceedings, including at investigative and other
preliminary stages.
The CRPD also requires States Parties to “promote appropriate training
for those working in the field of administration of justice, including police
and prison staff.” It requires State Parties to provide structural and
administrative measures to better promote access to justice for persons with
disabilities. Uganda committed to promote full and equal participation of
urban and rural women and women with disabilities in social, economic, and
political life, including in the formulation, implementation and follow-up of
public policies and programmes under the Copenhagen Declaration and
Programme of Action .
54
55
56
In 2004, the Human Rights Committee noted that State Parties must ensure
‘accessible and effective remedies’ for human rights violations and take into
account ‘the special vulnerability of certain categories of people’. The
Committee also noted that ‘a failure by a State Party to investigate allegations
of violations could give rise to a separate breach of the Covenant.
57
58
Access to justice means being treated fairly according to the law and if you
are not treated fairly being able to get appropriate redress. It does not mean
access to lawyers and courts only but access to all justice institutions where
everyone has a basic understanding of their rights, thereby making the law
less complex and abstract and more intelligible. Women with disabilities are
vulnerable to violence often without recourse to legal assistance. In order to
better promote access to justice for women with disabilities, there is need to
promote training for professionals working for persons with disabilities so as
to enable them better provide the assistance and services guaranteed by
CRPD.
59
60
5
4
Article 13 (2).
5
5
Article 6, CRPD.
5
6
Copenhagen Declaration and Programme of Action 1995 Commitment 5.
5
7
UN Human Rights Committee, General Comment 31: Nature of the General Legal Obligation on State
Parties to the Covenant, UN Doc CCPR/C/21/Rev.1/Add/13 (2004), Para 15.
5
8
Id.
5
9
See www.guardian.co.uk/law.
2.1.3 Right to Legal Aid
The Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa requires State Parties to take all appropriate
measures to ensure effective access by women to legal services including
legal aid. State Parties are encouraged to support local, national and regional
initiatives directed at providing women (including women with disabilities)
with access to legal services including legal aid. Legal aid is defined and
understood differently depending on the context in which it is practiced.
Legal aid as a minimum may therefore mean providing legal representation,
legal assistance, legal advice and information to persons who cannot afford
legal services. The Lilongwe Declaration has broadened the definition and
meaning of legal aid ‘to include legal advice, assistance, representation,
education and mechanisms for alternative dispute resolution’. The
Declaration also underscores the role of states in strengthening structural
and administrative mechanisms in the criminal justice systems for provision
of legal aid services.
61
62
63
Without legal aid, access to justice for women with disabilities in post
conflict Northern Uganda remains challenging. Article 8 of the UHDR
provides that:
Everyone has the right to an effective remedy by the competent national tribunal for
acts violating the fundamental rights granted him by the Constitution or by law.
Article 4 (i) CRPD. Article 8, Protocol to the African Charter on the Rights
of Women in Africa Maputo Protocol. Dan Ngabirano ‘A baseline survey
of Uganda’s legal aid service providers’ (2012) 1. Lilongwe Declaration on
Accessing Legal Aid in the Criminal Justice System in Africa. See Conference
60
61
62
63
on Legal Aid in Criminal Justice: the Role of Lawyers, Non-lawyers and other services providers.
Lilongwe-Malawi, November 22-24, 2004.
Article 2 of the ICCPR obligates State Parties to make available, without
cost, legal representation and guarantee equality of all before any court or
tribunal. Although Article 14(1) of the ICCPR guarantees equal rights for
every individual before any court or tribunal and emphasises the need for the
state to provide legal aid to ensure a fair hearing; it limits provision of legal
aid to capital offenses. The United Nations Basic Principles on the Role of
Lawyers obligates Governments to ensure the provision of sufficient
funding and other resources for legal aid to the poor and disadvantaged
persons. The Principles also urge professional associations of lawyers to
cooperate in the organisation and provision of legal aid facilities and other
resources.
64
65
66
The United Nations Principles and Guidelines on Access to Legal Aid in
Criminal Justice Systems emphasize that legal aid is the foundation for the
enjoyment of other rights, including the right to a fair trial. The Guidelines
further stipulate that legal aid is a pre-condition to exercising the rights to a
fair trial and an important safeguard that ensures fundamental fairness and
public trust in the criminal justice process. At its 26 Ordinary Session, the
African Commission on Human and Peoples’ Rights adopted the Dakar
Declaration which reaffirms the commitment of states to the
67
th
68
69
Article 14(3)(d) & Article 2(3) International Convention on Civil and
Political Rights. Article 14(3) ICCPR. Basic Principles on the Role of
Lawyers ‘8 United Nations Congress on Prevention of Crime and
64
65
66
th
the Treatment of Offenders, Havana 27 August – 7 September’ 1990 UN
DOC.A/CONF.144/28/ Rev.1 at 118 (1990). United Nations
67
Principles and Guidelines on Access to Legal Aid in
Criminal Justice Systems adopted at the 67 session of
the United Nations in 2012. The 26 Ordinary Session
of the African Commission on Human and Peoples’
Rights took place from 1 -15 November 1999 in Kigali,
Rwanda.
