An independent legal profession is one of the pillars upon which respect for human rights and the rule of law rests.[1] Lawyers have an essential function in protecting human rights and ensuring the fair and effective administration of justice. Among other things, lawyers can play a critical role in protecting the right to liberty and the prohibition against arbitrary detention when representing people deprived of their liberty, including in proceedings challenging the legal basis of arrests and filing habeas corpus petitions. They also are key to ensuring protection of fair trial rights when working to defend individuals charged with criminal offences. They play a crucial part in combating impunity, when advising and representing victims of human rights violations and their relatives, including in the context of criminal cases brought against the alleged perpetrators and in proceedings aimed at obtaining other forms of reparation.
The ICCPR, the African Charter on Human and People’s Rights and other international standards guarantee the right of all persons charged with a criminal offence to access to counsel, and the right to defend themselves against the charges with the assistance of counsel. Those who do not have counsel of choice to represent them are entitled to have legal assistance assigned to assist in their defence in any case where the interests of justice so requires, free of charge, if the accused cannot afford to pay.[2] The UN Principles and Guideline on Access to Legal Aid in Criminal Justice and the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa provide, and the Human Rights Committee has clarified that the gravity of the offence, the complexity of the case and the severity of the potential penalties are important factors in deciding on whether the “interests of justice” require appointment of a lawyer. Effective assistance by a lawyer, free of charge if necessary, is considered to be a fundamental requirement in death penalty cases.[3] At the regional level, the right to a fair trial has been interpreted as requiring the State to ensure the assistance of a lawyer, again free of charge if necessary, also in at least some non-criminal (e.g., civil) proceedings.[4]
The Constitution recognizes the right to a fair hearing, which includes for persons who are charged with a criminal offence the entitlement to present a defence either directly or through a chosen legal representative.[5] They must be given adequate time and facilities for the preparation of the defence.[6]
Parties to cases heard in the Swazi National Courts – including those charged with offences, are not permitted the right to counsel.[7] Legal representation is also not allowed in the Small Claims Court.[8]
In the Industrial Court in Swaziland, the parties to the proceeding may opt to be represented by a legal practitioner or “any other person authorized by such party”.[9] While the provision was intended to improve access to justice, aiming to do away with the technical barriers and expense the involvement of a lawyer may entail, it has achieved the contrary: the lack of legal training and understanding of procedure and court rules of these ‘labour consultants’ has impacted negatively on the delivery of justice.[10]
Despite reports that a majority of cases concern people who cannot afford the services of a lawyer,[11] there is no provision in the law of Swaziland for the provision of legal aid. Legal aid is however, currently provided by the government for accused charged with a crime that may attract capital punishment[12] and on an ad hoc basis by some NGO’s in other cases[13].
The fact that legal counsel or representation is not allowed in Swazi National Courts, which have limited criminal jurisdiction, does not comply with international and regional standards that guarantee the right of all persons charged with a criminal offence to access to counsel and to defend themselves against the charges with the assistance of counsel. Further, the lack of a legal aid scheme outside of death penalty cases, may in certain cases, where the interest of justice would require the assistance of a lawyer, entail a violation of the right to a fair trial.
- 1. Lawyers’ essential role in defending human rights and the rule of law has been underscored repeatedly by United Nations authorities, see inter alia General Assembly, Strengthening the rule of law: Report of the Secretary-General, UN Doc. A/57/275 (2002), ”para.Human Rights Council, Resolution on the Independence and impartiality of the judiciary, jurors and assessors, and the independence of lawyers, A/HRC/RES/23/6, (2013) Pre-amble.↵
Increasingly the importance of the rule of law in ensuring respect for human rights, and of the role of judges and lawyers in defending human rights, is being recognized. Significant attention is already being given to structural issues, such as the importance of national systems for the promotion and protection of human rights, and the role of national action plans and national human rights institutions in the Office’s human rights programmes. In the future, it will be important to place particular emphasis on the role of judges and lawyers and on the role of the international community in providing materials and case law for use by judges in this area. It will also be important to organize more and more exchanges of experiences among judges and lawyers at the national, regional, subregional and international levels so as to enhance progressively the role of judges and lawyers in the promotion and protection of human rights worldwide. In undertaking these activities, the Office will collaborate, as necessary, with the Special Rapporteur on the independence of judges and lawyers, to whom the Office provides the support necessary for the discharge of his mandate.
- 2. ICCPR, ”ArticleAfrican Charter on Human and People’s Rights, Article 7;
3. In the determination of any criminal charge against him, everyone shall be entitled to the following minimum guarantees, in full equality: …
(d) To be tried in his presence, and to defend himself in person or through legal assistance of his own choosing; to be informed, if he does not have legal assistance, of this right; and to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it;
UN Basic Principles on the Role of Lawyers, Principle 6;1. Every individual shall have the right to have his cause heard. This comprises: (a) the right to an appeal to competent national organs against acts of violating his fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force; (b) the right to be presumed innocent until proved guilty by a competent court or tribunal; (c) the right to defense, including the right to be defended by counsel of his choice; (d) the right to be tried within a reasonable time by an impartial court or tribunal.
