Access to justice has been a major concern in Sierra Leone and a central theme for justice sector reform since the end of the decade long internecine war. This is so because it was one of the underlying causes of the armed conflict that virtually wrecked every institution in the country. On the eve of the war, only the few political elites, their cohorts and the wealthy had access to justice. The vast majority of Sierra Leoneans, especially the poor and less privileged, were denied actual access to justice. As a result, individuals who had been marginalized by the justice system whether overtly or covertly had very little or no confidence in the judiciary as the temple of justice. The rest can be left to history.
Recently though, international sensitivity to the imperatives of access to justice is gradually gathering momentum. Of the several roads to justice, the provision of legal aid, an important avenue through which the poor can access justice in civilised societies and acknowledge the same to meet their protective obligation and maintain peoples’ continued surrender of individual will to that of the common will, is fundamental and applied as a general tool at combating social exclusion in most jurisdictions. In fact it has been contended that the level of civility of any society is measured by her treatment of the disadvantaged groups in the society together with her efforts at narrowing down the social exclusion gap.
The concept of access to justice is today common to all civilised societies. It is a very broad term seldom used by international human rights instruments. There seem to be no obligation regarding access to justice as such under customary international law, but it is required in respect of specific human rights treaties which accords it considerable attention as being of paramount importance among the individual rights and freedoms. Access to justice is not only necessary for the continued maintenance of law and order but also to discourage people from succumbing to the temptation of self-help.
This work will not delve into the contentious debate of the definition and meaning of justice, nor navigate the unending discuss of the multifarious theories. It will be narrowed on the clinical examination of actual access to justice as it relates to access to courts through the provision of legal aid.
The term access to justice has been subjected to intense jurisprudential debate. For the purposes of this work, access to justice as a necessary condition for the rule of law implies the right to be dealt with fairly and obtain redress according to law in the event of injury. Put quite simply, it is the right to access an independent and impartial court and the opportunity to receive a fair and just trial when one’s liberty or property is at stake. This is provided under section 23(1) of the Constitution of Sierra Leone, 199. It states “Whenever any person is charged with a criminal offence he shall unless the charge is withdrawn, be afforded a fair hearing within a reasonable time by an independent and impartial court established by law”. This provision is also akin to Article 7 of the African Charter on Human and Peoples’ Rights, which provides inter alia that “every individual shall have the right to have his case heard.” It is amplified to extend to the right to petition to a competent national court against acts in violation of one’s fundamental rights; to presumption of innocence until otherwise proved; right of defence which may entail right to be represented by a counsel of his choice and right to speedy and impartial trial. Consequently, an accused standing trial obtains justice if he is availed of all these rights prescribed by law. Neither the state nor an individual is permitted in the absence of just cause to derogate from the enjoyment of these rights. It follows therefore that access to justice presupposes that litigants should have reasonable reach to rights prescribed by law whether as a defendant or a plaintiff.
The need for a legal aid scheme in Sierra Leone, as prescribed and implemented in Nigeria by the Legal Aid Council, the South African Legal Aid Board, and the Legal Services Commission Board of England and Wales, cannot be overstated. In fact there exists a range of international norms and standards that are relevant to the question of a state’s responsibility to provide legal aid. The International Covenant on Civil and Political Rights (ICCPR) sets out specific obligations of states to provide state-funded counsel for indigent persons. Article 14(3) of the ICCPR requires that an accused offender is entitled “to have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any case if he does not have sufficient means to pay for it”. This provision sets out among the minimum guarantees to which everyone is entitled, in full equality, in the determination of any criminal charge. This article is in tandem with Section 28(5)(a & b) of the Constitution of Sierra Leone 1991, which provides that Parliament shall make provision “for the rendering of financial assistance to any indigent citizen of Sierra Leone where his right under this Chapter has been infringed, or with a view to enabling him to engage the services of a legal practitioner to prosecute his claim; and for ensuring that allegations of infringements of such rights are substantial and the requirement or need for financial or legal aid is real.” With respect specifically to the situation of young persons charged with a crime, the Convention on the Rights of the Child requires states to ensure that “every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action”
Also, there is a strong proposition of a fundamental right of an innocent person not to be convicted. To do otherwise is a serious moral harm and the height of injustice. It is bad enough and fundamentally wrong to be convicted of an offence when one did not do the acts alleged or did not satisfy the fault element required. This is because the consequence of miscarriage of justice to the individual and the society is enormous particularly in a criminal proceeding where the police and the prosecutors have at their disposal immense public resources. In view of this, it could be contended that the immense resources of the law enforcement agencies should not be allowed to result to prejudice to defendant’s rights in the criminal justice system.
Moreover, for an accused to be tried without legal representation negates the principle of equality before the law. The ability to defend oneself adequately against a criminal charge should depend on ones’ financial resources. That aside, where the judiciary stands overwhelmed with gratuitous technicalities especially in the area of court procedure, access to justice is progressively more difficult for the poor, illiterate and powerless. Hence, it is important that the assistance of a lawyer is required to help navigate an often-complex labyrinth of legal norms and court procedures. That is, a lawyer’s assistance is indispensable for effective access to justice, particularly where legal representation was either compulsory or because of the complexity of the procedure or of the case.
Furthermore, to allow for free representation for the less privileged would be to respect the right of the innocent not to be convicted unjustly. In adversarial systems like Sierra Leone, legal services are necessary to provide ‘equal access to justice’ especially when the state has summoned its legal resources to prosecute an individual. The ultimate policy aim must be that any one with a legal problem has equal access to its just conclusion so that disputes are determined by the intrinsic merits of the arguments of either party and not by the inequalities of wealth and power. It is therefore axiomatic to customise legal aid from what it is usually seen around the world to wit Sierra Leone’s local circumstances, considering its level of illiteracy, and poverty prevalence.
Justice no doubt, is not static but a dynamic phenomenon, moving with the socio-economic and political conditions prevailing in the society. A society with maximum access to justice is a society in which the fair determination of rights and duties is not dependent and affected by the respective social, economic, political status or other inequalities of the parties in dispute. Since pervading poverty and illiteracy is plaguing Sierra Leone, its circumstance demand not only that justice is brought to the doorsteps of the people; but also that they are assisted by all means to obtain it.