When I wrote last week, I thought it necessary to mention that my intention was to foster public debate and discourse on the feasibility of a national legal aid project for indigent litigants. I sought to examine the role played by the administration of justice and lawyers in facilitating or hampering legal access. In the second part of the article I wish, among other things, to join issue with some of the arguments advanced by those who represent the interest of the legal profession. As previously promised, I propose in this part to tackle the thorny issue of how the legal framework and the profession might be restructured with the view to granting the poor improved access to justice. I argue that this process is already underway but that until now it has escaped the attention of lawyers so that there is nothing really new about my proposals. This is all done in an attempt to help policymakers find a fresh point of view.
Some people will tell you that lawyers should appear in the customary courts because they are trained in the law and experienced in litigation and this would minimise the high incidence of miscarriage of justice. Indeed, this argument has only recently been advanced by my eminent friend and Chairperson of the Law Society of Botswana, Mr Duma Boko. With equal plausibility, however, one can argue that customary courts have served Batswana relatively well since the Protectorate era when these courts were first formally established; that over the years, a competent cadre familiar with the system (even before the advent of the legal profession) has developed; and that familiarity with this system is an element of strength.
To be sure, my own feelings are that what Boko was effectively saying was that lawyers are in search of a new (lucrative?) market that must be opened for them in an area where traditionally they have been excluded. I did not understand him to be seriously contending that by giving lawyers a right to appear in customary courts ipso facto guarantees access to justice for the poor, nor that lawyers would be involved in these courts pro deo (in the name of God) or would take cases pro bono publico (for the public good). But of one fact I am certain, that to permit lawyers to represent their clients in the customary courts does make good business sense.
Nor do I understand Boko to be implying that the practical consequences of excluding lawyers from the customary courts is itself a denial of fair hearing to those who are summoned before or decide to take their disputes to these courts. Simply put, the right to a fair hearing means that a party must be given an opportunity of appearing before the courts and must know all the evidence or information on which to answer the case against him or her. While this rule of fairness presumes the right to be given an oral hearing, there is nothing in this to imply that a person who is entitled to be heard orally is at the same time entitled to appear in court with the assistance of a lawyer. In any event, those who face the misfortune of appearing before customary courts are entitled to legal representation though not to representation by legal practitioners (that is, an advocate or attorney).
The crucial thing when it comes to customary courts (as in courts generally) is whether at the end of the day the persons affected did have a proper opportunity to put their case by giving evidence and being allowed to put questions to witnesses called by the opposing party to testify at the trial or hearing. Thus, in the customary courts a fair hearing is possible without the involvement of advocates or attorneys. Such involvement can often result in slowing down the wheels of justice as so often is the case in the magistrates’ courts. Besides, the use of customary law rules is of the greatest importance to customary (as against western) notions of justice, and ought to be relied on more frequently. In contrast, this element of co-ownership is sorely missed in the modern court system. Rather, the legal system has over the years developed rather queer and complex evidential and procedural rules that leave the parties bemused as lawyers are allowed to fruitlessly indulge in semantics and histrionics, often at great cost to their clients.
The Law Society chairperson also remarked that the gaols are full of prisoners and (without qualification) attributed this to the fact that lawyers are not allowed to appear for those tried in the customary courts. Once again, it will be noted that this is a complaint about possible miscarriage of justice as opposed to access to justice.
But the parliamentarians acknowledge this and therefore have crafted various interventions. They are fully conscious that in some instances parties can face charges or allegations of such gravity, complexity and possible sanctions that the requirements of a fair hearing demand that a party be represented by a lawyer. Hence, they have clearly limited the ordinary judicial powers of customary courts just as they have done with respect to the magistrates’ courts in which lawyers are permitted to appear. For example, the customary courts are not allowed to try such criminal offences as treason, murder, or rape; they are also not allowed to hear such civil disputes as divorce, insolvency, or disposition of property involving a will.
To illustrate the point made above, some of the control mechanisms are as follows: any person who is a party to a dispute in the customary court may in a proper case have the case transferred to another court such as the magistrate’s court; the proceedings of customary courts may be revised by a magistrate of his own motion or at the instance of an aggrieved parties; the decisions made by customary courts can be appealed against to by the higher courts where the persons affected choose to do so.
Therefore, there are valid reasons why lawyers have legitimately been excluded from the customary courts. Furthermore, it is a widely held view of many people in this country that the traditional monopoly of lawyers in other courts and administrative tribunals that exercise quasi judicial functions or in specific areas of practice should be jettisoned.
At the beginning of this article I suggested that the legal profession be restructured with the objective of granting better access to justice by all. It was noted that this process is well underway but perhaps it has escaped the attention of lawyers, and that my ideas were not new. However good our legal system may be in other respects, the fact is that its (sometimes unnecessary) complexity and cost are factors that militate against wider utilisation. When ordinary citizens feel that the legal system fails to protect them, there is little reason why they should continue to respect the law. What then, is to be done?
First, it should be noted that the trend worldwide is to make certain courts and tribunals user friendly by simplifying rules of evidence and procedure and dispensing with the need to have representation by counsel. This means that the presiding officer and other court officials are required to play a more active role in legal proceedings. This is already happening in the Industrial Court and the Land Tribunal, where there is no monopoly of advocates or attorneys. Presumably, a Small Claims Court, once established, would also take a similar approach; so, too, could a family court to hear, for example, adoption of children, affiliation and maintenance, divorce, etc).
In the context of publicly funded legal aid, the reorganisation or restructuring of the legal system to ensure access to justice by the greatest possible number has other implications. For the sake of completeness, I list the most important matters that would require attention. First, legal services would be provided at no cost or a reduced fee by legal practitioners drawn from a broad range, including private legal firms. Second, legal assistance organisations (eg, the UB Legal Clinic and Ditshwanelo) could assist in the training of paralegals. Third, legal practitioners and their pupils would be required to undertake specified hours or days of pro bono work each year; such service would be a prerequisite to the issuance of a practising certificate in the applicable year.
Lastly, there is the important question whether and to what extent persons who are trained in one or some aspects of law, but are neither in possession of a legal qualification nor a practising certificate, may engage in the practice of law. Currently, a person who is not admitted and enrolled by the High Court, or even though admitted and enrolled, but has not been issued with a practising certificate by the Law Society, cannot practice law in this country. This prohibition has the practical consequence that a person who is not a lawyer although vastly experienced in, say, the registration of deeds documents or drafting leases, but has nothing to do with litigation, cannot practice. There is also a class of persons who, though not lawyers, are trained in law. This class includes those who hold university diplomas in law, who are also unauthorised to practise law.
It is necessary that in the quest to improve access to justice by all, the classes mentioned above be looked at carefully with a view to allowing them to carry out those functions that they are trained in. While they no doubt can represent their clients, act as their agents, and draft papers in their behalf, the important issue is of course whether and how they can handle money and receive funds for them. This issue is one that presents difficulty and on which I invite the reader to comment.
Michael Mothobi can be contacted at [email protected]
