By Rupert Bedford. Published in medium.com, 8th February 2017.
Legal aid for the poorest and most vulnerable people in society is under constant threat around the world, even in the most developed countries. However in many developing countries the lack of basic legal aid contributes to injustice on an almost unimaginable scale.
Nowhere is this more evident than in the field of criminal justice, where people's very liberty is at stake.
The fact is that, in many countries across the globe, people are still routinely arrested and locked up in police cells with no realistic prospect of meaningful early access to a lawyer or advisor. And as a result the door is left wide open to arbitrary detention, appalling mistreatment in custody and little chance of a fair trial.
It would be churlish, in this context, to hold up the UK justice system as some kind of beacon. It's muddled and disjointed colonial legacy in terms of justice systems is clear to all. Moreover, as any criminal lawyer will tell you, Government's of all persuasions find any excuse they can to continue to fleece our legal aid system to the point of collapse.
But the fact is that somehow in the UK we have managed to retain (for the moment) an important 'red line' in criminal legal aid provision. Namely that it is a fundamental right of any person arrested to have meaningful access to a lawyer or advisor at the police station free of charge and irrespective of means.
In my capacity as a criminal justice lawyer I have attended many clients in police stations and seen first hand how the simple presence of a representative at the station can temper the actions of officers and bring an element of accountability to a given case. Of course it is the case that a poor or ineffective representative/lawyer can unwittingly lend credibility and authority to otherwise dubious interviewing practices of police officers, but that's another matter for another day.
So it was with interest that I recently had the opportunity to visit the Centre for Human Rights Education, Advice and Assistance (CHREAA), a small local NGO based in Blantyre, Southern Malawi. It is a small organisation which depends entirely on overseas aid for its precarious existence. Its staff mainly comprise community paralegals. And it is the only realistic source of legal aid for criminal suspects in the area.
Malawian legislation does actually provide suspects rights to see a lawyer, but this is not a meaningful right in practice. There are literally a handful of qualified legal aid lawyers in the whole country and no functioning state funded system to cover police station attendances. As a result it is a shocking fact that until recently the vast majority of suspects went through the entire criminal justice process without any form of legal advice.
CHREAA uses legal empowerment to try to address the balance.
Legal empowerment projects use a grassroots approach - mobilising communities by training up and deploying teams of grassroots legal advocates, otherwise known as 'community paralegals' or 'barefoot lawyers', to plug the legal aid gap in their area. In the same way that primary health workers provide frontline health care services in conjunction with doctors, community paralegals provide primary justice services in conjunction with lawyers.
These projects target a wide range of primary justice problems - from criminal justice, community land protection and environmental justice to health rights, citizenship and women's empowerment as well as other issues.
The Malawi Bail Project is one such project. It was established by English lawyer Charlotte Mackenzie during a two year placement working at CHREAA. It has trained a team of paralegals to provide legal aid services in police stations, prisons and courts.
I shadowed its team of paralegals on their daily rounds and witnessed their impact in the area. In a small custody room of Blantyre Police Station, for example, I watched as a group of suspects, huddled closely together on the floor, listened quietly and attentively to Elton, one of the paralegals, as he explained their right to bail. They were respectful, hanging on his every word. Which was understandable. As, at that point, he offered them their only hope of freedom.
Without legal advice or representation, bail applications are rarely made, even for minor offences, and thousands are detained unnecessarily for months or years. Prisons are overcrowded with insanitary conditions. Families are ripped apart. Traditional methods of legal aid remain unfeasible. Too few legal aid lawyers and too many suspects. The solution is legal empowerment. By training up CHREAA paralegals to educate suspects in group sessions to submit their own bail applications, the project is able to reach a wider audience and make a much greater impact. An imperfect situation perhaps, but an innovative solution.
The key was to focus on a specific area; in this case bail, thereby increasing the potential for an understanding of law and practice by both paralegal and suspect.
Paralegals are not a new concept. Law firms around the world have increasingly used them as low paid support workers. However community paralegals are different. They typically work for civil society groups and tend to be locals drawn from the community they serve. As a result they are afforded greater autonomy and responsibility and exhibit a strong commitment to the community as their client.
Legal empowerment projects are not confined to Malawi. They are emerging in response to the legal aid crisis in developing countries around the world. And organisations such as Namati are coordinating and growing a global network of practitioners in the field.
The Malawi Bail Project is ongoing and its work will be needed for years to come. I was reminded of this as we left Chichiri Prison, located just outside Blantyre, following an afternoon advice session. Elton told me that one of the inmates had approached him for advice. It emerged that he had been held on remand there for over two years, on a relatively minor offence, without ever once having made an application for bail. They would be taking the case up.
Interested in finding out more about legal empowerment? Check out Namati.