Legal Aid and Human Rights Group: Session 4 Paper Presented by Mr David Coltart, Legal Resources Foundation, Zimbabwe
Empowering People, Civil Associations and Democratic Development in Sub-Saharan Africa
12 – 16 August 1991, International Conference Centre, Arusha, Tanzania
INTRODUCTION: Brief History of Legal Aid and Human Rights Groups in Zimbabwe
Zimbabwe was colonised 100 years ago and for the bulk of this time has had no legal aid or human rights groups to speak of. Indeed the only credible human rights group prior to Independence in l980 was the Catholic Commission for Justice and Peace which was set up in l972. It however was (and still is) primarily human rights group and until the establishment of the Legal Resources Foundation (LRF) in l984 there was not a single legal aid NGO in the country. Whilst Zimbabwe boasts a well-organised private legal profession and an outstanding judiciary only a minute privileged group of Zimbabwe’s population can afford to engage lawyers of their choice. The rest of the population have either to go without legal assistance or have had to rely on extremely limited State legal aid. It is not the purpose of this paper to study what legal aid is provided in Zimbabwe outside of NGO’s. Suffice it to say that this type of legal aid is, in practice, limited to people facing capital charges and to certain civil cases such as divorce actions. The vast majority of people would go unrepresented were it not for the work of NGO’s such as the LRF.
LEGAL RESOURCES FOUNDATION
The fundamental purpose of this conference is to encourage the formation of non-Governmental voluntary organisations capable of assuming responsibility for economic and social advances which NGO’s in turn become important pillars of the democratic system. The purpose of this session is to focus on specific obstacles faced by organisations and how these obstacles have been or should be overcome. I would like to concentrate on the organisation I represent, the Legal Resources Foundation of Zimbabwe, which was set up in l984 in an attempt to improve the accessibility of legal remedies to poor and otherwise disadvantaged people in Zimbabwe.
The LRF is a non-profit welfare organisation which is run by a board of trustees, including the former Chief Justice of Zimbabwe, a Supreme Court Judge and several leading lawyers, academics and sociologists. The LRF has adopted a multi-pronged approach which seeks simultaneously to make the maximum possible use of those legal resources which are available in Zimbabwe, to improve the quality and the reach of the available legal services, and to improve public awareness and rights to which individuals are entitled and the means to obtain those rights. It has three main programmes:
l. the paralegal programme;
2. the education programme;
3. the publications programme.
l. The paralegal Programme
Prior to the establishment of the paralegal programme nearly all legal services available in Zimbabwe were confined to urban areas and, as indicated above, even those were restricted to people who could afford the services of private lawyers. The paralegal programme seeks to redress this problem through a four-tiered approach:
(a) Advice Volunteers
The LRF trains Advice Volunteers who live in poor and/or rural communities. Their job is to educate people regarding their rights using pamphlets produced by the LRF and to refer people with legal problems (with legal remedies available) to the second tier of the programme, the local advice centre.
(b) Advice Centres
The Foundation is in the process of setting up a network of advice centres in poor and/or rural areas of Zimbabwe. Advice Centres are manned by fulltime employees of the LRF known as paralegals, each of whom on commencement of employment undergoes an intensive four-week training course and is supplied with a paralegal manual, which simplifies the entire body of Zimbabwean law. The paralegal’s job is to liaise with advice volunteers in his or her district, to give advice, to consult, to refer consultants to local agencies which can assist and, where local agencies cannot assist, to refer prospective litigants to the third tier of the programme, namely the nearest Legal Projects Centre. As at the end of July l99l the LRF has set up four advice centres in remote rural areas and seven advice centres in urban areas.
(c) The Legal Projects Centres
The main operational arms of the LRF are the legal projects centres. As at the end of July l99l the LRF has set up four projects centres in Harare, Bulawayo, Masvingo and Gweru. The Bulawayo and Harare Projects Centres are the two main centres and the others are simply satellite project centres. The main project centres have full time lawyers, administrative personnel and full time sociologists. They also have extensive law libraries. The satellite project centres have full time administrators and part time back-up of a board comprising lawyers in private practice. The projects centres’ main functions are to provide back-up to the other three tiers of the programme including training and monitoring of advice volunteers and paralegals and research and litigation of public interest and test cases.