The Right to a Fair Trial: The Dakar Declaration Journal of African Law
Vol. 45, No. 1 (2001) Pg 140-142 published by Cambridge University
Press ‘Articles 7 and 26 of the African Charter on Human and Peoples’
Rights provides for the right to a fair trial. As the end of a seminar
organised by the African Commission on Human and Peoples’ Rights in
September 1999 in Dakar, Senegal, a Declaration was issued. The
Declaration sought to consolidate standards on fair trial under the
th
68
st
69
th
th
African Commission and other international human rights bodies. In
November 1999 at the 26 Ordinary Session in Kigali, Rwanda, the
African Commission adopted the Dakar Declaration without
amendment. The African Commission also set up a working group to
draw up basic principles and guidelines on the implementation of fair
trial provisions and legal aid in Africa.
th
implementation of provisions on the right to a fair trial and legal aid in
Africa.
The need for legal aid for women with disabilities cannot be over
emphasized.
Without legal aid support, most women with disabilities in post conflict
Northern Uganda are invisible to the justice system. They face economic,
structural and social challenges that impede their access to justice. According
to a State Prosecutor for Gulu, “provision of legal aid services to women
with disabilities will go a long way in promoting and protecting the rights of
these women.”
70
The international and regional obligations lay emphasis on the need to
promote and protect the rights of women with disabilities. The
commitments laid down in the instruments require State Parties such as
Uganda to align national priorities to implement the international
obligations. Substantial legal and policy interventions are in place; however
the framework for practical promotion and protection of the access to
justice needs of women with disabilities remains weak and needs to be
strengthened.
2.2 National Legal and Policy Framework
Article 21(2) of the 1995 Constitution prohibits discrimination against
people with disabilities. The Government is required under Article 32
of the 1995 Constitution to take ‘affirmative action in favour of groups
marginalized on the basis of…disability…’ Article 35 provides that persons
with disabilities have a right to respect and human dignity, and the State and
society shall take appropriate measures to ensure that they realise their full
mental and physical potential. The Constitution mandates Parliament to
enact laws appropriate for the protection of persons with disabilities. In
2006 Parliament enacted the Uganda Persons with Disabilities Act. The
Disabilities Act is intended to among others eliminate all forms of
discrimination against persons with disabilities. The Act is however silent on
the need for legal aid services as a driver towards equality for persons with
disabilities.
71
72
73
74
75
76
7
0
Gulu State Prosecutor’s office, Wednesday 22nd May 2013.
7
1
1995 Constitution of the Republic of Uganda.
7
2
Article 32 (1) Constitution.
7
3
Article 35 (1) Constitution.
7
4
Article 35 (2) Constitution.
7
5
Persons with Disabilities Act, 2006.
In 2007, the Equal Opportunities Act was enacted to
give effect to the State’s constitutional mandate to
eliminate discrimination and inequalities against any
individual or group of persons on the ground of sex,
age, race, colour, ethnic origin, tribe, birth, creed or
religion, health status, social or
economic standing, political opinion or disability, and take affirmative action
in favour of groups marginalised on the basis of gender, age, disability or any
other reason created by history, tradition or custom for the purpose of
redressing imbalances which exist against them; and to provide for other
related matters.
77
78
To ensure effective decentralized promotion of the rights of persons with
disabilities, the National Council for Disability was established in 2003. In
2006, the National Policy on Disability was launched to improve the quality
of life of persons with disabilities. The policy conspicuously silent on the
access to justice needs of persons with disabilities. This begs the question of
whether at the national level, access to justice, and in particular legal aid for
women with disabilities, are prioritized.
79
The 1995 Constitution under Article 28(3) limits the provision of legal aid to
capital offenses were the maximum penalty is death or life imprisonment.
Section 2 of the Poor Persons Defence Act requires the State to provide legal
aid were it appears desirable or in the interests of justice that a prisoner
should have legal aid in preparation and conduct of his defense at trail. This
Act requires a certifying officer to officially state that a particular prisoner
is entitled to legal aid at the expense of the State and as determined by the
judge.
80
81
7
6
Long title of the Persons with Disabilities Act, 2006.
7
7
The Equal Opportunities Commission Act, 2007.
7
8
See http://www.mglsd.go.ug/?p=299.
7
9
Human Rights Watch ‘As if we weren’t human Discrimination and violence against women with
disabilities in northern Uganda’ (2010) 102. See Section 5, 18 & 22 National Council for Disability
Act, 2003.
8
0
Cap 20, Laws of Uganda, 2000.
The Uganda Law Council is mandated to exercise
general supervision and control over legal aid service
provision in the country. The Advocates
(Legal Aid Services to Indigent Persons) Regulations of 2007 define legal aid
as the provision of legal advice or representation by a lawyer, an advocate or a
paralegal to a client at no cost or at very minimal cost. Regulation 21 provides
that legal aid shall include legal advice, representation in court or tribunal in
civil, constitutional or criminal matters, mediation, negotiation or arbitration,
legal education or awareness. The Regulations establish criteria
for eligibility for legal aid which includes assessment of financial means, rule
on registration of legal service providers, as well as client care and quality
standards control.
82
The Advocates (Amendment) Act of 2002 in section 15A mandates lawyers to
provide legal services pro bono to indigent persons. The Advocates (Pro Bono
Services to Indigent Persons) Regulations, No. 39/2009 compel advocates to
provide a minimum of 40 hours free services per year or make payment in lieu
thereof. The Advocates (Student Practice) Regulations 2004 provide that
students at the Law Development Centre may also provide unpaid
representation to indigent persons in the Magistrates Courts under
the supervision of a lawyer with a valid practicing certificate.
