ASSESSING THE KNOWLEDGE, ACCESSIBILITY, AND UTILISATION OF LEGAL AID SERVICES IN THE UPPER WEST REGION OF GHANA
1.0 Background to the study
The provision of legal aid services for the poor, marginalized and excluded groups of persons has increasingly attracted the attention of the global development community due to its role in improving access to justice and in providing beneficiaries with access to legal entitlements, resolution of disputes, and justice processes. It has also been globally accepted under the Sustainable Development Goals (i.e. Goal 16) that rule of law and equal access to justice for all should be promoted at both national and international levels and that adequate investments in legal aid provision should also be made.
Legal aid provision has emerged as a crucial tool aimed at strengthening democratic governance, fostering peace and achieving progress towards sustainable development. It has been regarded as an important tool in tackling issues of women’s inheritance rights, empowering local communities to promote the accountability of extractive industries, securing legal identity or ensuring equal access to health, education and other social and economic services (UNDP, 2016).
In the African region, access to justice by impoverished and marginalized people has been a constraint. Women living in rural areas are denied their rights to inherit the property of their deceased spouse, subsistence labourers are denied their wage by persons who engaged their services, and some persons at times are held in police custody without due process of law. In view of these, many African countries have guaranteed the right to a fair trial and equal access to legal service in their Constitutions. The right to legal aid in Africa has been affirmed in various regional human rights documents such as the 1999 Dakar Declaration and Recommendations, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (2001), the 2003 Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Women in Africa and the 2004 Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice System in Africa (UNDP, 2016b; Atuguba et al., 2006).
In Ghana, legal aid provision is the resultant effect of what transpired during the years of Criminal Assizes where the absence of defense counsels in criminal sessions adversely affected the administration of justice. To forestall the situation at that time, lawyers were assigned cases as a social responsibility to defend accused persons in the criminal sessions. The defense counsel delivered their services without charging the otherwise due fees. However, with increasing population, it became imperative to formalize the practice as a way of making justice delivery equitable and accessible. This led to the establishment of the Legal Aid Schemed administered by the Legal Aid Board under the Legal Aid Scheme Law of 1987 (P.N.D.C.L 184). To further enhance the delivery of legal aid services, the 1992 Constitution in Article 294 enjoined the Parliament of Ghana to regulate the grant of legal aid and also provides a framework for what constitutes legal aid. In pursuant to the Constitutional provision on legal aid, Parliament established the Legal Aid Scheme under the Legal Aid Scheme Act, 1997 (Act 542). This Act, in essence, re-enacted the Legal Aid Scheme Law of 1987 (P.N.D.C.L 184) and ensured the effective operation of the Scheme and brought the provisions of the Scheme into consonance with Articles 19(2), 35(3), 37(1) and 294 of the 1992 Constitution. Article 35 (3) of the Constitution requires that the state promotes just and reasonable access by all citizens to public facilities and services in accordance with the law. Article 37 (1) of the 1992 Constitution also mandates state managers to pursue a social objective of directing state policies towards ensuring that every citizen has equal rights, obligation and opportunities before the law (Atuguba et al., 2006).
1.1 Problem Statement
For many socially and economically disadvantaged persons, the formal justice systems for dispute resolution may prove inaccessible because of the costs involved, the complex nature of procedures, the inability to procure legal information and representation, and a general lack of knowledge about rights and the means to enforce them. Legal aid services which include assistance in the form of information, counseling, and representation in court for the poor are meant to help them overcome their challenges in obtaining justice through the formal justice system. Legal aid services are not only important in and of themselves but also serve as “gateway” services to help access other services, for example, those involving healthcare or alimony and child support. For legal aid service provision to be effective, there is the need to make it easily accessible to the poor and targeted persons constituting the demand-side (Atuguba et al. 2006; Prettitore, 2013; Anderson, 2003).
In societies face with significant socio-economic developmental gaps such as Ghana, the issue of knowledge, access and utilization of legal aid services is a necessary requirement for promoting rule of law and good governance. This is because, without legal aid services, a significant proportion of people who are economically and socially disadvantaged would be unfairly treated in their quest to access the justice system. The effect of limited or no access to the justice system for the redress of their problems can be damning on rule of law and good governance (UNDP, 2016b).
In Ghana, the justice system does not guarantee free legal services for the poor and less-privileged people who are unable to employ the services of a counsel to represent them. Most of the few licensed legal counsels in the country reside in major cities and regional capitals. Consultation fees charged by counsels before the commencement of the legal process are also highly exorbitant for the economically disadvantaged in society. The only State-Funded Legal Aid Scheme does not exist in all district capitals of the country. The scheme is also under-resourced and ill-equipped to deliver its mandate to the socially and economically disadvantaged in society. Meanwhile, a greater percentage of the country’s population resides in rural Ghana. Most rural Ghana is also faced with huge infrastructural development gap including the lack of motorable roads to facilitate the movement of people and goods from rural settings to urban centres. There is also the non-existence of private organizations in rural settings with the capacity to provide free legal aid services to the poor across board. As a result, accused persons who cannot afford the services of the court and legal counsel are victimized by the law without anybody defending them of their rights. The situation has contributed to the growing number of prison inmates that characterized Ghana’s prisons of today. Also, some accused persons are confined to police cells over several months in contravention of Ghana’s 1992 Constitution.
The availability of justice systems and the ability of people to utilise their services is a powerful tool for the distribution of power and rights in every society. Access to legal aid services which forms part of Ghana’s justice system is inextricably linked to the right of a socially and economically disadvantaged person to obtain a counsel throughout a legal process. Without available legal aid services, the right to counsel enshrined in Ghana’s 1992 Constitution becomes meaningless for many accused persons. This is because access to justice is not only about the economic elite utilising formal justice systems to resolve disputes. It is also about utilising the justice system to respond to the needs of the poor, to hold government accountable and redress power imbalances that lead to the concentration of power and resources in the hands of the economically elite (UNDP, 2016c; Atuguba et al., 2006).
Though Ghana has made frantic efforts in the provision of legal aid services over the past decades, limited operational coverage and lack of adequate knowledge by prospective clients about the services of Ghana’s Legal Aid Scheme remains a challenge in the utilization of legal aid services in most rural parts of the country. Those who are aware of and apply for legal aid are faced with delayed services from a severely understaffed and underfunded scheme. Meanwhile, it is often stated that “justice delayed is justice denied”.
1.2 Main Research Question
What is the level of knowledge, access, and use of legal aid services in the Upper West Region of Ghana?
1.2.1 Specific Research Questions
The study specifically intends to answer the following questions:
1. What is the level of knowledge of people in the Upper West Region on Legal Aid Scheme?
2. How accessible is the Legal Aid Scheme to the socially and economically disadvantaged in the Upper West Region?
3. What is the level of patronage of Legal Aid Services by the socially and economically disadvantaged in the region?
4. What are the operational challenges in the delivery of legal aid services in the region?
1.3 Main Research Objective
The main research objective is to assess the level of knowledge, access and utilisation of legal aid services in the Upper West Region.
1.3.1 Specific Research Objectives
The specific objectives of the study are:
1. To ascertain the level of knowledge of people in the region about the Legal Aid Scheme.
2. To determine the accessibility of the Legal Aid Scheme to the socially and economically disadvantaged in the region.
3. To find out the level of patronage of legal aid services in the region by the socially and economically disadvantaged.
4. To ascertain the operational challenges faced by the scheme in the delivery of legal aid services in the region.