(d) Public Interest/Test Cases
The fourth tier of the programme is the public interest/test case programme which I should stress is very much in its infancy in Zimbabwe. The LRF has done a limited amount of public interest case litigation thus far using lawyers employed in the project centres. Because of human and financial constraints it is impossible for the LRF to implement a legal aid programme nationwide and for every indigent person. Accordingly only those cases which are perceived to be of widespread benefit to many people are taken on by the Foundation. In other words only cases which set a new precedent expanding or promoting human rights observance in Zimbabwe or cases, which, for example, establish liability against a Defendant on behalf of a great number of litigants, are taken on. We recognise that the programme is but a drop in the ocean and our intention is that each drop should cause a tidal wave!
To give you some idea of the number and type of cases we handle I will refer you to the attached statistics from the region where I come from, namely Matabeleland North:
2. Education Programme
The education programme is conducted by our full time lawyers located at the Bulawayo and Harare Legal Projects Centres. From a human rights perspective the most interesting programme is our law enforcement agency programme. We conduct week-long seminar programmes for police officers and intelligence officers on the law relating to bail, search and seizure, confessions, detention and arrest from a human rights perspective. The programme is unique in the world and has resulted in a marked improvement in human rights observance as far as the police and intelligence organisations in Zimbabwe are concerned. The education programme also conducts workshops and seminars for magistrates, school children, prosecutors, defence counsel and co-operatives. The LRF has also co-operated with the Commonwealth Human Rights Unit in conducting seminars on human rights for civil servants in Zimbabwe. Various ad hoc programmes are organised and, by way of an example, we are presently working on an alternative sentencing seminar programme in a bid to seek ways of reducing our prison population and to finding alternative forms of punishment to whipping of juveniles.
3. Publications Programme
The LRF has set up a completely separate publications unit in Harare. With the assistance of a network of lawyers in private practice and legal academics the publications unit is now the only publisher of law reports, legal text books, legal pamphlets, indices to legislation and the like in Zimbabwe. The publications unit also now produces a quarterly magazine called Legal Forum which is principally designed to address human rights issues in Zimbabwe.
OBSTACLES FACED
l. In-experience
The process of developing the multi-pronged programmes of the LRF has been hindered by the dearth of any detailed information about similar schemes in other parts of the world and specifically in Africa. The paralegal programme especially has been pioneering work and to be frank several mistakes have been made in the implementation of the programme simply because of our inexperience. To combat this obstacle the LRF must observe the following other organisations:
(a) Need for contact with other similar organisations prior to the implementation of any programme.
Prior to the establishment of any human rights or legal aid organisation it is imperative that those setting up the organisation visit and spend time with similar organisations in other countries to gain practical experience and vision. This conference is useful in that it provides the opportunity to meet the representatives of similar organisations. However this in itself is not enough; ideally people should visit and spend considerable time with other organisations.
(b) Pilot schemes
The fundamental problem with setting up NGO’s of this nature is that often they are what I would describe as top heavy organisations. All the vision comes from urban based academics and professionals who have little knowledge of the needs and problems of the oppressed or suffering people. It is absolutely vital that a pilot scheme be established prior to the expansion of any legal aid network. The pilot scheme is useful in identifying the mechanics of the operation, the needs of the underprivileged people and the attitude of Government.
(c) Evaluation
Prior to the expansion of any legal aid scheme it is imperative that any pilot scheme be subject to evaluation by third parties who are completely objective and yet who are also cognisant of the needs and issues faced in the pilot scheme area. Our experience in the LRF is that sometimes one cannot see the wood for the trees and it has taken third parties to identify problems and suggest solutions to them.
2. Resistance from Government
Although I should stress that we in the LRF have been fortunate in that by and large we have enjoyed considerable co-operation from Government, given the experience of other human rights organisations in Africa, resistance from Governments might be the single biggest obstacle any fledgling organisation will face. It is useful to note that the LRF was set up at the height of grave human rights abuses in Zimbabwe and yet it has flourished. The LRF’s success in this regard is due to the following:
(a) Establishing a track record
The temptation is to set up an organisation and thereafter plunge into highly controversial human rights issues right from the very beginning. The experience of Africa certainly shows that many such organisations have been closed down by Government almost immediately. The LRF has deliberately spent many years in building up the organisation without taking on highly controversial issues which threaten the power base of Government. For example we have concentrated on poor law, the needs of the rural community, women’s rights, disabled people’s rights and generally making legal services more accessible. The LRF has not to date addressed issues such as the concept of multi-party democracy although it is now in a position to do so. We can now say without fear of contradiction that the LRF has become an important pillar of the democratic system within Zimbabwe but this would not have occurred had we rushed in. I should stress that it is now our intention to take on more controversial cases through our test case programme.