The national framework on legal aid provision remains weak and left to the
professional discretion of the legal fraternity. The promotion of access to
justice and in particular legal aid for women with disabilities should be curved
out of a national framework involving different state actors with an implicit
mandate for action. It is clear that the provisions on legal aid as an element of
promoting access to justice remains weak, uncoordinated, scattered and to
some extent illusory. In order to strengthen the provision of legal aid to women
with disabilities, it is imperative that a robust legal and policy framework is in
place. To this end, the justice law and order sector
(JLOS) is spear heading processes to finalize the legal aid Bill and National
Section 3, Poor persons Defence Act, Cap 20. Section 3 (e) Advocates Act,
Cap 267 (as amended by Act No. 27 of 2002).
81
82
Legal Aid policy. For purposes of this research our focus is limited to the
National Legal Aid policy.
2.2.1 Legal Aid in Civil Matters
For a long time, provision of legal aid has been limited to capital criminal
offences carrying maximum sentences. This is because criminal offences are
offences not just against individuals alone but also against the State. This
gives rise to the State’s obligation to bring to justice perpetrators for criminal
offences. The mandate of the State to provide legal aid in criminal matters is
clear – this is because the State cannot deprive someone of liberty or have
them executed without a fair trial. There cannot be a fair trial without legal
representation; thus, fundamental principles of justice require that the State
provide a lawyer if the accused cannot afford one. As noted in the Section
above, provision of legal aid for civil matters is enshrined in practice
regulations, and not in an Act of Parliament.
83
Civil matters involve disputes between individuals or organisations in which
compensation might be awarded to the victim. Civil legal aid is a short-hand
for providing legal assistance in anything other than criminal matters for
people who are poor, disenfranchised or otherwise excluded from society.
In order to ensure that the justice system is fair and equitable, the State
should be able to implement mechanisms for provision of legal aid in civil
matters such as breach of employment contracts, land disputes, family
maintenance domestic violence, evictions and divorce among others. In
Airey v Ireland, the European Court on Human Rights interpreted the
right to a fair trial in civil cases to mean effective access to the courts. The
Court noted that the State was required to provide publicly funded counsel
in civil matters when it was in the interests of justice. The Court determined
that the ‘interest of justice’ criteria could be met if it was shown that the
assistance of a lawyer was indispensable for the effective access to court,
either because legal representation was rendered compulsory or by reason of
84
85
8
3
Daniel S. Manning Developments of a civil legal aid system –issues for consideration (2005) 1.
8
4
Id.
8
5
Airey V Ireland 32 Eur Ct Hr Ser. A (1979).
the complexity of the procedure or the case.
Legal aid for civil matters in Uganda is largely
provided
by
non-state
actors,
civil
society
organizations outside any formal legal framework.
The National Legal Aid Policy recognises that
promotion of holistic access to justice includes legal
aid interventions that address both the criminal and
civil matters. The draft Policy lays emphasis on the
need to extend legal aid to civil matters as much as
criminal matters.
86
87
The draft Policy further recognises the principal
areas of civil dispute to include land, inheritance and
family matters. Most women with disabilities
in post conflict Northern Uganda are very poor, incapacitated, defenceless
and unable to afford legal services. They suffer from various forms of
discrimination, domestic violence, land evictions and issues of child neglect
and maintenance. They are denied access to medical services and excluded
from community social events. The structural, geographical and
sustainability challenges that arise out of this reality do not guarantee access
to justice and legal aid for women with disabilities.
88
86
Ngabirano (n 62 above) 7. Justice Law Order Sector –Draft National Legal
87
Aid Policy (2012) 11.
Id.
88
3.
INFUSING THE STUDY FINDINGS WITH THE DRAFT
NATIONAL LEGAL AID POLICY
This research reviewed final Draft No. 6 of the National Legal Aid policy.
At the time of the research the Draft Policy was before Cabinet for
consideration. The purpose of a national policy is to outline government
plans for intervention on a particular issue and the principles and strategies
that government will use to achieve the policy plans, goals and outcomes. A
policy document is not law but will often identify existing laws and new ones
needed to achieve its goals. Laws must be therefore be guided by existing
government policy.
89
3.1
Understanding the Issue: Rationale
The purpose for the National Legal Aid Policy is to provide the framework
for the provision of legal aid and legal assistance to all persons in Uganda
who qualify for legal aid. As indicated above, the current landscape of legal
aid services is limited and excludes the majority of Ugandans from legal aid
services. This is because in the absence of a defined legal and policy
framework, the provision of legal aid services remains very limited in
geographic and professional scope. Presently, there are approximately 1,700
advocates registered with the Uganda Law Society. There are fewer
advocates in legal practice with over 85% concentrated in Kampala. As a
result, majority of Ugandans, 24 million, do not have adequate access to
lawyers. The non-state actors providing legal aid are also spread very thin on
the ground and unable to sustain their legal aid and legal assistance
interventions. Beatrice Adong scoffed at the possibility of free legal aid;
“…this country is very corrupt you cannot get anything for free. Even if people say it’s free,
you will pay somehow…”
90
91
92
93
94
8
9
9
0
Interview with JLOS Technical Advisor
9
1
Draft national legal aid policy (n 87 above) 14.
Note 84 above, 12.
9
2
As above.
9
3
Note 84 above.
9
4
Beatrice Adong, Paboo sub-county, Amuru district, Thursday 23rd May 2013.