2. No one may be condemned for an act or omission which did not constitute a legally punishable offence at the time it was committed. No penalty may be inflicted for an offence for which no provision was made at the time it was committed. Punishment is personal and can be imposed only on the offender.
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article H.Any such persons who do not have a lawyer shall, in all cases in which the interests of justice so require, be entitled to have a lawyer of experience and competence commensurate with the nature of the offence assigned to them in order to provide effective legal assistance, without payment by them if they lack sufficient mean
See UN Principles and Guidelines on the Access to Legal Aid in Criminal Justice Systems Proceedings.↵(a) The accused or a party to a civil case has a right to have legal assistance assigned to him or her in any case where the interest of justice so require, and without payment by the accused or party to a civil case if he or she does not have sufficient means to pay for it.
(b) The interests of justice should be determined by considering:
1. in criminal matters:
i) the seriousness of the offence;
ii) the severity of the sentence.2. in civil cases:
i) the complexity of the case and the ability of the party to adequately represent himself or herself;
ii) the rights that are affected;
iii) the likely impact of the outcome of the case on the wider community.(c) The interests of justice always require legal assistance for an accused in any capital case, including for appeal, executive clemency, commutation of sentence, amnesty or pardon.
(d) An accused person or a party to a civil case has the right to an effective defence or representation and has a right to choose his or her own legal representative at all stages of the case. They may contest the choice of his or her court-appointed lawyer.
(e) When legal assistance is provided by a judicial body, the lawyer appointed shall:
1. be qualified to represent and defend the accused or a party to a civil case;
2. have the necessary training and experience corresponding to the nature and seriousness of the matter;
3. be free to exercise his or her professional judgement in a professional manner free of influence of the State or the judicial body;
4. advocate in favour of the accused or party to a civil case;
5. be sufficiently compensated to provide an incentive to accord the accused or party to a civil case adequate and effective representation.(f) Professional associations of lawyers shall co-operate in the organisation and provision of services, facilities and other resources, and shall ensure that:
1. when legal assistance is provided by the judicial body, lawyers with the experience and competence commensurate with the nature of the case make themselves available to represent an accused person or party to a civil case;
2. where legal assistance is not provided by the judicial body in important or serious human rights cases, they provide legal representation to the accused or party in a civil case, without any payment by him or her.(g) Given the fact that in many States the number of qualified lawyers is low, States should recognize the role that para-legals could play in the provision of legal assistance and establish the legal framework to enable them to provide basic legal assistance.
(h) States should, in conjunction with the legal profession and non-governmental organizations, establish training, the qualification procedures and rules governing the activities and conduct of para-legals. States shall adopt legislation to grant appropriate recognition to para-legals.
(i) Para-legals could provide essential legal assistance to indigent persons, especially in rural communities and would be the link with the legal profession.
(j) Non-governmental organizations should be encouraged to establish legal assistance programmes and to train para-legals.
(k) States that recognize the role of para-legals should ensure that they are granted similar rights and facilities afforded to lawyers, to the extent necessary to enable them to carry out their functions with independence.
- 3. UN Principles and Guidelines on the Access to Legal Aid in Criminal Justice Systems Proceedings, UN Doc. A/RES/67/187 (2013), ”PrinciplePrinciples and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article H(b);
Legal aid for persons suspected of or charged with a criminal offence.
20. States should ensure that anyone who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice process.
21. Legal aid should also be provided, regardless of the person’s means, if the interests of justice so require, for example, given the urgency or complexity of the case or the severity of the potential penalty.
22. Children should have access to legal aid under the same conditions as or more lenient conditions than adults.
23. It is the responsibility of police, prosecutors and judges to ensure that those who appear before them who cannot afford a lawyer and/or who are vulnerable are provided access to legal aid.
Human Rights Committee, General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, UN Doc. CCPR/C/GC/32 (2007), ”para.(b) The interests of justice should be determined by considering:
1. in criminal matters:
i) the seriousness of the offence;
ii) the severity of the sentence.2. in civil cases:
i) the complexity of the case and the ability of the party to adequately represent himself or herself;
ii) the rights that are affected;
iii) the likely impact of the outcome of the case on the wider community.↵Third, article 14, paragraph 3 (d) guarantees the right to have legal assistance assigned to accused persons whenever the interests of justice so require, and without payment by them in any such case if they do not have sufficient means to pay for it. The gravity of the offence is important in deciding whether counsel should be assigned “in the interest of justice” as is the existence of some objective chance of success at the appeals stage. In cases involving capital punishment, it is axiomatic that the accused must be effectively assisted by a lawyer at all stages of the proceedings. Counsel provided by the competent authorities on the basis of this provision must be effective in the representation of the accused. Unlike in the case of privately retained lawyers, blatant misbehaviour or incompetence, for example the withdrawal of an appeal without consultation in a death penalty case, or absence during the hearing of a witness in such cases may entail the responsibility of the State concerned for a violation of article 14, paragraph 3 (d), provided that it was manifest to the judge that the lawyer’s behaviour was incompatible with the interests of justice. There is also a violation of this provision if the court or other relevant authorities hinder appointed lawyers from fulfilling their task effectively.
