MAKERERE
UNIVERSITY
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
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
permission or in accordance with the provisions of the Copyright, Designs and Patents Act, or
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
ACRONYMS
ACHPR
African Charter on Human and Peoples
Rights
ACRWC
African Charter on the Rights and Welfare of
the Child
ADR
Alternative Dispute Resolution
CEDAW
Convention on the Elimination of all forms of
Discrimination against Women
CESCR
Convention on Economic, Social and Cultural
Rights
CRPD
Convention on the Rights of Persons with
Disabilities
ICCPR
International Convention on Civil and Political
Rights
IDP
Internally Displaced People
JLOS
Justice Law Order Sector
LC
Local Council
LRA
Lord’s Resistance Army
NDP
National Development Plan
OHCHR
Office of the UN High Commissioner for
Human Rights
PWDs
Persons With Disabilities
UNCRC
United Nations Convention on the Rights of
the Child
i
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 27th September 2013 are also acknowledged.
ii
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.
iii
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.1 Access
to justice does not only involve judicial recourse, but the availability of
accessible, affordable, timely and effective means of redress or remedies.2
Access to justice encompasses recognition that everyone is entitled to
the protection of the law and that rights are meaningless unless they are
enforced.3 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.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
1
2
3
4
5
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
the region and the level of cooperation and coordination between the various actors (2011) 16.
1
Legal Aid - a Tenet of Access to Justice
of the human rights.6 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.7 A
study by the Danish Institute for Human Rights (2011)8 recognises that
access to justice should focus on outcomes and remedies rather than merely
on institutions, and should involve elements such as:
[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
6
7
8
Zahara Nampewo ‘Uphill progress or downhill degeneration? Local council courts and access to
justice for local users’ HURIPEC working paper No. 29 (2010) 5.
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.
2
Legal Aid - a Tenet of Access to Justice
law enforcement and justice institutions.9 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.10
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.11 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.12 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.13 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.14 Deformities both physical and emotional still remain as scars
reminiscent of the brutality of humanity.15 The lack of and inadequate health
care infrastructure during the conflict also left many people susceptible
to epidemics including polio.16 Injuries arising from landmines were also
common and many became disabled as a result. The case of Jackie Atim17
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.
9
10
11
12
13
14
15
16
17
Office of the UN High Commissioner for Human Rights ‘Access to Justice in Northern Uganda’
(2008) 5.
UNDP (n 4 above) 33.
Sam Tindifa ‘Listen to the People! Towards and inclusive approach to the Peace Process in Northern
Uganda’ (2006) 19.
Tindifa (as above) 20.
FIDA Uganda ‘In the multiple systems of justice in Uganda: whither justice for women?’ (2011) 9.
As above.
UN Peacebuilding Programme ‘Policing Post-Conflict Acholi sub-region: progress, challenges and
opportunities’ (2012) 45.
Internal Displacement Monitoring Center ‘Need to focus on returned and remaining IDPs in transition
to development’ (2012) 5.
The names of the women with disabilities interviewed for this research have been changed to protect
their confidentiality. Pseudonyms have therefore been adopted.
3
Legal Aid - a Tenet of Access to Justice
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.18 Many women with disabilities continue to face difficulty
carrying out their daily work and have to rely on support from their
dependants and relatives.19 This is as a result of the erosion of the community
networks that might have bolstered women with disabilities in the past.20
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…”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.22 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.23 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…”24
18
19
20
21
22
23
24
Human Rights Watch ‘As if we weren’t human’ Discrimination and Violence against Women with
Disabilities in Northern Uganda’ (2010) 6.
Isis-WICCE ‘Women’s experiences of armed conflict in Uganda Gulu district 1986-1999’ (2001)
51.
Human Rights Watch (n 18 above) 22.
Stella Arach’s house in Bungatira sub-county, Gulu district interviewed on Tuesday 21st May 2013.
Human Rights Watch (n 20 above) 27.
Marianne Schulze ‘Understanding the UN convention on the rights of persons with disabilities
-Handbook on the human rights of women with disabilities’ (2010) 65.