The provision of legal aid presently operates in a
vacuum as evidenced by a patch of services offered
by different service providers, ranging from State
actors to non-state actors. State funded legal aid in
Uganda is limited to representation for accused
persons for capital offences. In order to legally
broaden the scope of State funded legal aid, the Draft
National Legal Aid Policy adopts the recommendation
from the Lilongwe Declaration, which, as seen above,
widens legal aid beyond mere court representation to
include
legal
advice,
legal
assistance,
representation, education and mechanisms for
alternative dispute resolution.
95
96
Findings from the research indicated that while the
Draft National Legal Aid Policy might create a uniform
standard on legal aid service provision in the country,
different legal aid service providers in Northern
Uganda were not aware of the process of drafting the
policy. It was evident that upcountry stakeholder
participation in developing the Draft Legal Aid Policy
was limited. However, the different legal aid service
providers and other stakeholders were optimistic
that whatever the content of the policy, it would
address legal aid challenges peculiar to women with
disabilities. One Legal Aid Service Provider noted
thus “I have not seen a copy of the draft national legal aid policy but I think that if
implemented it will solve the challenges faced by legal aid service providers in promoting and
providing legal aid to women with disabilities.”
97
Another Legal Aid Service Provider in Gulu District noted that:
Legal aid should be interpreted widely and not focus solely on the poor and
marginalized but on issues such as legal assistance and knowledge. The
policy should set a standard for legal aid on money legal aid service providers
should charge especially considering change in donor changes and government
priorities.
98
95
See Article 28 (3)(e) 1995 Constitution. Note 85 above, 18. Legal Aid
service provider’s office in Gulu district, Monday 20 May 2013. Legal Aid
service provider in Gulu district, Tuesday 21 May 2013.
96
97
th
st
98
3.2 Policy Instrument Scan
The Draft National Legal Aid Policy links with the 1995 Constitution,
various legislations and regulations as well as the National Development
Plan (NDP). The draft national legal aid policy also embeds itself in already
existing initiatives to strengthen promotion of access to justice. The policy
also identifies the most vulnerable groups and seeks to positively
discriminate
legal aid provision in their favour.
99
100
3.2.1 Interests of Justice Test
The ‘interest of justice test’ appears to be the backbone of the Draft National
Legal Aid Policy. Presently, the interest of justice test is limited to capital
offences carrying the death penalty or life sentences. Recommendation 27 of
the Draft Policy is to the effect that were it is in the interest of justice, every
poor, vulnerable and indigent person shall be provided with legal
representation at all stages. The draft policy provides a minimum
qualification for the interest of justice test. Where the person seeking legal
aid is a woman in vulnerable circumstances (including woman with disabilities)
[emphasis added], the interest of justice is satisfied. This would therefore
mean that women with disabilities in vulnerable circumstances such as post
conflict communities will be prioritised for legal aid and legal assistance.
This provides a good legal safety net that guarantees legal aid and legal
assistance for women with disabilities whether in conflict with the law or
faced with a civil breach.
101
The fact that the Draft Policy identifies women with disabilities as meeting
the interest of justice test is a positive recognition in extending access to
justice to them. The research found that majority of the women with
Article 21(4) 1995 Constitution –nothing in this article shall prevent
Parliament from enacting laws
99
that are necessary for ‘implementing policies and programmes aimed at redressing social, economic,
educations and other imbalances in society’. Article 45 provides that ‘the rights, duties, declarations
and
guarantees relating to the fundamental and other human rights and freedoms specifically mentioned in
this chapter shall not be regarded as excluding others not specifically mentioned.’
National Development Plan 2010/11
-2015/16. Note 89 above, 28.
100
101
disabilities did not seek legal aid because they did not know that they had a right
to a remedy for rights violations. While many women with disabilities suffer
land grabbing, inheritance disputes, theft, physical assault, accusations of
engaging in witchcraft, among others, very few of them sought legal aid. Fewer
still had knowledge of their rights and available options to seek support from
organisations providing legal aid services. Besides the
Gulu Women with Disabilities Union, the research did not find another
organisation that directly provided legal aid for women with disabilities in
Gulu and Amuru districts. Some of the women with disabilities noted that
access to organisations providing a legal aid service was difficult due to
distance and financial resource limitations. Stella Atiku noted:
I was discriminated against and denied a job and told to go to organisations
that employ persons with disabilities. This was because of perceptions in the
community that persons with disabilities are employed by organisations that
work to protect the rights of persons with disabilities.
102
The application of the interest of justice test alone will not cure the
limitations faced by women with disabilities in accessing legal aid, especially
for civil matters, the test however triggers guaranteed legal aid service
provision to every woman with a disability not able to afford legal aid and
legal assistance.
3.2.2 Means and merits test
The means and merits test sets that standard for access to legal aid services.
According to the Draft National Legal Aid Policy, “legal advice and
assistance will be made available to poor and vulnerable persons through a
means and merits test. The qualification for the means and merits test is
benchmarked on were the interest of justice demands.” While the Draft
Policy lays a clear benchmark on which categories of persons trigger the
‘interest of justice’ test, the same is not clear for the means and merits test.
The Draft Policy seems to peg the application of the means and merits test
to were
103
104
Stella Atiku, office of the Gulu women with disabilities Monday 20 May
2013. Note 92 above, 5. Note 93 above, 29.
102
th
103
104
the interest of justice requires in each particular case. As a result, the Draft
national legal aid policy defers determination of the means and merits test to
the national legal aid body.