- 4. The Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, Adopted by the African Commission on Human and People’s Rights, Article Hexplicitly provides for a right to legal assistance in civil cases where the interests of justice so require, to be determined in light of the complexity of the case, the rights that are affected and the likely impact of the outcome of the case on the wider community. Also see the jurisprudence of the European Court of Human Rights on the interpretation of Article 6 ECHR: Airey v. Ireland, Application No. 6289/73 (1979), para. 26 ; also see McVicar v. United Kingdom, Essaadi v. France, Application No. 49384/99 (2002), P., C., and S. v. the United Kingdom, Application No. 56547/00 (2002) and Steel and Morris v. United Kingdom, Application No. 68416/01 (2005). The Inter-American Court of Human Rights has addressed the need to remove obstacles in access to justice that might originate from a person’s economic status, including by ensuring free legal assistance, in Advisory Opinion OC-11/90; also see Advisory Opinion OC-18/03 on “juridical condition and rights of undocumented migrants” and Inter-American Commission on Human Rights, Report on Terrorism and Human Rights.↵
(a) The accused or a party to a civil case has a right to have legal assistance assigned to him or her in any case where the interest of justice so require, and without payment by the accused or party to a civil case if he or she does not have sufficient means to pay for it.
(b) The interests of justice should be determined by considering:
1. in criminal matters:
i) the seriousness of the offence;
ii) the severity of the sentence.2. in civil cases:
i) the complexity of the case and the ability of the party to adequately represent himself or herself;
ii) the rights that are affected;
iii) the likely impact of the outcome of the case on the wider community.(c) The interests of justice always require legal assistance for an accused in any capital case, including for appeal, executive clemency, commutation of sentence, amnesty or pardon.
(d) An accused person or a party to a civil case has the right to an effective defence or representation and has a right to choose his or her own legal representative at all stages of the case. They may contest the choice of his or her court-appointed lawyer.
(e) When legal assistance is provided by a judicial body, the lawyer appointed shall:
1. be qualified to represent and defend the accused or a party to a civil case;
2. have the necessary training and experience corresponding to the nature and seriousness of the matter;
3. be free to exercise his or her professional judgement in a professional manner free of influence of the State or the judicial body;
4. advocate in favour of the accused or party to a civil case;
5. be sufficiently compensated to provide an incentive to accord the accused or party to a civil case adequate and effective representation.(f) Professional associations of lawyers shall co-operate in the organisation and provision of services, facilities and other resources, and shall ensure that:
1. when legal assistance is provided by the judicial body, lawyers with the experience and competence commensurate with the nature of the case make themselves available to represent an accused person or party to a civil case;
2. where legal assistance is not provided by the judicial body in important or serious human rights cases, they provide legal representation to the accused or party in a civil case, without any payment by him or her.(g) Given the fact that in many States the number of qualified lawyers is low, States should recognize the role that para-legals could play in the provision of legal assistance and establish the legal framework to enable them to provide basic legal assistance.
(h) States should, in conjunction with the legal profession and non-governmental organizations, establish training, the qualification procedures and rules governing the activities and conduct of para-legals. States shall adopt legislation to grant appropriate recognition to para-legals.
(i) Para-legals could provide essential legal assistance to indigent persons, especially in rural communities and would be the link with the legal profession.
(j) Non-governmental organizations should be encouraged to establish legal assistance programmes and to train para-legals.
(k) States that recognize the role of para-legals should ensure that they are granted similar rights and facilities afforded to lawyers, to the extent necessary to enable them to carry out their functions with independence.
- 5. Constitution, S. 21(2)(e).↵
- 6. Constitution, S. 21(2)(d).↵
- 7. Constitution, S. 21(13)(b).↵
- 8. Small Claims Court Act, S. 8(2).↵
- 9. Industrial Relations Act, S. 10.↵
- 10. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 130.↵
- 11. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 130-131.↵
- 12. Constitution, S. 21(2)recognizes entitlement in cases of alleged offences that carry the death penalty or imprisonment for life.↵
(2) A person who is charged with a criminal offence shall be-
(a) presumed to be innocent until that person is proved or has pleaded guilty;
(b) informed as soon as reasonably practicable, in a language which that person understands and in sufficient detail, of the nature of the offence or charge;
(c) entitled to legal representation at the expense of the government in the case of any offence which carries a sentence of death or imprisonment for life;
(d) given adequate time and facilities for the preparation of the defence;
(e) permitted to present a defence before the court either directly or through a legal representative chosen by that person;
(f) afforded facilities to examine in person or by a legal representative the witnesses called by the prosecution and to obtain the attendance of witnesses to testify on behalf of that person on the same conditions as those applying to witnesses called by the prosecution; and
(g) permitted to have, without payment, the assistance of an interpreter if that person cannot understand the language used at the trial.
- 13. Maxine Langwenya, Swaziland: Justice Sector and Rule of Law. A review by AfriMAP and the Open Society Initiative for Southern Africa (March 2013), p. 22.↵
Comments are closed.