Grace Akello’s house in Peace and division sub-county, Gulu district Wednesday 22nd May 2013.
4
Legal Aid - a Tenet of Access to Justice
The discriminatory attitudes have remained a major barrier to the full
inclusion of women with disabilities in efforts to rebuild a functioning
society.25 They face several discriminations and are often excluded from
community meetings and rarely take part in decision making processes.26
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.27 This reality has relegated them to unprecedented
levels of low self esteem and psychological and emotional distress.28 The
frequently abandoned women with disabilities face isolation and abuse as
the country begins to move forward without them.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.30 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
assistance, legal advice/ADR and legal information/education.31
25
26
27
28
29
30
31
Human Rights Watch (n 21 above) 6.
Note 23 above, 7.
As above.
Note 23 above.
Note 23 above.
Danish institute for Human Rights (n 8 above) 16.
As above.
5
Legal Aid - a Tenet of Access to Justice
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.32
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.”33 According to the Uganda National Household Survey of
2009/2010,34 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.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
32
33
34
35
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-innorthern-uganda.html (accessed 19 June 2013).
6
Legal Aid - a Tenet of Access to Justice
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.36 During the conflict, over 90% of the population in Gulu
district had to flee their homes.37 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.
7
Legal Aid - a Tenet of Access to Justice
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.
8
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)39 and
its optional Protocol40, the International Convention on Civil and Political
Rights (ICCPR),41 the International Convention on Economic, Social
and Cultural Rights,42 the Convention on the Elimination of all forms of
Discrimination against Women (CEDAW)43 and the Convention on the
Rights of the Child.44 Uganda is also a party to the African Charter on
Human and People’s Rights,45 the African Charter on the Rights and Welfare
of the Child46 and the Protocol to the African Charter on Human and
38
39
40
41
42
43
44
45
46
Convention on the Rights of Persons with Disabilities Article 13 Available at www.academia.
edu/207906.
CRPD was adopted on December 13th 2006, Uganda ratified on September 25th 2008.
Uganda ratified the optional protocol on September 25th 2008.
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.
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.
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.
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 2nd 1990, Uganda
ratified on August 17 1990.
See http://www1.umn.edu/humanrts/instree/z1afchar.htm.
See http://www1.umn.edu/humanrts/africa/afchild.htm.
9
Legal Aid - a Tenet of Access to Justice
People’s Rights on the Rights of Women in Africa (the Maputo Protocol).47
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 CRPD48 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.49 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.50 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.
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”.51 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
47
48
49
50
51
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.
See http://www.un.org/disabilities/convention/conventionfull.shtml.
Article 1, CRPD.
Article 6, CRPD.
United Nations Population Fund Wellesley Centres for Women - Disability Rights, Gender, and Development
– A Resource Tool for Action (2008) 19.
10
Legal Aid - a Tenet of Access to Justice
to ensure that they can participate in all areas of social and cultural life’.52
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 systems53 and provides under
Article 13(1) that;
52
53
Committee on the Elimination of Discrimination against Women General Recommendations No.18
(Tenth session 1991.
Article 13 CRPD See www.academia.edu/207906 Article 13.
11
Legal Aid - a Tenet of Access to Justice
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.”54 It requires State Parties to provide structural and
administrative measures to better promote access to justice for persons with
disabilities.55 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 followup of public policies and programmes under the Copenhagen Declaration
and Programme of Action56.
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’.57 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.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.59 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
54
55
56
57
58
59
Article 13 (2).
Article 6, CRPD.
Copenhagen Declaration and Programme of Action 1995 Commitment 5.
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.
Id.
See www.guardian.co.uk/law.
12
Legal Aid - a Tenet of Access to Justice
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.60
2.1.3 Right to Legal Aid
The Protocol to the African Charter on Human and Peoples’ Rights on the
Rights of Women in Africa61 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.62
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 Declaration63 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.
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.
60
61
62
63
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
on Legal Aid in Criminal Justice: the Role of Lawyers, Non-lawyers and other services providers.
