Proposals for inclusion in the Constitutional Amendment Bill

27 August 2014 -

Written by Laspnet

LASPNET held the 2^nd national legal aid conference in June 2014, in which it was revealed that Government will modify the Constitution (amendment) Act 2005. The participants identified a need for constitutional provisions to ensure that every person receives legal advice and assistance, as well as court representation - where the interests of justice so require.

In Uganda, the above “interests of justice” test is only restricted to capital offences and cases attracting life sentences. However this is considered to be unduly restrictive. The LASPs recommend that legal advice and assistance should be given to all the poor, marginalised and vulnerable persons. It is then reasonable to restrict legal representation to criminal cases where the interests of justice are satisfied and in civil proceedings where the matter is serious, complex and there is a very likely prospect of success.

According to the Draft National Legal Aid Policy, it is acknowledged that the context in Uganda requires a realistic balance between what the State can provide and what it must provide. It suggests that where, for instance, the indigent person cannot understand the court proceedings or present their case and is a child in need of protection, woman in vulnerable circumstances, immigrant, refugee, asylum-seeker, an internally displaced person, suspect in criminal proceedings, prisoner, aged, person with a serious health condition (including HIV/AIDS), or who is mentally fragile, or physically disabled, or an unskilled labourer, the interests of justice are satisfied.

The draft Policy further argues that where the person – is likely to lose their liberty or their livelihood; or is a victim of a crime; or is a party to a case involving a substantial question of law; or is a party to proceedings which may involve the tracing, interviewing or expert cross-examination of witnesses; or is a party to a case in which the court is of the opinion that such a person cannot have a fair trial unless he or she is represented; then again, the interests of justice require him or her to receive legal representation.

In view of the above, LASPNET supports the proposal for establishment of a national legal aid body and cooperation partnerships with non-state actors to ensure that every needy person in Uganda has access to legal advice and assistance as well as legal representation when this is required. Such an arrangement can provide measures for avoiding complex judicial procedures and support the people in vulnerable circumstances to promptly access justice.

Therefore the following amendments are proposed with reference to Article 28 of the Constitution:

That article 28(3) goes beyond criminal offences and provides that “Every person who is charged with an offence shall–”
That article 28(3)(b) stating “be informed immediately, in a language that the person understands, of the nature of the offence” is revised to include “on arrest or detention”
That article 28(3)(c) on time and facilities given to a person charged with an offence be improved to focus on affordability by providing that “in case he or she cannot afford a lawyer, be referred to a legal aid provider for legal advice and/or assistance in preparation of his or her defence;
That article 28(3)(d) puts further emphasis on use of alternative dispute resolution mechanisms by providing that “be invited to settle the matter through mediation, where the parties agree and the matter is appropriate, and in case of further pursuance of the matter be permitted to appear before the court in person or, at that person’s own expense, by a lawyer of his or her choice”
That article 28(3)(e) is modified to conform with international jurisprudence by providing that “where the interests of justice so require, be entitled to legal representation at the expense of the State in civil and criminal proceedings throughout all stages (pre-trial, trial and post-trial)”

In addition, other new sections are proposed to be included under Article 28 as follows:

(13) There shall be a national legal aid body whose composition and functions shall be prescribed by an Act of Parliament.
(14) The national legal aid body shall be established within one year after coming into force of the Constitution (amendment) Act, 2014.
(15) In conduct of its functions, the national legal aid body shall be independent and not be subject to the direction of any person or authority but accountable to Parliament.
(16) The national legal aid body shall, where appropriate, work with the Local Council and Khadi Courts as well as traditional or other dispute resolution bodies outside the formal justice system to handle minor criminal, small claims, and civil cases in line with international standards and best practice.
(17) There shall be a Law Council to exercise general supervision and control over the legal profession as well as provision of legal aid and advice to indigent persons in Uganda.
(18) The State shall adopt appropriate policies that promote cooperation with non-state actors during the provision and supervision of free legal services.
(19) Parliament shall make laws for the purpose of giving effect to this article.