(b) Discussion with Government Officials
The LRF has always made it a point to explain our objectives to all manner of Government officials from Ministers down to local district administrators. Before the LRF was set up we made quite sure that Government fully understood its objectives. Likewise before we go into any new areas we make sure that the local heads of administration, police, and intelligence, together with chiefs, headmen and others are fully briefed regarding what we intend to do in their areas. Our experience is that this usually dissipates suspicion and has often resulted in us receiving amazing co-operation.
(c) Develop International Contacts
We recognise that even if one adopts a patient approach and advises Government of one’s objectives the time will come when one takes on a particular issue which is ultra sensitive and thus incurs the wrath of Government. Because of this it is absolutely vital to develop closer links with other local and international human rights organisations. We actively network with a wide variety of organisations and try to develop personal contacts with people in those organisations. Whilst the LRF is certainly not immune from any attack from Government we are aware that were we to suffer any attack we now have a large number of friends from throughout the world who would use their influence to bring pressure to bear on our Government.
3. Resistance from the Legal Profession
A potential obstacle is resistance from the legal profession. Lawyers generally jealously guard their position in society and are deeply suspicious of any organisation which has the potential to take business away from the profession. Whilst the LRF generally receives support from the legal profession, opposition has been felt from some quarters. To counter this LRF liaises closely with the Law Society of Zimbabwe prior to implementing any new programmes. Indeed our relationship has now blossomed so much so that we receive considerable moral support from the Law Society, which has lobbied on our behalf to change certain legislation which has restricted our operations.
4. Hijacking by Political Organisations
If a legal aid or human rights group is to become an important pillar of the democratic system in any country it is important that it remains fiercely independent of any political party. It should be obvious that if a human rights group is hijacked by any political group or party its agenda thereafter will be set by the political party and not by the wider interests of society. Furthermore it is likely that the organisation will loose its legal emphasis. To counter this potential obstacle the following needs to be done:
(a) Ensure as far as possible that the Board of Trustees or leaders of the organisation are either non-political or represent a wide range of democratic political opinion within the country.
(b) Respect the rule of law. The moment any legal aid or human rights organisation gets involved in any unlawful conduct or with any organisations committed to acting unlawfully (and I must stress that by this I exclude any organisations which are legitimately striving to bring about multi-party democracy and universal franchise even though those objectives may be deemed “unlawful” by certain Governments) they leave themselves open to being shut down.
4. Lack of Direction
Many organisations start out with wonderful objectives but after a few years find themselves either totally off course or swamped with too much work; often what results is that the organisation looses all credibility with people it attempts to serve and with donor agencies. The LRF’s experience has been that, because it is the only organisation of its type in Zimbabwe, it is continually flooded with various applications to do programmes within the general scope of its objectives and it is constantly in danger of being swamped. To overcome this problem the following need to be implemented:
(a) Focus on principal objectives. From the very outset it is important to clearly identify exactly what the organisation intends to do. Inevitably there will be subsidiary aims and objectives but the principal objective must always be borne in mind.
(b) Constant Review. It is necessary, at least on an annual basis, to review the operations of the organisation in light of the principal initial objectives. If the principal objective is being undermined because of the ancillary operations of the organisation then those ancillary operations should be cut down ruthlessly. Likewise before any new programmes are undertaken they need to be considered in the light of the principal objective. Often it will be very difficult to refuse to take on a new programme because the need seems so great, but the temptation must be resisted! A further problem in this regard is that donor agencies generally give money for specific projects. If those projects are not implemented as effectively as they should have or, worse still, if the money is used for some other programmes, it is unlikely that further funding will be made available.
5. Lack of Funding
I have deliberately placed the discussion of this obstacle towards the end. It is a common obstacle faced by legal aid and human rights groups and many would say that it is their main obstacle. Our experience in the LRF is that the lack of funding should not be the principal obstacle any organisation faces and if organisations deal with the obstacles mentioned above and the points following then usually adequate funding should be forthcoming from international donor agencies. Of graver concern to the LRF is long term funding for the organisation as most donor organisations are not prepared to fund indefinitely. These obstacles should be overcome as follows:
(a) Funding is not usually forthcoming unless considerable initiative is first shown by the fledgling indigenous organisation. Unless a local group of people with integrity and drive are gathered together to support the setting up of an organisation, funding will be difficult to find. Often these people will have to sacrifice their own time and money to set up a small organisation. To give a practical example in Bulawayo, the city where I come from, there was no legal aid organisation when I arrived there in l983. In conjunction with the Bulawayo Legal Practitioner’s Association I set up a small legal aid clinic with no funding whatsoever. The premises were let to us rent free by a local organisation, and local lawyers contributed their time and stationery gratis. The legal aid clinic in Bulawayo struggled along until l986 when an application was put in to a donor agency to transform it into a project centre of the Legal Resources Foundation. Because we had a track record funding was not hard to come by. Likewise the LRF itself started with a small group of committed people who put a lot of their personal time and effort into the organisation before it was set up.
(b) Start small and establish a track record. Most donor organisations are not interested if one comes with huge initial funding requests for hundreds of thousands of dollars. It is necessary to obtain core funding for a relatively small unambitious project. Once that project has been successfully completed, and the organisation has proved itself to be competent and accountable, funding is usually forthcoming for the wider vision.
(c) There must be a plan for long term self-sufficiency
Unless the organisation’s projects are by their very nature short term and finite donor organisations are reluctant to commit themselves to any organisation whose projects are not self-sustainable in the long term. This statement may appear to defeat the very object of legal aid organisations, which by their very nature cannot hope to generate sufficient funds to support themselves in the long term. The latter is of course correct but it does not mean that any non-Governmental organisation cannot become self-sufficient in future. Usually this will require some form of Government involvement and this should be planned for. In our last financial year l990 to l99l the LRF expanded its paralegal programme to half the provinces in Zimbabwe and our total budget for all our projects (including the education and publication programmes) was some one and a half million Zimbabwe dollars. In terms of our next five-year plan we intend extending our operations to all eight provinces of Zimbabwe and we anticipate that the paralegal programme in isolation will be able to operate country-wide on a budget of less than two million dollars per annum. Whilst this may appear to be a large amount of money, in the context of overall Government spending it is a drop in the ocean. Our plan of action is that once we have set up a nationwide paralegal programme which works we will seek grant funding from Government whilst retaining our independence. We believe that Government will give us a sympathetic hearing once we have proved ourselves. Likewise donor agencies are prepared to fund an organisation such as the LRF in the medium term having been advised of our long term funding plan.
6. Keeping Staff
A major obstacle faced by all legal aid and human rights groups is that they are usually blighted by a high turnover of staff. Even if one has fairly adequate funding from donor organisations it is impossible to pay the same salaries as those offered in the commercial world. Furthermore because legal aid and human rights groups are fundamentally committed to upholding the law it goes without saying that unlawful tax perks are out. To compound the problem the very nature of the work means that it is often highly pressurised and demanding. This obstacle can be avoided or at the very least minimised as follows:
(a) Recruitment of staff. It is better to have a small group of highly motivated staff than it is to have the full compliment of staff who are not fully committed to the organisation. It is obviously very difficult to assess who will be committed in the long term to the organisation but this consideration should predominate any selection procedure.
(b) International exposure. Legal aid and human rights groups can never hope to pay commercial salaries but the advantage they can offer is that of international exposure. As indicated above, because of the pioneering nature of this type of work in Africa it is imperative that employees should be given the opportunity to see at first hand similar work being done in other countries. It is also imperative that such employees be given the opportunity to develop personal contacts with colleagues in other organisations both internally and internationally so as to develop a personal support base and vision for the future.
7. Conclusion
I have concentrated on the principal obstacles faced by the LRF which I think will be of general application. There are other obstacles such as those faced in setting up the administrative structure of any organisation which would require a separate paper. It needs to be said however that unless the administration of any legal aid or human rights organisation is run efficiently and in an accountable manner the overall objectives of legal aid and human rights promotion will be thwarted.
DAVID COLTART