105
The research findings indicate that most women with disabilities in post
conflict Northern Uganda live in abject poverty. This poverty is perpetuated
by the lack of ability to engage in productive work, lack of family support or
care, lack of a source of livelihood and in some cases inability to cultivate
land due to their disability. Women with disabilities are also stigmatized as
incomplete human beings needing special care and attention. This reality
impinges on their dignity and ability to voice their concerns. Karamela Awilo
recounts:
“I cannot fetch water or dig or even build a hut because of the disability.
Since my husband died out neighbours are encroaching on my land. I don’t
know how to handle this issue because I have no money to go and get help
and also follow up the matter”
106
Many of the women with disabilities indicated that they suffered from
constant land grabbing because they were perceived as unable to cultivate
the land. Stella Aduko noted that:
During the war I stepped on a land mine and lost my legs, when we returned
to the village after the war, my father gave me a piece of land but my brothers
and nephews are constantly threatening me to leave the land because they say
am useless and cannot cultivate the land.
107
Women with disabilities are also often in danger of sexual assault including
rape because of their immobility and thus susceptible to HIV/AIDS
infection. Many of the women with disabilities are raped precisely because of
their vulnerability: their disability may make it difficult for them to get away
or fight off attackers or –in the case of mental impairment –to understand
Draft national legal aid policy, Recommendation 27. Karamela Awilo’s
house in layibi go down, Gulu district Tuesday 21 May 2013. Stella Aduko’s
house, Obiya west, Gulu district Wednesday 22 May 2013.
105
106
st
nd
107
what is happening. Others are raped because of they are believed to be
asexual and thus free from HIV/AIDS.
108
It is important that the means and merits test adopts a holistic approach to
ensure better protection of rights of women with disabilities. The research
found that the legal needs of women with disabilities vary on a case by case
basis. The more advanced the disability the more vulnerable the women
were to violations and self marginalization. A District Officer in Gulu
noted that the legal aid policy should take into consideration the peculiar and
special needs faced by women with disabilities in accessing justice.
According to the Officer, their needs are different from those faced by their
male counterparts. It is therefore important that a minimum criteria for the
means and merits provides as a guiding framework.
109
3.2.3 Economic and Social Rights Protection
One respondent in the names of Leonora Atim indicated that she was facing
challenges getting food to feed her children since she could not engage in farming activities
and that looking after her children was also difficult because of her disability. The Draft
Policy under section 18 recognizes the need for legal aid to protect economic
and social rights. It provides that legal aid should extend to civil matters to
protect rights arising from land disputes, inheritance and family wrangles.
According to one LC Councillor from Amuru District:
110
111
One of the major challenges facing women with disabilities are the land
wrangles. If a woman with a disability loses her husband, her in-laws will
in most cases throw her out of the land laying emphasis on her disability…
claiming she is useless and not able to make use of it.
112
108
Zahara Nampewo, Too few to worry about? Young, disabled, HIV positive and female, HURIPEC
Working
paper No.35 (2012) 26.
Gulu district offices, Tuesday 21 May 2013. Leonora
Atim’s house in Pabbo, Amuru district, Thursday 23 May 2013. Note 94
above, 11. Amuru district Thursday 23 May 2013.
109
st
rd
112
rd
110
111
Section 29 of the Draft Policy identifies poverty as one of the major factors
increasing peoples’ vulnerability to land grabbing or encroachment, disputed
inheritance and family conflicts among others. The research found that the
disempowerment of women with disabilities was compounded by poverty
and lack of access to land and property. Severe disabilities render some of
the women incapable of engaging in productive ventures such as agriculture
and simple livestock rearing. Another LC Councillor for Persons with
Disabilities in Amuru District noted there were no programmes targeting
persons with disabilities and that in many cases persons with disabilities are
excluded from government programmes such as NAADS because the
mobilization mechanisms might not necessarily reach them.
113
The Draft Policy aims to empower the poor through knowledge and
information as well as strengthening referral mechanisms among different
service providers to increase access to justice and legal aid services.
However legal aid will not serve as a panacea for the varied social and
economic rights violations faced by many women with disabilities. The
research found that the challenges faced by most women with disabilities
arose from social exclusion, lack of economic empowerment leading to
poverty. It is therefore important to bear in mind that social and economic
empowerment for women with disabilities should be emphasized as much as
the need to provide legal aid. This is because the lack of social and economic
empowerment for women with disabilities will perpetuate their continued
vulnerability and dependency.
114
3.2.4 Regulating Legal Aid Service Provision
The Draft National Legal Aid Policy lays a strong focus on regulating legal
aid service provision at policy and structural level. The draft Policy
recommends repealing the Poor Persons Defence Act which limits legal aid
services to High Court matters and as a result inconsistent with Uganda’s
international commitments. The Draft Policy therefore seeks to regulate
and widen the scope of State-funded legal aid as well as coordinate the
services of legal aid
115
Note 109 above.
Note 96 above
13. Note 97
above, 5.
113
114
115
providers. Perhaps, what is most important is the multi -layered proposal
for the establishment of a National Legal Aid Body, a National Legal Aid
Regulator, a Legal Aid Fund and National Legal Aid Scheme.
116
Currently, legal aid service provision is coordinated in a very ad hoc manner
with no defined mechanism for coordinating and harmonizing state funded
legal aid services or initiatives with services provided by non-state actors. As
a result, there is no set standard for legal aid service provision. Some
non-state actors charge a fee for legal aid services while others provide free
services. Regulation and coordination of legal aid services is therefore
paramount to ensure better legal aid services for women with disabilities.