Lilongwe-Malawi, November 22-24, 2004.
13
Legal Aid - a Tenet of Access to Justice
Article 2 of the ICCPR obligates State Parties to make available, without
cost, legal representation64 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;65 it limits provision of
legal aid to capital offenses. The United Nations Basic Principles on the Role
of Lawyers66 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.
The United Nations Principles and Guidelines on Access to Legal Aid
in Criminal Justice Systems67 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 26th Ordinary
Session,68 the African Commission on Human and Peoples’ Rights adopted
the Dakar Declaration69 which reaffirms the commitment of states to the
64
65
66
67
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 ‘8th United Nations Congress on Prevention of Crime and
the Treatment of Offenders, Havana 27 August – 7 September’ 1990 UN DOC.A/CONF.144/28/
Rev.1 at 118 (1990).
United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems adopted
at the 67th session of the United Nations in 2012.
The 26th Ordinary Session of the African Commission on Human and Peoples’ Rights took place
from 1st -15th 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
African Commission and other international human rights bodies. In November 1999 at the 26th
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.
14
Legal Aid - a Tenet of Access to Justice
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.71 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…’72 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.73 The Constitution mandates Parliament
to enact laws appropriate for the protection of persons with disabilities.74
In 2006 Parliament enacted the Uganda Persons with Disabilities Act.75
The Disabilities Act is intended to among others eliminate all forms of
70
71
72
73
74
75
Gulu State Prosecutor’s office, Wednesday 22nd May 2013.
1995 Constitution of the Republic of Uganda.
Article 32 (1) Constitution.
Article 35 (1) Constitution.
Article 35 (2) Constitution.
Persons with Disabilities Act, 2006.
15
Legal Aid - a Tenet of Access to Justice
discrimination against persons with disabilities.76 The Act is however silent
on the need for legal aid services as a driver towards equality for persons
with disabilities.
In 2007, the Equal Opportunities Act77 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.78
To ensure effective decentralized promotion of the rights of persons with
disabilities, the National Council for Disability was established in 2003.79 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.
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 Act80 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
76
77
78
79
80
Long title of the Persons with Disabilities Act, 2006.
The Equal Opportunities Commission Act, 2007.
See http://www.mglsd.go.ug/?p=299.
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.
Cap 20, Laws of Uganda, 2000.
16
Legal Aid - a Tenet of Access to Justice
judge.81
The Uganda Law Council is mandated to exercise general supervision and
control over legal aid service provision in the country.82 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.
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
81
82
Section 3, Poor persons Defence Act, Cap 20.
Section 3 (e) Advocates Act, Cap 267 (as amended by Act No. 27 of 2002).
17
Legal Aid - a Tenet of Access to Justice
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.83 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.
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.84
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,85 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,
83
84
85
Daniel S. Manning Developments of a civil legal aid system –issues for consideration (2005) 1.
Id.
Airey V Ireland 32 Eur Ct Hr Ser. A (1979).
18
Legal Aid - a Tenet of Access to Justice
either because legal representation was rendered compulsory or by reason
of the complexity of the procedure or the case.
Legal aid for civil matters in Uganda is largely provided by non-state actors,
civil society organizations86 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.87
The draft Policy further recognises the principal areas of civil dispute to
include land, inheritance and family matters.88 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.
86
87
88
Ngabirano (n 62 above) 7.
Justice Law Order Sector –Draft National Legal Aid Policy (2012) 11.
Id.
19
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.89 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.
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.90 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.91 There are fewer
advocates in legal practice with over 85% concentrated in Kampala.92 As
a result, majority of Ugandans, 24 million, do not have adequate access
to lawyers.93 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…”94
89
90
91
92
93
94
Interview with JLOS Technical Advisor
Draft national legal aid policy (n 87 above) 14.
Note 84 above, 12.
As above.
Note 84 above.
Beatrice Adong, Paboo sub-county, Amuru district, Thursday 23rd May 2013.
20
Legal Aid - a Tenet of Access to Justice
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.95 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.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
96
97
98
See Article 28 (3)(e) 1995 Constitution.
Note 85 above, 18.
Legal Aid service provider’s office in Gulu district, Monday 20th May 2013.
Legal Aid service provider in Gulu district, Tuesday 21st May 2013.
21
Legal Aid - a Tenet of Access to Justice
3.2
Policy Instrument Scan
The Draft National Legal Aid Policy links with the 1995 Constitution,99
various legislations and regulations as well as the National Development Plan
(NDP).100 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.
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.101 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.
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
99
100
101
Article 21(4) 1995 Constitution –nothing in this article shall prevent Parliament from enacting laws
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.
22
Legal Aid - a Tenet of Access to Justice
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.103 The qualification for the means and merits test is benchmarked
on were the interest of justice demands.”104 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
102
103
104
Stella Atiku, office of the Gulu women with disabilities Monday 20th May 2013.
Note 92 above, 5.
Note 93 above, 29.
23
Legal Aid - a Tenet of Access to Justice
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
105
106
107
Draft national legal aid policy, Recommendation 27.
Karamela Awilo’s house in layibi go down, Gulu district Tuesday 21st May 2013.
Stella Aduko’s house, Obiya west, Gulu district Wednesday 22nd May 2013.
24
Legal Aid - a Tenet of Access to Justice
what is happening.108 Others are raped because of they are believed to be
asexual and thus free from HIV/AIDS.
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.109 It is therefore important that a minimum criteria for
the means and merits provides as a guiding framework.
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.110 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.111 According to one LC Councillor from Amuru District:
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
109
110
111
112
Zahara Nampewo, Too few to worry about? Young, disabled, HIV positive and female, HURIPEC Working
paper No.35 (2012) 26.
Gulu district offices, Tuesday 21st May 2013.
Leonora Atim’s house in Pabbo, Amuru district, Thursday 23rd May 2013.
Note 94 above, 11.
Amuru district Thursday 23rd May 2013.
25
Legal Aid - a Tenet of Access to Justice
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 providers114 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.
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.115 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
113
114
115
Note 109 above.
Note 96 above 13.
Note 97 above, 5.
26
Legal Aid - a Tenet of Access to Justice
providers.116 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.
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….”117 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.”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.
116
117
118
Note 98 above, 4.
Office of the Gulu women with disabilities union, Monday 20th May 2013.
Madiena Adong, Bungatira, Gulu district Monday 20th May 2013.
27
Legal Aid - a Tenet of Access to Justice
(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.
28
Legal Aid - a Tenet of Access to Justice
(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”.119 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.120
Discrimination was one of the major hindrances to access to justice and legal
119
120
Gulu district police headquarters, Wednesday 22nd May 2013.
Gulu district police headquarters, Wednesday 22nd May 2013.
29
Legal Aid - a Tenet of Access to Justice
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.”121 Women with disabilities 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].”122
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.
121
122
Joyce Atim, Office of the Gulu women with disabilities union, Tuesday 21st May 2013.
Gulu district chief magistrate’s office, Wednesday 22nd May 2013.
30
Legal Aid - a Tenet of Access to Justice
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.123
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
123
Gulu district Tuesday 21st May 2013.
31
Legal Aid - a Tenet of Access to Justice
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.”124 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.125
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.
124
125
Jessica Abalo’s house, Gulu district Tuesday 21st May 2013.
Grace Alal’s house, Gulu district Tuesday 21st May 2013.
32
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
33
Legal Aid - a Tenet of Access to Justice
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.
34
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
35
Legal Aid - a Tenet of Access to Justice
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
36
PILAC WORKING PAPER SERIES
1.
2.
3.
Dan Ngabirano, Public Interest Litigation and the Provision of Legal Aid Services to Indigenous Communities: The
Case of the Batwa in Bundibugyo [January 2014]
Dorah Caroline Mafabi, Legal Aid - a Tenet for Access to Justice: The Case of Women with Disabilities in Post
Conflict Northern Uganda [January 2014]]
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: