BROADENDING ACCESS TO JUSTICE:

A Civil Society Position Paper on the  
Draft Law on the Bar

TABLE OF CONTENTS 

1. Introduction ................................................................................................. 1 
1.1 Background.............................................................................................. 1 
1.2 	Judicial Reforms and Access to Justice in Rwanda ....................................... 1
1.3 	The problem statement and key concerns by civil society organisations ......... 2 
2. International and National Provisions on Access to Justice and Legal Aid ............... 3 
2.1 	International Standards .......................................................................... 3 
2.2 	Constitutional Provisions ......................................................................... 5 
2.3 	National Provisions................................................................................. 5
2.4 	CountryProfile ...................................................................................... 6 
3. Critique of the Draft Law ................................................................................ 9 
4. QUALIFICATIONS, ENROLMENT AND RIGHT TO PRACTISE .................................. 9 
4.1 	Entry to the Profession ........................................................................... 9 
Current Practise............................................................................................ 9 
Draft Proposals ............................................................................................. 9 
Concerns regarding the current and proposed practice ..................................... 10 
Comparative Practise................................................................................... 10 
Recommendations....................................................................................... 11 
4.2 	Right to practise .................................................................................. 11 
Current provisions....................................................................................... 11 
Proposed Bill .............................................................................................. 11 
Concerns regarding the current and proposed bill ............................................ 12
Comparative Perspective.............................................................................. 13 
Recommendations....................................................................................... 14 
4.3 	Representation by parties other than lawyers........................................... 15 
Current Provisions....................................................................................... 15 
Proposed Bill .............................................................................................. 15 
Concerns ................................................................................................... 16 
Recommendations....................................................................................... 16 
Judicial Defenders ....................................................................................... 17 
Recommendations....................................................................................... 17 
5. CONFIDENTIALITY .......................................................................................18 
Recommendations....................................................................................... 18 
6. MANAGEMENT .............................................................................................18 
Recommendation ........................................................................................ 18
7. PROVISIONS RELATING TO LEGAL AID............................................................19 
7.1 	The Need for Legal Aid.......................................................................... 19 
Our role and comparative advantage as civil society......................................... 20 
Comparative Perspective.............................................................................. 21 
Recommendations....................................................................................... 22 
8. WAY FORWARD............................................................................................23 

Executive Summary

The Government of Rwanda has proposed amendments to Law No 3/97 of 19 March 1997  
governing the legal profession. The draft law intends to establish the Bar Association of   
Rwanda whose mandate will be to:       

Regulate entry to the Bar by determining qualifications and conditions for practise  
by advocates before the courts; 

Regulate professional and ethical conduct and establish disciplinary procedures for 
the practice of law in Rwanda;     

Collaborate with the Ministry of Justice in the management of a legal aid fund 
situated within the Bar Association; and 

Establish a legal aid office for the purpose of representing indigent persons, 
running legal aid clinics and sensitising the public on rights and liberties. 

This move by government to amend the law represents a positive and timely step in its  
continuing effort to ensure access to justice for all Rwandans through the various legal
and judicial reforms.     

Access to effective and timely justice for all is perhaps the most important pillar towards   
the process of consolidating the rule of law. It is essential not only in guaranteeing   
people’s fundamental rights but also as a poverty reducing measure.   The guarantee of 
universal access to justice is realised through the legal aid triangle of sensitisation, legal   
assistance (legal advise) and legal representation. The government of Rwanda recognises  
the importance of this access, particularly for the poor and vulnerable segments of the 
society and seeks to ensure it through explicit policy and strategy expressions and 
through the promulgation of appropriate law.    This is the context within which the efforts 
to establish the law on the bar must be viewed. 

Organised civil society, in its varied forms, is an important stakeholder in the process of 
broadening access to justice and consolidating the rule of law. A number of civil society   
organisations are involved in varied initiatives and activities in fulfilment of this important   
need. Through the provision of legal aid, mediation of legal representation and through 
technical, material and financial support, they are complementing the effort of 
government in this regard. 

Civil society sees a sound law on the bar as a key instrument in the process of delivering 
effective justice, in particular, broadening its remits to cater for the majority indigent  

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population and specific vulnerable groups. Such a law must of necessity be founded on 
international principles on legal representation and practise, and on carefully considered
domestic needs and realities. The Havana principles, on the role of lawyers, for example   
underscores the need to ensure access to lawyers by the population and obligates  
governments and professional associations to guarantee this access: 

Principle 1: All persons are entitled to call upon the assistance of a lawyer of their
choice to protect and establish their rights and to defend them in all stages of
criminal proceedings.

Principle 2: Governments shall ensure that efficient procedures and responsive 
mechanisms for effective and equal access to lawyers are provided for all persons
within their territory and subject to their jurisdiction, without distinction of any
kind..…   

Principle 10: Governments, professional associations of lawyers and educational
institutions shall ensure that there is no discrimination against a person with respect
to entry into or continued practice within the legal profession….

It is with these in mind that a group of civil society organizations working in the domain of       
justice and human rights have come together to review draft law on the bar and to bring 
their views and voice to bear on its content, including its proposed operational instruments 
and procedures.     

Based on considerable consultations over this draft law, which included study visits to  
Uganda, Tanzania, Kenya and South Africa to compare Rwanda’s propositions with the 
jurisdictions of these countries, civil society is persuaded that there is need for serious
dialogue over the draft law. The proposed draft law goes against regional and international
best practices. It reinforces, with very minor and largely unsatisfactory variations, the   
current law, which completely locks out some qualified lawyers from practise. The general   
thread running through it is the notion of a protectionist bar, not willing to allow the broad 
range of qualified lawyers to offer legal representation, especially where this would be   
more accessible and cost-effective. 

The specific concerns of civil society in respect of the draft law are enumerated as follows:     

1. The proposed amendments are not responsive to the magnitude of legal cases that  
require representation in Rwanda. 

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2. Whilst one of the motivating factors for amending the law is to increase 
professionalism, in-line with the recent judicial reforms, the draft law does not go 
far enough to provide a clear forward looking framework for the future 
management and development of the profession;    

3.  Limiting legal representation to the few private lawyers, with limited capacity and 
geographic reach, will jeopardise the national goal of broadening access to justice. 
The current perceived incompatibility between membership to the Bar and salaried 
employment (for example with a civil society organisation), is one way in which  
this limitation is being implemented.   

4. The provisions in the draft law are in conflict with other laws, for example, with the   
provisions set out in article 10 of the Criminal Procedure Code.  

5. Whilst the provision to institutionalise legal aid is positive, there has been 
insufficient analysis of how a legal aid fund can be effective and sustainable in
Rwanda. For example the proposed model fails to provide for independent 
management and supervision of the fund and does not look to regional best 
practise for models of efficient legal aid in developing countries. 

6. Rwanda’s admission to the East African Community is imminent, yet there is very   
little evidence of efforts to harmonise legal practise in Rwanda with the rest of the   
East African Community.     

Our critique and recommendations in respect of the above concerns are categorized as 
follows:   

Qualifications, enrolment and the right to practise

i.	Entry to the Profession 

ii. 	The right to practise 

iii. 	Representation by parties other than lawyers 

iv. 	Judicial Defenders 

Confidentiality

Management  

Legal Aid

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Qualification, enrolment and the right to practise

Entry into the profession: the conditions for entry into the profession are such that  
many highly qualified candidates are deterred from entering. The duration of internship, at 
2 years is too long, considering the new requirement for compulsory training at the new 
IPLD based in Nyanza. Further the draft law is unclear regarding the terms for the 
internship and lacks clear guidelines regarding admission of interns to the roll upon 
completion of the internship period.  

Recommendations: 

The introduction of specialised post-graduate training at the IPLD is a positive 
development. However the internship period should be reduced to reflect the 
practical training at the IPLD.     

Clear guidelines should be set out regarding the internship period and the 
benchmarks for full admittance to the Bar at the end of the said period.    

Structured internships should be developed and accompanied by a scholarship or 
salaried scheme. Given the assistance that an intern is able to provide to a 
qualified advocate, thus increasing his/her potential caseload, a salaried scheme  
for newly graduating students should not be excluded 

Civil Society organisations that provide legal aid, should also be eligible to provide 
the requisite internship if they have a senior lawyer amongst their staff.   

The right to practise: the current law regards salaried employment as incompatible with
membership of the Bar and thus the practise of law. The draft opens the possibility for 
certain salaried lawyers to be enrolled at the Bar. However the provisions create conflicts 
between the articles and are contrary to the notion of separation of powers. 

Recommendations:

Civil society organisations are in agreement that it is important to safeguard the 
professional standards of the legal profession. The recommendation is that once  
someone has fulfilled all the criteria for admission to the Bar and are admitted they 
should be able to chose which professional route to pursue: whether to work in  
private practise; or to work ‘in-house’ for an organisation, the government or a  
non-governmental organisation.    The Law should ensure that whichever route they   
chose they should be subject to the code of professional conduct and ethics of the 

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Bar Association. This is one way in which access to legal representation can be 
broadened, and at the same time professional standards are maintained.     

Article 24 should be strengthened and clarified to encompass all lawyers in salaried   
employment. These lawyers should be admitted to the Bar and be required to take 
out an annual practising certificate. Thus it should be clear that working for an NGO 
that offers legal representation is compatible with the practise of law.   

Admission to the roll of advocates should remain a matter for the profession to 
determine. There should be clear guidelines that include a common understanding   
of the right of all qualified lawyers to practise the law. An article similar to that of 
the Kenya and the Tanganyika Law Societies should be included in the Code of 
Conduct of the Rwandan Bar.

If Article 50 is retained then it should be reworded to the effect that any qualified
lawyer working for an NGO carrying out work that entails the requirement for legal
representation shall upon application for enrolment to the Bar be enrolled
accordingly.   Further that such NGOs and any body established by the Ministry of
Justice to offer legal aid services on its behalf shall have access to the legal aid
funds.

Whilst in the process of revising the Law on the Bar, the opportunity should be  
taken to ensure that the Rwandan law and practise is in harmony with that of the  
East African Community and the East African Law Society (EALS). EALS have   
already conducted an exploratory mission to Rwanda1 and discussions on cross- 
border practise amongst the 3 member countries are at an advanced stage.     

Representation by parties other than lawyers: the provisions in draft article 33 that   
enable a spouse, ascendant, descendant or tutor to represent an individual are contrary to   
the provisions of the Code of Criminal Procedure (article 185) which provides that minors   
must be represented. The provisions of article 10 of the Code of Criminal Procedure   
permitting legally recognised organisations fighting against violence against women to  
represent victims are in contradiction with the draft law. Further, the draft law leads to a   
situation where qualified lawyers working for civil society organisations are limited in their
potential for representation (article 50), while a parent, son or daughter, spouse or tutor   
with no legal training may provide representation.

1 EALS mission to Rwanda 1-7 July 2006

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Recommendations:

The Law on the Bar and the Code of Criminal Procedure should be harmonised to   
ensure that the same standards are set in both laws.

The standard set in the Code of Criminal Procedure, requiring representation for all 
minors, is the higher standard and is in line with international law for example the 
Convention on the Rights of the Child.2    However,   with   the   adoption   of    this   
standard, practical measures have to be put in place to ensure that it is realised. If   
minors spend long periods of time in prison waiting for a lawyer, or they are   
detained until they reach the age of majority, this amounts to a violation of their 
rights.     

The recommendations above, to include civil society lawyers in the draft article 24,  
will extend to lawyers working for organisations fighting against violence to enable   
them represent the victims as civil parties in a case. There should be clear 
provisions on who is able to file a case on behalf of a victim (who has ‘standing’ 
before the court) and who is entitled to file amicus curiae brief. These provisions   
should allow legally registered NGOs to file, for example, cases on behalf of a  
group of victims. 

Judicial Defenders: the transition provisions for the judicial defenders to qualify and 
become full members of the Bar are limiting and threaten not only to deny equal and fair  
opportunity, but also to exclude a significant number of these important and already  
experienced purveyors of justice in Rwanda 

Recommendation:   

The transition period should be extended to 5 years (considering the 1 year of   
language studies and 4 years of legal studies required to complete a law degree at   
the National University of Rwanda) to give those wishing to do so sufficient and 
reasonable time to acquire the requisite qualifications.  

During this period all judicial defenders, regardless of their educational status,  
should be eligible to continue practising and be registered at the Bar for the 
duration of the transition period, or until they fulfil the requirements for full  
membership of the Bar. This will ensure fair and equitable treatment and also 

2 Article 40 International Convention on the Rights of the Child requiring legal or other appropriate assistance 

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ensure that the number of individuals with experience in representation before the   
courts does not immediately fall following the adoption of the law.     

The transition provisions should ensure that ex-judicial defenders continue to work 
from their decentralised cabinets during the transition period.

Confidentiality

The articles (41 & 44) regarding confidentiality delimit the standards of confidentiality by   
requiring an advocate to divulge client information to the president of the bar, the 
president of the tribunal, or the disciplinary authorities of the bar.   

Recommendations:

The guidelines stipulating the conditions under which a lawyer can be forced to  
divulge privileged information are insufficient, especially as there are limited 
provisions for independence of the disciplinary committee of the Bar.    This should  
be revised and clarified.    

The articles regarding confidentiality should be reconsidered to ensure that one of   
the basic premises of the profession is not compromised.  

Management

Civil society is concerned that the draft law does not go far enough to provide a clear 
forward looking framework for the future management and development of the profession. 

Recommendation:

Consideration should also be given to the composition of the Bar’s management  
and disciplinary committee. Currently all the members are practising lawyers.   
Whilst recognising that the Rwandan Bar Association is relatively young, 
consideration should be given to employment of fulltime professional staff. In this
way greater independence will be guaranteed for disciplinary actions and the Bar 
will also be able to play a stronger role in assessing legal developments  

Legal Aid  

For the majority of Rwandans access to legal services and thus access to justice will  
remain elusive as long as the mechanisms for the provision of effective legal aid remain  
ineffective. While (under subsection 3 articles 60-63, current law; and section 4 articles  
47-49 of the proposed law) provides for a Legal Aid fund, the government has not made 
any allocations towards this fund. Experiences from a number of countries demonstrate 

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that the classical judicare system, where legal aid cases are referred to private lawyers is
neither cost effective nor efficient. Further, where the bar is charged with allocation and 
representation of cases as well as being the fund manager problems of effectiveness have 
arisen. Civil society organisations have proven themselves to be credible and efficient 
providers of legal aid, on account of their understanding of and closeness to indigent 
populations. They have also demonstrated superior expertise in research and advocacy 
related to legal aid, in representing the legal interests of the poor and marginalized, and in  
pursuing public interest cases. These comparative advantages and the experiences have   
been demonstrated in other countries in the region and as a result they are currently   
reviewing their policies and practises on legal aid with a view to giving civil society a more 
pronounced and formal role as a deliberate strategy to broaden access to justice, 
especially for poor people. 

Recommendations:

Further analysis is needed in order to identify the best model for legal aid delivery   
in Rwanda. In this regard civil society organisations together with other justice 
sector actors working as part of the Legal Aid Forum have proposed the elaboration 
of a Legal Aid Baseline Survey3. The aim will be to ‘document the nature and 
availability of legal aid services …with the aim of informing and guiding processes 
for improving legal service provision’. It is planned that the survey will be   
conducted between October and December 2006.

To utilise the experiences from other jurisdictions and create an independent body 
to manage legal aid funds; the body should be funded from government and given 
capacity to raise funds from other sources. 

Moving Forward      

This civil society position paper contains a detailed analysis and comparative perspective 
on the prerequisites for a wholesome bar law. We urge stakeholders to read it carefully 
and to consider the proposals it offers towards the provision of a broad-based framework 
for the delivery of legal aid for the indigent Rwandans. Towards this aim civil society calls
upon all justice sector stakeholders (including parliament) to engage in an open and 
honest debate and analysis of the draft law and to agree concrete steps towards the   
evolution of an appropriate framework for the provision of legal aid in Rwanda. 

3 A number of meetings have taken place to establish collaboration with the Ministry of Justice and the Rwandan
Bar for this Baseline Survey .    

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1.

1.1

Introduction

Background

Members of civil society organisations working in the field of justice and human rights see the
urgent need to petition the government and parliament with regard to the government’s 
proposal to amend law No. 3/1997 of 19 March 1997 creating the Rwandan Bar Association.     

Thepropsaloamendthislaw wasfirtbroughtforwardattheendof2003inlinewiththe
broaderjuicialreforms.Sinethnth processhasresutedindeepyopposin viewsand
theBillwassenttoaParlia mentaryCommissioninMarch2006.

With the start of a new Parliamentary session in October, it is important to consider a Bill that  
will assure the development of the profession and through the profession serve the population.
Most importantly it is necessary to ensure that the law does not create barriers to legal  
assistance, but rather ensures that equitable access to justice is broadened.         

This position paper builds on the advocacy previously carried out by civil society.4 We believe  
that over the last few months a number of learning experiences and exchanges have deepened   
our understanding of the implications of the law and of the comparative practise in other  
jurisdictions.5 

A Taskforce comprised of Ajprodho, Caurwa, Cestrar, Cladho, Haguruka and Human Rights  
First has worked together with a legal expert from Kenya to study the law and build a 
comparative analysis.   

1.2

Judicial Reforms and Access to Justice in Rwanda

Over the last 4 years various legal and judicial reforms have been carried out emphasizing on 
quality and expedient delivery of justice to Rwandans. Deliberate efforts have been made to  
broaden access to justice through the creation of the gacaca courts and the abunzi system of 
community based dispute resolution. However, the impact and objective of such reforms will
be minimal if they cannot translate into concrete gains for the citizenry.  

Vision 2020 commits the state to be respectful of democratic structures and processes, the
rule of law and the protection of human rights. 

The Ministry of Justice’s Justice Sector Strategy, states:    

4 Letter submitted by Haguruka and Avega in July 2005 and a paper submitted by Ajprodho, Haguruka, Cladho and Cestrar in  
November 2005    
5 The exposure visits to Kenya, Uganda and South Africa, the Legal Aid conference in Tanzania, the visit to Rwanda of the East 
African Law Society and the study that was commissioned on vulnerability. Participants included Rwandan and International
NGOs, the Rwandan Bar, The Corps of Judicial Defenders and the National University of Rwanda.    

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“The rights to legal representation and the right to equality before the law are rendered
meaningless unless the poor and indigent persons who cannot engage a lawyer are
afforded free legal services. Nor can justice be done without regard to economic status
without free legal aid for the poor.” 

As civil society we have embraced the principles of partnership with government in ensuring  
that we continue to consolidate and expand the democratic gains.    

Indeed we are persuaded that fair, efficient, transparent and accessible justice that is  
responsive to the most vulnerable is a	sine qua non for economic and social development.   
Studies have shown for example that communities’ experiences of poverty are often closely  
linked with fear of crime and lawlessness,6 and by contrast timely and just settlement of  
disputes contribute positively to promoting economic and social development.     

Civil society believes that based on our experience of working with rural and vulnerable  
populations and the comparative experience of other countries, we have a crucial role to play  
in legal service provision including representing vulnerable groups before the courts.  

We are therefore concerned that despite the positive recognition of the varied and key roles of  
different actors in the justice sector, the government has proposed a bill whose impact may be  
to eradicate or diminish the gains so far made. 

1.3

The problem statement and key concerns by civil society organisations

The   Government   of   Rwanda    has   proposed   amendments   to   Law   No   3/97   of   19   March   1997  
creating the Bar Association.    The draft law intends to establish the Bar Association of Rwanda
whose mandate will be to:     

•	Regulate entry to the Bar by determining qualifications and conditions for practise by  
advocates before the courts; 

•	Regulate professional and ethical conduct and establish disciplinary procedures;    

•	Collaborate with the Ministry of Justice in the management of a legal aid fund situated
within the Bar Association; and     

•	Establish a legal aid office for the purpose of representing indigent persons, running
legal aid clinics and sensitising the public on rights and liberties.     

Key concerns of civil society organisations are:

The proposed amendments are not responsive to the magnitude of legal cases that  
require representation in Rwanda. 

6 World Bank, Voices of the Poor, 2000 

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2.

2.1

Whilst one of the motivating factors for amending the law is to increase  
professionalism, in-line with the recent judicial reforms, the draft does not go far 
enough to provide a clear forward looking framework for the future management and 
development of the profession;     

Limiting legal representation to the few private lawyers, with limited capacity and 
geographic reach, will jeopardise the national goal of broadening access to justice. The 
current perceived incompatibility between membership of the Bar and salaried   
employment (for example with a civil society organisation), is one way in which this
limitation is being implemented.

The provisions in the draft law are in conflict with other laws, for example, with the 
provisions set out in article 10 and 185 of the Code of Criminal Procedure.

Whilst the provision to institutionalise legal aid is positive, there has been insufficient  
analysis of how a legal aid fund can be effective and sustainable in Rwanda. For
example the proposed model fails to provide for independent management and  
supervision of the fund and does not look to regional best practise for models of 
efficient legal aid in developing countries.  

Rwanda’s admission to the East African Community is imminent, yet there is very little 
evidence   of   efforts   to   harmonise    legal   practise   in    Rwanda   with   the   rest   of   the   East  
African Community.    

International and National Provisions on Access to Justice and Legal Aid

International Standards

As a self-governing democracy Rwanda is signatory to all key international and regional  
instruments particularly those relating to the protection and promotion of human rights.

Access to Justice is considered one of the fundamental rights elaborated in detail in the  
international human rights treaties. Article 10 of The Universal Declaration of Human Rights
states that ‘everyone is entitled in full equality to a fair and public hearing by an independent
and impartial tribunal…’    

Article 14 (3) of the International Covenant on Civil and Political Rights (ICCPR) is the 
backbone of constitutional and statutory provisions in relation to the right to legal
representation; it provides that: 

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In the determination of any criminal charge against him, everyone shall be entitled to 
the following minimum guarantees, in full equality:

(a) To be informed promptly and in detail in a language which he understands of the 
nature and cause of the charge against him;

(b) To have adequate time and facilities for the preparation of his defence and to 
communicate with counsel of his own choosing;

(c) To be tried without undue delay;

(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;

  Similar provisions can be found in the	African (Banjul) Charter on Human and Peoples’
Rights. Additional to the ICCPR; the 1990 United Nations (Havana) Principles on the Role of
Lawyers, clearly recognizes the critical role played by the legal profession and the obligation
on governments to ensure that the population has access to lawyers. They provide as follows: 

1. All persons are entitled to call upon the assistance of a lawyer of their choice to 
protect and establish their rights and to defend them in all stages of criminal
proceedings.  

2. Governments shall ensure that efficient procedures and responsive mechanisms for
effective and equal access to lawyers are provided for all persons within their
territory and subject to their jurisdiction, without distinction of any kind…

Article 10 of the Havana Principles guards against discrimination in relation to legal practise:     

10. Governments, professional associations of lawyers and educational institutions
shall ensure that there is no discrimination against a person with respect to entry
into or continued practice within the legal profession on the grounds of race, colour, 
sex, ethnic origin, religion, political or other opinion, national or social origin, 
property, birth, economic or other status…

Specific requirements for example, relating to minors can be found in the

International

Convention on the Rights of the Child

and provisions relating to civil cases in the

International Convention on Economic, Social and Cultural Rights. For example General   
Comment 28 on article 3, equality of rights between men and women, states that:    

States parties should provide information to enable the Committee to ascertain
whether access to justice … [is] enjoyed by women on equal terms with men. In
particular … whether measures are taken to ensure women equal access to legal aid,
in particular in family matters.

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Looking to other jurisdictions there is also jurisprudence, which holds that states may be 
compelled to provide free legal assistance in civil matters when such assistance proves  
indispensable for effective access to the courts, either because legal representation is  
mandatory under domestic law or because of the complexity of procedure or the case.7

Whilst Rwanda is a signatory to all the major human rights treaties practical measures need to
be put into place to ensure realisation.    

2.2

Constitutional Provisions

Preamble no 9 reaffirms commitment to adhere to all key international and regional human  
rights conventions. The constitution therefore recognizes the importance of legal 
representation in the legal process. 

2.3

National Provisions

Law No 13/2004 17/5/2004 relating to the Code of Criminal Procedure and amended by 
Law 20/06 of 22/04/06

Article 39	provides that any criminal defendant has a right to be informed of the charges  
levied against him and also creates a right to legal representation including seeking assistance  
from the Bar where he cannot afford counsel. 

Article 185 makes it mandatory for children to have legal counsel.

Article 10 provides that associations, which have been legally constituted to fight against  
violence, can exercise the right available to civil parties on behalf of the victim, claiming   
damages arising from the offence.   

Law No 18/2004 20/06/2004 relating to the Civil, Commercial, Labour and Administrative
Procedure (CCLA) amended by law 09/06 of   2/3/06

Article 13    requires   that   a   person   bringing   a   claim   in    court   must   have   written   legal   briefs  
quoting relevant provisions in support of his argument. In our opinion this provision requires  
litigants to be sufficiently knowledgeable in law to successfully litigate before the courts.   The  
reality in Rwanda is that 90% of the population does not know the law and even where they  
have some idea, they do not know where to seek redress.   

When read together these provisions of the Code of Criminal Procedure and the CCLA
only be construed as committing the state to provide free legal aid to a critical number of 

7 Airey v. Ireland   	6289/73 [1979] ECHR 3.

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litigants; in our estimation these mandatory requirements require a greater number of lawyers  
than are currently registered at the Bar. The statistics below illustrate our contention. 

2.4

Country Profile

Total Population 

Number of lawyers registered at the Rwandan Bar8

Fully admitted lawyers (including 15 government lawyers) 

Number of interns (including 2 government lawyers)

The ratio of lawyers to population (including interns)

Number of pending cases at the end of 20059 

Number of cases registered during the last 6 months of 2005 

Number of cases completed during 2005 

8,600,000  

94

103

1: 43,655 

47,278

15,412 

13,566

A calculation comparing the number of practising lawyers and the number of cases before the  
courts shows that the current registered lawyers are unable to provide even a minimum level  
of representation. 

Considering only the penal cases (excluding genocide cases) and minors cases the numbers for  
2005 are as follows:

Penal cases pending and completed: 12,124   + 3,881 = 16,005    

Minors cases pending and completed: 323 + 89 = 412

TOTAL= 16,417 

This number of cases would require every member of the Bar (including the interns but
excluding the Government lawyers) to take on 91 cases per year.

If on average a penal case takes 4 days (including going to the prison to meet the client) each   
lawyer would need to spend 364 days per year on these cases. As there are only 260 working 
days per year this is a physical impossibility.

8 Tableau de l’Ordre 5 August 2006
9 Statistics from the Supreme Court website September 2006 

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This calculation is only based on the penal and minors cases and excludes lawyers working on 
any civil cases, social, administrative or commercial cases and genocide cases.    

For genocide cases alone there are 997 pending genocide cases, an additional 50,000 category  
I cases are estimated following the information gathering phase of Gacaca10 and there is an  
expectation that ICTR cases will eventually be transferred to Rwanda. In addition many  
genocide cases are large class action cases involving up to 40 accused in one case. This means  
that several lawyers are required for each case.    

The explanatory note of the draft law, states that:  

‘…the number of lawyers has meanwhile been tremendously increased, thanks to law
faculties which have been established in the country since 1997, and the law Society is
now well equipped in all respects to organise and ensure effective defence for all.’    

Whilst it is true that the numbers have increased hugely from the handful of lawyers that were  
present in Rwanda after the genocide, the reality shows that there are still insufficient lawyers
registered at the Bar to ‘ensure effective defence for all’.    

Civil society organisations working in the field of justice and human rights receive many  
clients who require information, advice and representation on legal issues.    

Organisation

Ajprodho 
Caurwa
Human Rights First Rwanda
Haguruka 7,039 
Ibuka
The Legal Clinic (NUR)

Number of cases (2005) 

142
70
84

2165 
591

Notes  

The Legal Clinic (ULK Gisenyi)      48

During the first 3 
months of the clinic 
in 2006 

Haguruka for example received 7,039 clients during 2005 largely with problems related to  
sexual and domestic violence, succession issues and family issues. Some of these cases can be  
dealt with by providing information and advice on the law. However a significant number of  
cases require the matter to be referred to a tribunal and at this stage the civil society  
organisations are able to provide very limited assistance to their clients. Haguruka for example 

10 Joint Government of Rwanda /EU Report 2005  

CIVIL SOCIETY POSITION PAPER    

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estimates that over 70% of their cases require legal assistance but, on the basis of hiring a
lawyer on a case-by-case basis, they are only able to provide representation for around 69 
cases per year11. Thus the majority of clients are forced to pursue their cases without legal
representation.    

Haguruka’s capacity to assist its beneficiaries would increase greatly if they were able to hire
as full time staff one or more lawyers to represent such persons before the courts.    

Currently ten of the legal / human rights organisations have on their staff a total of 29 jurists  
(individuals with a law degree).12 These individuals have experience receiving cases, giving  
legal advice and drafting conclusions for their clients. They are however barred from going to 
court. If the law were changed there would also be a motivation to allocate staff particularly for 
representational work and to fundraise for these positions. Given the experience in other
countries that this is a more cost efficient method of providing assistance, some donors have 
already expressed interest in funding such positions.

11 Figure from 2005  
12 These organisations are Ajprodho, Ardho, AVP.Caurwa, Cestrar, Cladho, Liprodho, Ibuka, Haguruka, Human Rights First.    
These are just some organisations. It was not possible at the time to gather full statistics. – The Legal Aid Baseline Survey will 
hope to do this.    

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3.

Critique of the Draft Law

Based on considerable consultations over this draft law and comparative analysis with 
other jurisdictions, we have classified our comments as follows: 

Qualifications, enrolment and the right to practice 

-
-
-
-

Entry to the Profession 
The right to practise
Representation by parties other than lawyers 
Judicial Defenders 

4.

4.1

Confidentiality
Management
Legal Aid    
Way forward    

QUALIFICATIONS, ENROLMENT AND RIGHT TO PRACTISE

Entry to the Profession

Current Practise  

Articles 5 - 11 make provisions for conditions of admission to the Bar 

In summary those wishing to be registered on the roll of advocates must complete the 
following steps: 

-

-

-

Have a   degree in law from a recognised University

Apply for admission to the roll of advocates 

Successful completion of a 2-year ‘internship/articling’ period, supervised by  
a practising advocate with 5 years experience, and followed by a pass mark in  
the Bar Examination.    

Thereafter the person is entitled to practise and open an office so long as they are not 
barred by any incompatibilities such as salaried employment.    

Draft Proposals

The draft proposal is largely similar, except that an additional training period at the new  
‘Institute of Legal Practice and Development (IPLD)’ based in Nyanza will be required.
The internship period is referred to in Article 11 but there is no article clearly setting out   
the terms and conditions of the internship.    

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9

Concerns regarding the current and proposed practice   

The draft law is unclear regarding the terms and conditions of the internship period. In  
addition there are no clear guidelines regarding circumstances under which the  
supervising advocate may refuse to issue a certificate/letter to the intern upon   
completion of the 2-year internship.    

In reality there are very few applicants to the Bar compared with the number of  
graduating law students. Currently the Bar has 50 candidates seeking admissions to the
roll.13 This number is low compared with over 450 law students who graduated from the  
law faculties in Rwanda in 2005.14 

Based on informal discussions with law students many indicated the following barriers
to their entry into the legal profession as advocates: the precarious nature of admission
to the Bar; the fact that there are no law firms where they can receive a broad training;   
and the need to attract their own caseload for financial sustenance even during the 
internship period.     

Given the calculation that the current 197 enrolled lawyers are unable to handle the
enormous caseload in Rwanda, ways should be sought to ensure that the profession is 
not losing highly qualified competent candidates. In addition it is important to ensure
that entry to the profession is not only accessible to those with the financial means to
sustain themselves during a 2 year period – thus losing highly competent candidates who  
come from low income households.

Limiting access to the Bar in this way results in a barrier to representation for indigent  
people.     

Comparative Practise

Most countries have similar conditions for entry to the Bar: a degree in law, post-
graduate training and an internship period.     

Some differences, however, enable more equitable entry to the profession.    In many 
countries the internship is for a shorter period (1 year in Kenya and Uganda, 1 year  
pupilage in the UK) and it is either paid through a basic salary or through a scholarship 

13 Meeting with the Bâtonnier September 7 2006  
14 Figures compiled from 2005: the National University of Rwanda (99), ULK    ( approx 291 ) , UNILAK (50) and a number 
from   INES Ruhengeri     

CIVIL SOCIETY POSITION PAPER  

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scheme. In South Africa fourth year law students take an intensive clinical programme,   
which includes court attendance, and then sit their final Bar exams.  

Recommendations

The introduction of specialised post-graduate training at the IPLD is a  
positive development. However the internship period should be reduced to 
reflect the practical training at the IPLD.     

Clear guidelines should be set out regarding the internship period and the 
benchmarks for full admittance to the Bar at the end of the said period.     

Structured internships should be developed and accompanied by a 
scholarship or salaried scheme. Given the assistance that an intern is able to  
provide to a qualified advocate, thus increasing his/her potential caseload, a
salaried scheme for newly graduating students should not be excluded.

Civil Society organizations that provide legal aid, should also be eligible to 
provide the requisite internship    if   they    have   a   senior   lawyer   amongst   their  
staff.

4.2

Right to practise

Current provisions  

Once registered, a lawyer is able to represent clients before the courts so long as he/she 
is not engaged in activities that are incompatible with being a practising lawyer.    

Based on the premise of independence and the liberal nature of the Bar, incompatible  
activities include:    

‘Any paid employment or activity, either public or private that could
compromise the independence of the lawyer or dignity of the Bar.’15

Proposed Bill

Article 32 stipulates the basic requirement for practising as an advocate: 

‘Advocates on the roll of the list of interns may represent or assist litigants and
appear before all the Rwandese jurisdictions’

15 Article 42   of Law 3/97 of 19 March 1997   The   Law creating the Bar Association    

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11

The new provisions maintain the notion of compatibilities and incompatibilities, namely
that practising, as a lawyer is incompatible with being a judge, a court clerk, a court
bailiff or a public prosecutor.

A new Article 24 has been introduced. It provides that the profession of advocate shall be 
compatible with:    

-	Teaching in a university or a school of higher learning;

-	Being a public notary or an arbitrator; or 

-	Serving as a civil servant or working in a private institution.

These provisions are on:   

‘condition that the advocate is convinced that he/she will perform no duty other
than those related to representing his or her institution in justice.   Otherwise he
or she cannot exercise any job related to the profession of advocate before he
resigns from his/her former duties.’

A new article 50 has also been introduced enabling lawyers working for selected human 
rights organisations to represent their clients: 

‘Notwithstanding the provisions of Article 32 of this law, the Minister
responsible for Justice may in public interest and for a specified period of time
authorize the enrolment into the Bar, staff of Non Governmental Organization
engaged in Human Rights that fulfil all the requirements of an advocate.

The Minister for Justice may also designate state attorneys who fulfil all the
requirements of advocates to enrol in the Bar for purposes of providing Legal 
Aid on behalf of the government.’

Concerns regarding the current and proposed bill

The current provisions discriminate against qualified lawyers in salaried employment  
and are thus contrary to international standards particularly the United Nations Basic
Principles on the Role of Lawyers (Havana 1990).    

Principle no 10 requires that governments, professional associations of lawyers and   
educational institutions ensure that there is no discrimination against a person with
respect to entry into or continued practise within the legal profession.    

The Rwandan Bar argues that the current prohibition on salaried lawyers is based on the
civil law tradition espoused by the principle of independence and the liberal nature of the
legal profession. The principle is not however applied to lawyers employed by the 
government.     

CIVIL SOCIETY POSITION PAPER  

12

Regardless of the nature of his or her employment a lawyer is expected to give  
independent legal advice, based on professional skills and appreciation of the law. Both  
lawyers working in private practise and those employed by organisations are expected to  
work according to the professional code of conduct and ethics of the Bar association. 

Jurists currently working for civil society organisations in Rwanda have strong links to  
the rural population and a high degree of specialisation in legal issues that affect the
indigent population. Therefore, especially given the limited number of lawyers in 
Rwanda, prohibitions should not be put in place to prevent them from practising.    

Article 50 opens the door to civil society lawyers, but does so in a manner, which is likely  
to cause confusion, is open to arbitrary decisions and does not provide a long-term
solution. In addition the authorisation by the Minister of Justice is contrary to the notion  
of separation of powers between the executive and the judiciary.

It is not clear why the drafters considered it necessary to separate the provisions for civil
society lawyers, as set out in article 50, from the provisions for lawyers working for 
institutions, as set out in article 24. This separation is likely to cause confusion.      

Comparative Perspective

The   common    practise    in   most    jurisdictions   is   that    once   an   advocate   is   admitted   to   the  
Bar   they    have   a   right   to   appear   before   the   courts   on   behalf   of   their   clients.        Any  
limitations to this right are then dealt with by codes governing professional ethics and 
conduct.

In Kenya, Uganda and Tanzania concerns that the legal professional had regarding  
salaried lawyers were addressed in the codes of conduct of the respective law societies. 
For example a lawyer employed by an organisation requires his/her employer’s  
permission   to   also   take   private   clients.    In    reality   no   employer   is   going   to   give   this  
permission thereby ensuring that salaried lawyers are not also competing in the private  
market. Both The Law Society of Kenya and the Tanganyika Law Society have made  
provisions in their rules of conduct to this effect.16 

Advocates Employed by Non-Legal Employers

(a)

Subject to what follows, there is no objection to an Advocate agreeing to
do legal work for an employer in consideration of a fixed annual salary

16 Rule 6 Rules of Professional Conduct and Etiquette of the Tanganyika Law Society – similar provisions are found in  
Rule 4 of The Law Society of Kenya Digest of Professional Conduct and Etiquette (2000)

CIVIL SOCIETY POSITION PAPER

13

(b)

(c)

(d)

Provided his employer allows it, he may also accept instructions from 
other clients 

Such Advocate must comply with the Advocates (Accounts) Regulations

Such   Advocate    must    ensure   that    his   employer   neither   directly   nor
indirectly advertises his services, in particular does not recommend him
to his fellow-employees

In Canada the term lawyer, ‘extends not only to those engaged in private practice but 
also to those who are employed by governments, agencies, corporations and other
organizations’. These employed lawyers are governed by the code of Conduct. In case of  
conflict the code clearly states that ‘if the requirements or demands of the employer
conflict with the standards declared by the Code, the latter must govern’.17

Due to these provisions lawyers in salaried employment such as those employed by 
NGOs are entitled to represent the beneficiaries of their programmes where need arises.     

Recommendations

Civil society organisations are in agreement that it is important to safeguard the
professional standards of the legal profession. They therefore recommend that once  
someone has fulfilled all the criteria for admission to the Bar and are admitted they  
should be able to chose the professional route to pursue: whether to work in private
practise; or to work ‘in-house’ for an organisation, the government or a non- 
governmental organisation.    Whichever route they choose they would be subject to the 
code of conduct and ethics of the Bar Association. This is one way in which access to legal
representation can be broadened, and at the same time professional standards are
maintained.      

Article 24 should be strengthened and clarified to encompass all lawyers in  
salaried employment. These lawyers should be admitted to the Bar and required  
to take out an annual practising certificate. Thus it should be clear that working   
for an NGO that offers legal representation is compatible with the practise of law. 

Admission to the roll of advocates should remain a matter for the profession to 
determine. There should be clear guidelines that include a common 
understanding of the right of all qualified lawyers to practise the law. An article

17 The Canadian Bar Association - Code of Professional Conduct  

CIVIL SOCIETY POSITION PAPER

14

4.3

similar to that of the Kenya and the Tanganyika Law Societies should be included  
in the Code of Conduct of the Rwandan Bar.

We propose that if Article 50 is retained then it should be reworded to the effect  
that any qualified lawyer working for an NGO carrying out work that entails the  
requirement for legal representation shall upon application for enrolment to the
Bar be enrolled accordingly.   Further that such NGOs and any body established  
by the Ministry of Justice to offer legal aid services on its behalf shall have access  
to the legal aid funds.   

Whilst in the process of revising the Law on the Bar, the opportunity should be 
taken to ensure that the Rwandan law and practise is in harmony with that of the 
East African Community and the East African Law Society (EALS). EALS have 
already conducted an exploratory mission to Rwanda18 and discussions on cross- 
border practise by the other 3 members are at an advanced stage.    

Representation by parties other than lawyers

Current Provisions

The general requirement as stated in article 50 of the current law is that one must be a  
lawyer in order to plead cases before the courts of law with the following exception:

“A party may represent himself in a court, prepare pleadings and plead his 
own case or have his pleadings prepared and case pleaded by his spouse,
parent, or with the written authorization of the judge, his guardian or other
legal representative”.

Proposed Bill

Article 33 provides that only advocates are entitled to appear before the courts, unless  
there are exceptions provided by the law. By derogation of the provisions of article 33: 

  ‘a party may represent and personally appear, represent his/her spouse, his
ascendant, his descendant or his tutor providing mandate certified by the
judge’.