Jane Awolo, a woman living with a disability shared as follows: “…one time
I wanted to get legal aid but the lawyer used terms which I failed to
understand so I left. It is also expensive I had to facilitate their transport to
help me which I did not have….” Similarly, Madiena Adong retorts that “I
do not have money and I have never heard of legal aid but I believe that
there cannot be a legal service that is totally free because Uganda is spoilt by
the virus of corruption.”
117
118
3.2.5 Policy Gaps and Coherent Analysis
(i) Time frame
The Draft Policy lacks a specified timeframe within which set goals should
be accomplished. The Draft national legal aid policy does not lay out
defined targets, specific outputs, indicators and defined time-lines to meet
the set targets. The lack of a time-bound element skews responsibility and
prioritization which can translate into mediocre or no service provision. One
would construe the deliberate lack of a defined timeframe as a deliberate
strategy to check accountability and monitoring implementation of the
policy.
Note 98 above, 4. Office of the Gulu women with disabilities union,
Monday 20 May 2013. Madiena Adong, Bungatira, Gulu district Monday
20 May 2013.
116
117
th
th
118
(ii) Concrete commitments
A national policy should highlight commitments and priorities to realize the
set goals and objectives. The Draft Policy lacks policy commitments to
address the need for national legal aid provision. What would appear as
policy commitments are actions under proposed recommendations. For
example, the establishment of a National Legal Aid Body, a National Legal
Aid Regulator and National Legal Aid Fund and Scheme are all
recommendations. The lack of clear policy commitments puts to question
the extent of political will to realise the commitments in the Draft.
(iii) Existing Initiatives
The Draft national legal aid policy is a good place to authenticate and embed
existing national legal aid interventions. While the draft Policy maps and
underscores the existing legal aid service providers and initiatives, it focuses
on existing gaps in legal aid service provision. In addition to identifying the
existing gaps, the Draft Policy should have proposed recommendations on
how to strengthen or reinforce existing pilot initiatives and widening
coverage to increase better legal aid accessibility for those most vulnerable
and in need of legal aid services.
The Draft national legal aid policy undermines the practical and technical
challenges that have in the past prevented many non-state actors from
providing legal aid services. The stringent law chamber requirements by the
Law Council have in the past challenged many non-state actors providing legal
aid services. This research paper does not make the recommendation that the
Law Council provides special treatment to non-state actors/ civil society
organisations providing legal aid services, but that the practical sphere within
which non-state actors operate be recognized and supported
to promote efficient legal aid service provision. It should also be noted that
the Draft national legal aid Policy seems to place new actors providing legal
aid services on the same threshold as existing legal aid initiatives –therein
ignoring the challenges legal aid service providers have faced in the past.
This means that for women with disabilities the challenges that have hitherto
inhibited their ability to readily access justice might continue.
(iv) Lack of controls, too much power!
The reading of the Draft Policy indicated that too much power is given to the
proposed National Legal Aid Body. For example, the proposed Body is
responsible for developing a comprehensive framework on legal aid service
provision, developing the ‘means and merits test’ to ensure that the poor and
vulnerable people throughout Uganda qualify for legal aid, ensure that legal aid
service providers are accessible to all persons in Uganda needing their services,
work closely with the national legal aid regulatory authority to develop criteria for
the accreditation of legal aid service providers and initiate and implement
sensitization and awareness programmes. The proposed Body will also develop its
own rules and regulations regarding administration and delivery of legal aid. The
wide powers given to the national legal aid
body present two major challenges: first, is the threat of alienating existing
actors from contributing and informing the landscape of legal aid service
provision in the country and second is the threat of managing the efficiency
and effectiveness of the national legal aid body.
3.3
Are Women with Disabilities any nearer to legal aid with the draft
National Legal Aid Policy?
3.3.1 Discrimination against Women with Disabilities
In an interview with the Police Community Liaison officer, Gulu District,
he revealed that a young woman with a disability had committed suicide
because her mother traumatized her by calling her names and saying things like
“I wish you had died long time ago, I would have rested”. An Officer at the Gulu
Women with Disabilities Union noted that the negative attitude by the
community presents many challenges for women with disabilities.
The Officer noted that women with disabilities are often excluded from
community meetings simply because they are disabled. Even were those with
hearing impairments are invited, they cannot participate in the meetings
because there are no interpreters to support their participation.
Discrimination was one of the major hindrances to access to justice and legal
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Gulu district police headquarters, Wednesday
22 May 2013. Gulu district police headquarters,
Wednesday 22 May 2013.
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aid for women with disabilities. The Draft national legal aid policy provides
that women in vulnerable circumstances such as women with disabilities
in a post conflict setting qualify for legal aid. This means that in setting a
minimum standard, the Draft policy positively discriminates in favour of
women with disabilities.
As indicated above, the discrimination faced by women with disabilities results
from community perceptions and traditional biases against women with
disabilities. This is perpetuated by the lack of legal awareness on the human rights
of women with disabilities. Joyce Atim recalls an incident when the police referred
to her as a nuisance as she tried to follow up her case with them: “It was not until I
went to the Gulu women with disabilities union that I got help.” Women with disabilities
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are also disempowered which makes them fearful and unable to report
human rights violations. The research also found that cases or complaints
brought by women with disabilities were often withdrawn and further action
stopped due to fear, social dimensions
and cultural biases. According to a Judicial Officer in Gulu district; women
with disabilities were found to have limited access to the courts of law due to
the structural set up of the court rooms and the absence of accessible
pathways in court premises and other legal offices. He noted that “the court
files do not indicate that the person has a disability and the party does not approach the
judicial officer to note their disability. As a result, the cases brought by persons with
disabilities are dismissed because the complainant, a person with a disability, is not able to
attend court. [We not see persons with disabilities or even women with disabilities because
no one cares].”
