Challenges in Drafting Legal Aid Legislation for Developing Countries with Limited Numbers of Lawyers and how to deal with them

Paper presented at the 2013 CLEA Conference in Durban

Professor David McQuoid-Mason
School of Law, University of KwaZulu-Natal

I have experienced a number of challenges when drafting legal aid legislation for developing Commonwealth countries with small numbers of lawyers. I use the following principles for developing effective and legitimate legal aid schemes in developing countries: accessibility, affordability, accountability, sustainability and credibility. These principles are often accepted during legal aid round-table discussions and validation workshops involving the relevant role players in the administration of justice – but once the agreed draft policies and bills are sent to the administrators, judiciary and legal profession for approval and fine tuning they tend to be undermined. This is usually due to: (a) the ‘colonial mentality’ of the judiciary and practising lawyers; (b) lack of confidence in traditional dispute resolution mechanisms; (c) scepticism regarding the use of paralegals; (d) failure to recognize the value of self-help mechanisms; (d) over-bureaucratization of the legal aid scheme; and (e) lack of provision of the necessary resources by the state. The challenges regarding these obstacles will be discussed and suggestions made on how to deal with them.

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