Article 10 of the 	Code of Criminal Procedure permits legally recognised organisations 
fighting against violence, to exercise rights available, on behalf of victims claiming  
damages.       

18 EALS mission to Rwanda 1-7 July 2006 

CIVIL SOCIETY POSITION PAPER  

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Concerns

The provisions under article 33, especially with respect to representation by parents, are  
in conflict with Article 185 of the Code of Criminal Procedure, which makes it mandatory
for minors to be represented by a lawyer.   Where the minor or his/her parents are unable 
to chose or find a lawyer then the prosecution are obligated to ask the President of the 
Bar Association to appoint one. It is not clear which law takes precedence; the Code of  
Criminal Procedure or the Law on the Bar.   

The provisions of article 10 of the Code of Criminal Procedure are also not clear. If an
organisation fighting against violence is able to represent the civil parties in a case then  
this is also in contradiction with the draft law.     

The draft law leads to a situation where lawyers working for civil society organisations 
are limited in their potential for representation (article 50) but a parent, son or daughter,  
spouse or tutor with no legal training can provide representation.    

Recommendations

The Law on the Bar and the Code of Criminal Procedure should be harmonised 
to ensure that the same standards are set in both laws.  

The standard set in the Code of Criminal Procedure, requiring representation for 
all minors, is the higher standard and is in line with the International Convention  
on the Rights of the Child.19 However, with the adoption of this standard, 
practical measures have to be put in place to ensure that it is realised. If minors
spend long periods of time in prison waiting for a lawyer, or they are detained   
until they reach the age of majority, this amounts to a violation of their rights.    

The recommendations above, to include civil society lawyers in the draft article 
24, will extend to lawyers working for organisations fighting against violence to  
enable them represent the victims as civil parties in a case. There should be clear  
provisions on who is able to file a case on behalf of a victim (who has ‘standing’   
before the court) and who is entitled to file amicus curiae brief. These provisions
should allow legally registered NGOs to file, for example, cases on behalf of a 
group of victims.    

19 Article 40 International Convention on the Rights of the Child requiring legal or other appropriate assistance

CIVIL SOCIETY POSITION PAPER  

16

Judicial Defenders

The draft law proposes the dissolution of the Corps of Judicial Defenders. Whilst
supporting the requirement that those wishing to practise law must have a law degree;  
we are concerned that the transition provision with regards to judicial defenders is very  
limited.

Since they began practising at the end of 1999 judicial defenders have provided
representation in over 350 completed genocide cases, representing over 5,000 accused  
and 15,000 civil parties. This represents by far the largest number of cases where  
representation has been provided to accused persons and civil parties in genocide trials.  
Thus the judicial defenders have gained a considerable level of experience in criminal  
trials.    

Concerns  

With the already identified shortage of lawyers, if a significant proportion of judicial 
defenders are unable to continue practising the impact will be felt by the indigent  
population especially as they have 10 decentralised cabinets outside of Kigali.     

Recommendations

The transition period should be extended to 5 years (considering the 1 year of  
language studies and 4 years of legal studies required to complete a law degree at  
the National University of Rwanda) to give those wishing to do so sufficient and  
reasonable time to acquire the requisite qualifications.

During this period all judicial defenders, regardless of their educational status, 
should be eligible to continue practising and be registered at the Bar for the 
duration of the transition period, or until they fulfil the requirements for full 
membership of the Bar. This will ensure fair and equitable treatment and also
ensure that the number of individuals with experience in representation before  
the courts is not abruptly decreased following the adoption of the law.    

The transition provisions should ensure that the decentralised cabinets continue 
functioning under ex-judicial defenders, during the transition period.  

CIVIL SOCIETY POSITION PAPER

17

5.

CONFIDENTIALITY

Concerns  

A fundamental principle of the legal profession is the requirement to ensure   
confidentiality of client information. Deviation from this requirement can only be  
allowed under very strict circumstances. 

Article 42 and 44 of the proposed law delimits the standards of confidentiality by  
providing that an advocate may be required to divulge client information to the 
President of the Bar, the President of the Tribunal or the disciplinary authorities of the  
Bar.     

Recommendations

The guidelines stipulating the conditions under which a lawyer can be forced to  
divulge privileged information are insufficient, especially as there are limited  
provisions for independence of the disciplinary committee of the Bar.    This  
should be revised and clarified.    

The articles regarding confidentiality should be reconsidered to ensure that one  
of the basic premises of the profession is not compromised.   

6.

MANAGEMENT

Concerns and comparative practise

Civil society is concerned that the draft law does not go far enough to provide a clear  
forward looking framework for the future management and development of the 
profession. For example, the management and disciplinary committees of the Bar lack  
independence and because there are no non-practising employees there is little time or   
expertise that can be devoted towards legal developments and continuing education.     

The Law Society of Kenya for example has full-time employed staff, who analyse draft   
laws, manage continuing legal education and initiate public interest litigation. There is  
also an independent disciplinary committee. In Uganda there is a Bar Council partially 
comprising retired professionals who oversee disciplinary issues.

Recommendation

Consideration should also be given to the composition of the Bar’s management and 
disciplinary committee. Currently all the members are practising lawyers. Whilst

CIVIL SOCIETY POSITION PAPER    

18

recognising that the Rwandan Bar Association is relatively young there is need to  
seriously consider employment of full time professional staff. In this way greater  
independence will be guaranteed for disciplinary actions and the Bar will also be able to  
play a stronger role in assessing legal developments in the country.  

7.

7.1

PROVISIONS RELATING TO LEGAL AID  

The Need for Legal Aid

For the majority of the Rwandan population access to legal services and thus access to 
justice, will remain elusive if there is no mechanism for the provision of legal aid. In
order to ensure that access is not only the prerogative of those who can afford, a system  
needs to be set up that will reach the majority population. This needs to take into  
consideration a number of factors such as: 

The distance that many people live from urban centres;

The large percentage of the population that are illiterate and not fully informed 
of their rights; and 

The different vulnerable groups that live in Rwanda including but not limited to  
orphans, child headed-households, survivors of the 1994 genocide, indigent 
women people infected and affected by HIV/Aids.    

The United Nations (Havana) Principles on the role of lawyers require that:    

Governments shall ensure the provision of sufficient funding and other
resources for legal services to the poor and, as necessary, to other
disadvantaged persons. Professional associations of lawyers shall cooperate in
the organization and provision of services, facilities and other resources.

Current Position and Practise

Subsection 3 of the current law (Articles 60 – 63) and Section 4 (Articles 47 –49) of the 
proposed law provides for a legal aid fund.

In practise, however, the government has not made any budgetary allocation towards  
this legal aid fund, and therefore members of the Bar are offering limited legal aid on a
pro bono basis or with the support of donors and international organisations20. 

During 2006 Belgian Technical Cooperation, in collaboration with the Ministry of
Justice and the Rwandan Bar, implemented a project to fund 24 lawyers to provide

20 the Bar was supported by Avocats sans Frontiéres specifically for representation in genocide cases – similarly the
Danish Institute for Human Rights supported the Corps of Judicial Defenders in relation to genocide cases.     

CIVIL SOCIETY POSITION PAPER    

19

representation in all minors cases before the tribunals. In August 2006 this project was
suspended for evaluation.    

Concerns

Budgetary allocation has not been committed to the Bar for the past or proposed legal  
aid fund. There has not been sufficient research into the needs of the population, or into
a model of legal service provision that will be effective for a country like Rwanda, where
there is a high caseload, and limited human and financial resources.   

The system being proposed is a classic judicare system where legal aid cases are referred   
to private lawyers. Such a system is simple to establish but experience in a number of 
countries has shown that pure judicare systems are difficult to control and monitor, and 
that as the caseload increases they tend to break down. The South African experience,
like that in other countries, is that the judicare model is also considerably more 
expensive than a salaried lawyer scheme.21 

Conflicts are likely to arise when the Bar is in charge of both allocation of cases to its  
members as well as the management of funds and payment of members. The proposed   
provisions are also contrary to the practise in many countries where legal aid services are 
funded via an independent board.22 

Experience highlighted by David McQuoid-Mason23 in his study, ‘The Legal Aid Board 
and the Delivery of Legal Services in South Africa’ shows that developing countries need   
to look to mixed models combining the cost efficiency of salaried public defender
schemes, with judicare referrals and creative use of organisations such as non-
governmental legal resource centres and university law clinics.    

Our role and comparative advantage as civil society in the provision of
legal services to the most vulnerable

Civil society organisations working in the field of legal aid have developed considerable
expertise in areas of the law that effect the majority indigent population. Working from 
varied perspectives - individual cases, research and advocacy - enables lawyers working 
for civil society to draw on these different elements of their organisations’ work.   For 
example when trends are identified amongst caseloads, NGOs are in a strong position to 
bring a test case, that if successful, can bring positive change for a whole group of people. 

21 McQuoid-Mason David, The Legal Aid Board and the Delivery of Legal Aid Services in South Africa  
22 For example in Canada, the UK and South Africa.    
23 David McQuoid Mason is James Scott Wylie Professor of Law at the University of Kwa-Zulu Natal, South Africa  

CIVIL SOCIETY POSITION PAPER    

20

In specific circumstances this is more efficient and results oriented than individual case-
by-case litigation.     

Advocacy

The backbone of our work relies on advocacy, which includes creating awareness,   
documentation of violations and mobilisation of communities for holistic solutions. The
advocacy and civic education carried out by NGOs usually results in more citizens  
seeking legal redress. Therefore those that can afford seek services from private  
practitioners, and those that cannot look to the same NGOs to litigate on their behalf.  

Legal representation

Our experience, shared with human rights practitioners in other jurisdictions, is that the
need for legal representation is a natural progression from advocacy activities and that as  
a final resort; enforcement through the legal systems remains the single most effective 
mechanism for victims of violations.

Bringing a public interest case develops litigation from an individual case-by-case level 
to litigation that challenges a provision or an action that impacts on a whole community. 
Results can be achieved by combining the research and representational skills housed   
within NGOs.24 

Research and Policy intervention

Civil society organisations are able to use the broad-base of information/trends gained
during client work to identify key research issues and conduct detailed investigation and   
analysis.   Based on which they can seek legal, legislative or administrative policy, thus  
bringing final and more comprehensive solutions.  

Comparative Perspective

Currently in both Kenya and Uganda the practise has been for the government to provide
limited legal aid services through the judiciary: in Uganda for persons charged with
capital offences; and in Kenya for those charged with treason and murder.   In both   
countries the system has tended to attract mostly inexperienced young lawyers largely  
using pro bono cases as a learning ground.   This means that such cases that may have

24 Positive results have for example been achieved for communities in Kenya and in South Africa.    

CIVIL SOCIETY POSITION PAPER

21

serious legal and even constitutional implications do not benefit from the requisite
expertise of senior counsel and thereby compromising the quality of justice.

Resulting from these shortcomings the governments of all countries in the region, Kenya, 
Uganda and Tanzania are currently in the process of working with civil society and   
justice sector stakeholders to adopt legal aid policies that are more responsive to the 
most vulnerable citizens. 

South Africa has over the last ten years re-organised its legal aid system towards a 
system managed by the Legal Aid Board an autonomous body created by the Legal Aid  
Act No 22 of 1969 and funded from the national budget.25    Currently the Board manages 
57 Justice Centres around the country dealing with 84% of all new matters. Only 13% of 
cases are dealt with using the previous judicare model.       

Legal Aid is a challenge in all countries and many different experiments have been tried 
in Africa, Eastern Europe, and Asia etc. As described above the South African experience   
highlights the need to develop mixed systems and forge complimentary working 
relationships between stakeholders.     

Recommendations  

Further analysis is needed in order to identify the best model for legal aid in Rwanda. To 
this aim civil society organisations working as part of the Legal Aid Forum together with  
other justice sector actors have proposed to carry out a Legal Aid Baseline Survey26. The 
aim will be to ‘document the nature and availability of legal aid services …with the aim
of informing and guiding processes for improving legal service provision’. It is planned   
that the survey will be carried out between October and December 2006.

A number of specific recommendations are proposed:    

To utilise the experiences from other jurisdictions and create an independent
body to manage legal aid funds; which body should be funded from government  
and given capacity to raise funds from other sources.   

To identify the best mechanism for putting in place a public defender scheme.     

25 Legal Aid Board – Annual Report 2005  
26 A number of meetings have taken place to establish collaboration with the Ministry of Justice and the Rwandan Bar for
this Baseline Survey – inline with the idea of creating ‘Access to Justice Houses’ .    

CIVIL SOCIETY POSITION PAPER  

22

8.

To work on a law governing Legal Aid that is independent from the Law on the 
Bar. In this way the law on the Bar will be specialised towards the management of  
the profession and a separate law will govern all matters pertaining to legal aid.  

Recognising the cost implications of funding legal aid to look for creative   
solutions, including:    

- Linking legal service provision and representation before the courts with 
the work of civil society organisations – enabling them to represent their  
clients and facilitating the framework within which public interest litigation  
cases can be brought; 

- Recognising the value of University based legal aid clinics – which enables a 
two pronged benefit; legal advice to the indigent population and experience 
for student lawyers; 

- The need for Bar Association to specify that as a precondition for yearly  
practising certificates, members must provide a specified number of pro 
bono cases per year.    

WAY FORWARD

The above paper contains a detailed analysis and comparative perspective and we urge  
stakeholders to consider the document from the perspective of providing a professional 
service to indigent Rwandans. To this aim we would call for a number of actions:     

For all justice sector stakeholders to engage in an open and honest debate and
analysis of the draft law  

For round-table meetings to be organised between stakeholders 

For the parliamentary commission on the draft law to engage with civil society to
gain an increased understanding of their position

For the Legal Aid Baseline Survey and the consequent recommendations, to  
inform the statutory provisions on legal aid

For parties to work together to ensure that mechanisms are put in place to ensure   
the practical application of both international and national laws    

CIVIL SOCIETY POSITION PAPER    

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