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The qualification for legal aid under the interest of justice test is a progressive
position. It provides a safety net for women with disabilities seeking legal aid.
This test alone is not a panacea for challenges faced by women with
disabilities in accessing legal aid. In order to give effect to this test, there is
need for strategic legal awareness on the rights of women with disabilities.
Joyce Atim, Office of the Gulu women with disabilities union,
Tuesday 21 May 2013. Gulu district chief magistrate’s office,
Wednesday 22 May 2013.
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3.3.2 Lack of Rights Protection and Awareness
Recommendation 21 of the Draft Policy is to the effect that the proposed
National Legal Aid Body should initiate and implement sensitization and
awareness programmes to promote understanding on human rights and legal
aid. It is important that the awareness strategy developed by the proposed
national legal aid body takes into account the peculiar legal realities such as
facilitation for interpreters and the need for hearing aids when reaching
women with disabilities with awareness information. The LC III Councillor
in Gulu District recounted a story highlighting the levels of lack of awareness
by women with disabilities on their rights:
The hut of a woman with disability was burnt down. When she was
approached by volunteers to help her seek legal protection, she said; ‘I don’t
want to be disturbed because it would be a waste of my time and I can’t win
a war against an able bodied man.
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The research also found that in Gulu District, the key barriers to access to
justice were: lack of knowledge of where to report rights violations;
communication barriers especially for women with hearing and speech
impairments and high levels of illiteracy among women with disabilities.
Many women with disabilities were afraid to report human rights violations
due to possible mistreatment by the perpetrators. In Amuru district, the key
barriers identified were ignorance of procedures and rights among women
with disabilities and prevailing oppressive customs. Many of the women with
disabilities interviewed had little or no knowledge about their rights,
how to protect themselves within the confines of the law and where to seek
redress when faced with a violation.
3.3.3 Legal Protection options
The research found that the legal options of first instance for women with
disabilities were the local councils (LCs). This was because the LCs are more
accessible, use neither complex language nor processes and are also deemed
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Gulu district Tuesday 21 May 2013.
st
to be fair and less corrupt. Local councillors and local leaders within the
sub-villages (rwot kweri) often mediate land wrangles. As a result, the LCs
have been instrumental in protecting and supporting not just the legal needs
of women with disabilities but also in advocating for better livelihoods and
support services for women with disabilities. However, the support given by
LCs is limited because of their limited jurisdiction, functional lethargy,
corruption and incapacity to handle many cases. When Jessica Abalo
referred a matter to the LCI she received no help: “I was accused of witchcraft by
one of my neighbours. When I went to the LCI, he did not help me at all.” Grace Alal
recalls when she referred a matter to the LCI who did nothing but refer it to
the police and yet the police did not help her either.
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Recommendation 30 of the Draft Policy recognises that in order to ensure
effective legal aid services, small claims and civil cases should be diverted
from the formal justice system to local council courts and traditional
mechanisms. To ensure effective administration of legal aid in these informal
systems, it is important that prescribed rules and guidelines are developed
for administration of legal aid in these courts. For example, the guidelines
should allow paralegals to represent clients before the LC courts. Where this
is done, it will bolster the capacity of women with disabilities to appear
before the LCs and traditional courts.
The Draft contains promising aspirations for promotion of legal aid for
women with disabilities. However effective, realisation of legal aid for
women with disabilities in post conflict Northern Uganda will depend on
it implementation once adopted.
Jessica Abalo’s house, Gulu district Tuesday 21 May 2013. Grace Alal’s
house, Gulu district Tuesday 21 May 2013.
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4. CONCLUSION AND RECOMMENDATIONS
Access to justice is a critical tool in promoting social cohesion, civic
accountability, combating discrimination and abuse of state authority.
Promoting access to justice through legal aid accessibility champions human
rights protection, promotion and respect. It also builds individual and
communal solidarity and confidence in the justice system and what it stands
for. The Draft National Legal Aid Policy recognises the need to widen legal
aid service provision in civil matters as well as criminal matters. The Draft
Policy also seeks to harmonize legal aid service provision through regulating
the legal aid actors and as a result proposes establishment of different
entities and initiatives for this purpose.
The research found that the access to justice needs’ of women with
disabilities’ are numerous and the provision of legal aid alone is not a
solution to address these challenges. It is evident that the Draft national legal
aid Policy is lopsided; focusing on regulating legal aid service providers
without a deep appreciation of the legal aid needs of its beneficiaries. Once
adopted, effective implementation of the national legal aid policy has the
opportunity to check legal and justice exclusion faced by the very poor,
vulnerable and marginalized women with disabilities and those in far and
hard to reach places.
Women with disabilities face distinct challenges different from those faced
by their male counters parts or other women in general. The research found
that women with disabilities often had no education, no empowerment and
therefore vulnerable to various forms of discrimination and marginalization.
In light of the above, the following recommendations are made:
• A strong legal awareness and knowledge campaign targeting women
with disabilities and the general community on their human rights
and where to seek redress when violated is critical. The awareness
campaign should take into consideration the peculiar and specific
needs of women with disabilities when developing strategies for
awareness creation such as the need for interpreters, provision of
brail, sensitivity fare among others. It is important that justice sector
actors such as the police, prosecutors, judicial officers, prison officers
are empowered with knowledge on promoting and protecting the rights
of women with disabilities. This will ensure that these actors are more
responsive to the rights of women with disabilities.
• The proposed National Legal Aid Body should have a specific disability
unit to handle the peculiar legal aid needs of women with disabilities. This
unit should be responsible for developing strategies to guarantee
accessibility of legal aid for persons with disabilities, especially women
with disabilities in complex environments.
• The Persons with Disability Act should be amended to incorporate an
express provision on the right to legal aid for people with disabilities.
This will ensure that the parent legislation on Persons with Disabilities is
effectively complimented by the national legal aid policy.
• The Draft National Legal Aid Policy should build on already existing
justice mechanisms to promote legal aid. Informal justice mechanisms
such local council courts and local leaders/traditional justice mechanisms
should be prioritized and strengthened to enable them dispense effective
justice.
• The capacity of local councillors and local leaders should be built to
enable them understand their role and reinforce their contribution to the
justice system. Community based paralegals should also be trained and
equipped to support legal aid before the local council courts. This will
ensure that the legal aid provided in these courts, local council courts and
traditional courts, and justice dispensed by the local councillors meets
and subscribes to international principles.
• The Policy should set a definite time frame; identify a theme, priority
areas, priority groups or individuals and specific strategies to promote
legal aid. This will enable easier monitoring of implementation of the
policy. It will also enable easy evaluation of the progress and processes
being made to implement the Policy.
SELECTED BIBILIOGRPAHY
Reports:
Avocats sans Frontières Belgium, How Access to Justice can help reduce
poverty, 2013
Daniel S. Manning, Development of civil legal aid systems –issues of
consideration, 2006
National Union of Disabled Persons of Uganda, Disability mainstreaming in
justice, law and order sector, 2013
Uganda Bureau of Statistics, Uganda Demographic and Health Survey, 2011
Uganda Bureau of Statistics, Uganda National Household Survey,
2009/2010
UNDP and Government of Uganda, Returning to uncertainty –addressing
vulnerabilities in Northern Uganda, 2008
United Nations Peacebuilding Programme in Uganda, Policing
Post-Conflict
Acholi Sub-Region: Progress, Challenges and Opportunities, June 2012
Studies:
Dan Ngabirano, A Baseline Survey of Uganda’s Legal Aid Service Providers,
2012
Danish Institute for Human Rights, Access to justice and legal aid in East
Africa. A comparison of the legal aid schemes used in the region and the
level of cooperation and coordination between the various actors, 2011
European Commission on Social Affairs and Equal Opportunities, Study on
the Situation of Women with Disabilities in light of the UN Convention on
the Rights of Persons with Disabilities, 2009
FIDA Uganda, In Multiple Systems of Justice in Uganda: Whither Justice for
Women? 2011
Human Rights Watch, As If We Weren’t Human Discrimination and
Violence against Women with Disabilities in Northern Uganda, 2010
ISIS-WICCE, Women’s Experiences of armed conflict in Uganda Gulu
district 1986-1999, 2001
Legal Action for People with Disabilities, Baseline Study report on violations
of Rights for the disabled women, 2011
Marianne Schulze, Handbook on the rights of persons with disabilities, 2010
Office of the United Nations High Commissioner for Human Rights,
Access
to Justice in Northern Uganda, 2008
Samuel B Tindifa, Listen to the People! Towards an Inclusive approach to
the peace process in Northern Uganda, HURIPEC Working paper No. 3 of
2006
UN Women, In Pursuit of Justice: Progress of the World’s women, 2012
Zahara Nampewo, Too few to worry about? Young, disabled, HIV positive
and female, HURIPEC Working paper No.35 of 2012
Policies, Principles and Guidelines:
Justice Law Order Sector, Draft National Legal Aid Policy, draft No. 6 final,
2012
Lilongwe Declaration on Accessing Legal aid in the criminal justice system in
East Africa, 2004 United Nations Convention on the Rights of Persons with
Disabilities United Nations Development Programme -Justice System
Programme,
Access to Justice Concept note, 2011 United Nations Economic and Social
Council, Commission on Crime
Prevention and Criminal Justice, Twenty-first session, 2012
United Nations Principles and Guidelines on Access to Legal Aid in the
Criminal Justice Systems
PILAC WORKING PAPER SERIES
1
Dan Ngabirano, Public Interest Litigation and the Provision of Legal Aid Services to Indigenous Communities:
The Case of the Batwa in Bundibugyo [January 2014]
2
Dorah Caroline Mafabi, Legal Aid - a Tenet for Access to Justice: The Case of Women with Disabilities in Post
Conflict Northern Uganda [January 2014]]
3
Dan Ngabirano : A Baseline Survey of Uganda’s Legal Aid Service Providers (2012), Public Interest Law Clinic
ABOUT THE AUTHOR
Dorah Caroline Mafabi is a lawyer and holds an LL.M. in Law and the Global
Economy from New York University, an LL.M. in International and Comparative
law from the National University of Singapore, LL.B (Hons) from Makerere
University, and a Post Graduate Diploma in Legal Practice.
With Support from: