ACCESS TO LEGAL AID AS A FUNDAMENTAL ENTITLEMENT UNDER GHANAIAN LAW By Frederick Agaaya Adongo

I want to be the voice of the voiceless”, a prospective law student says forcefully at the Law School entrance interview, when asked why he wants to study law. Perhaps, this statement has continuously been reechoed by generations upon generations of law students throughout the ages, whenever students are seeking to gain admission to the Law School. Nevertheless, it is rather the voice of injustice against the desperate poor that resonates throughout the ages, meanwhile, lawyers ought to owe everyone, if not a legal, then a moral obligation to help them access justice, on the basis of the concept of good neighbourliness (and by ‘neighbour’ here is meant a neighbor, according to the Holy Bible in Luke 10:25-37). As to why that is so, despite the large number of people who sought to be the ‘voices of the voiceless’, no one can best tell. As to whether it is the legal system itself that is unjust, I cannot best tell.

Law is nothing meaningful if it used as a tool to oppress the poor, either directly or indirectly. In this country of ours, one cannot reasonably access justice without the services of a lawyer. What then is justice to the poor man who cannot cater for his basic needs, let alone initiate legal proceedings to protect his rights? In the unreported case of KPEKOBO v. THE REPUBLIC, Justice Taylor percipiently noted thus: “It seems to me that in order to safeguard the liberty of the citizens in whose interest the laws of the Republic are promulgated, it is essential that that indigent and illiterate persons ignorant of the legal process and accused of serious crimes carrying harsh penalties, are not left to their own devises but are assigned learned counsel by way of legal aid. The Courts Act, 1971 (Act 372) s. 110(2) makes adequate and ample provision for this contingency even in the lower hierarchy of our judiciary. It is about time circuit court judges and district court magistrates turned their attention to these provisions in order to avoid unnecessary injustices now becoming too frequent in their operation of the criminal law.”

Unarguably, one of the central themes that underpins the 1992 Constitution of Ghana is the elaborate inclusion therein of all manner of rights to which every person is entitled. Accordingly, Chapter Five (5) of the Constitution, entitled FUNDAMENTAL HUMAN RIGHTS AND FREEDOMS, has provided diverse plethora of rights enjoyable by every person, wherefore the courts have been given the clear and unequivocal power to enforce same. Interestingly, a perusal of the entirety of Chapter Five of the Constitution reveals that no provision is included therein on the right to have access to legal aid.

Rather, provisions on legal aid have been sparingly added in Article 294 of the Constitution which provides as follows:

  • For the purposes of enforcing any provision of this Constitution, a person is entitled to legal aid in connection with any proceedings relating to this Constitution if he has reasonable grounds for taking, defending, prosecuting or being a party to the proceedings.
  • Subject to clause (1) of this article, Parliament shall, by or under an Act of Parliament, regulate the grant of legal aid.
  • Without prejudice to clause (2) of this article, Parliament may, under that clause provide for the granting of legal aid in such matters other than those referred to in clause (1) of this article as may be prescribed by or under that Act.
  • For the purposes of this article, legal aid shall consist of representation by a lawyer, including such assistance as is given by a lawyer, in the steps preliminary or incidental to any proceedings or arriving at or giving effect to a compromise to avoid or to bring to an end any proceedings.

Now, does the fact that Article 294 is outside of Chapter Five of the Constitution, mean that the Constitution does not contemplate access to legal aid as a fundamental human right? A critical consideration of our country’s constitutional jurisprudence will, of course, trigger one to answer this question with thoughtless haste in the negative. There are ample authorities to support the claim that other rights can be enforced under the Constitution, which are not necessarily treated under Chapter Five.

A good example of the immediately preceding claim is the case of the Directive Principles of State Policy under Chapter Six of the Constitution, 1992 which has bearings on human rights. The question whether the human rights provisions under this Chapter are enforceable was a subject of consideration in the case of NEW PATRIOTIC PARTY (NPP) v. ATTORNEY GENERAL (THE 31ST DECEMBER CASE) [1993-94] 2 GLR 35—192. In that case, Adade JSC noted as follows: “I do not subscribe to the view that chapter 6 of the Constitution, 1992 is not justiciable: it is.  First, the Constitution, 1992 as a whole is a justiciable document.  If any part is to be non-justiciable, the Constitution, 1992 itself must say so.  I have not seen anything in chapter 6 or in the Constitution, 1992 generally, which tells me that chapter 6 is not justiciable.” Here, Bamford-Addo JSC in the minority held a contrary view, to the effect that they are outrightly not justiciable.

Again, in the case of NEW PATRIOTIC PARTY v. ATTORNEY GENERAL (THE CIBA CASE) [1997-98] 1 GLR 378, when the issue arose again, Bamford-Addo JSC who was in the majority held a slightly different view from her earlier position in the 31st December Case.  She there said: “the directive principles have no separate existence; they are measures by which laws are judged for constitutionality and they afford a yardstick by which policy decisions are to be taken and implemented for the establishment of a just and free society. This means that until they are read and applied in conjunction with any substantive guaranteed human rights and freedoms set out in chapter 5 of the Constitution, 1992, they remain only guidelines, and are not enforceable rights by themselves.

Any seeming controversy as regards the enforcement of the Directive Principles of State Policy as provided for under Chapter Six of the 1992 Constitution is now only a historical banter as same was laid to rest by the Supreme Court, speaking through Date-Bah JSC in the case of GHANA LOTTO OPERATORS ASSOCIATION & OTHERS v. NATIONAL LOTTERY AUTHORITY wherein he stated thus: “Prima facie, one would have thought that everything in a Constitution should be justiciable.  The Constitution is a legal document containing the most important rules on political governance.  The courts have the responsibility of ensuring that these rules are complied with.  To my mind, therefore, the starting point of analysis should be that all the provisions in the Constitution are justiciable, unless there are strong indications to the contrary in the text or context of the Constitution.”

Therefore, as a necessary consequence of the above postulations, one can argue convincingly, albeit with some degree of caution, that there cannot now be any tenable contention that only the provisions in Chapter Five of the Constitution are enforceable human rights. In that light therefore, although access to legal aid as provided for under Article 294, falls outside of Chapter Five of the Constitution, it is nevertheless an enforceable fundamental human right for the reasons afore-stated.

Again, a view has been expressed by many jurists, including Prof. Kofi Abotsi in his book CONSTITUTIONAL LAW OF GHANA, wherein he noted without equivocation to the effrect that article 33(5) of the constitution expounds the scope of human rights virtually ad infinitum by providing that the provisions of the constitution on human rights are not exhaustive of all rights enforceable by our courts. The said article provides that “the rights, duties, declarations and guarantees relating to the fundamental human rights and freedoms specifically mentioned in this Chapter shall not be regarded as excluding others not specifically mentioned which are considered to be inherent in a democracy and intended to secure the freedom and dignity of man.” The import of this provision was to express the high threshold of importance that the framers of the constitution attached to the notion of human rights, perhaps driven by our chequered political history, coupled with the many dictatorial regimes that we had experienced as a country in our recent past, where widespread human rights violations became the norm of the day.

A number of leading Ghanaian cases have illustrated the zeal and readiness of the courts to enforce the rights contemplated under Article 33(5). Commenting on this provision, Francois JSC had said in the 31ST DECEMBER CASE (supra) that, “another example of the all-pervasive and embracing spirit to which there is a mandatory call to obeisance, is article 33(5) of the Constitution, 1992. All are enjoined to go beyond the written provisions enshrining human rights, and to extend the concept to areas not specifically or directly mentioned but which are ‘inherent in a democracy and intended to secure the freedom and dignity of man.” Again, Francois JSC the celebrated case of NEW PATRIOTIC PARTY v. GHANA BROADCASTING CORPORATION (GBC) [1993-94] 2 GLR 354—393 stated that “the Constitution, 1992 demands that a broad and liberal spirit of democratic pluralism should prevail in this country. It in effect accepts previous failures in the constitutional experiment and consequently attempts an all-embracing liberal framework that would include all possible shades of freedom not specifically or expressly mentioned, but which are essential cogs to enhance the driving capacity of a truly free-wheeling democracy.

More recently, Sophia Akuffo JSC poignantly opined in the case of ADJEI AMPOFO v. ATTORNEY GENERAL [1996-97] SCGLR 729 that “the reference to ‘others’ referred to in Article 33 (5) could only apply to those rights and freedoms that have crystallised into widely or generally accepted rights, duties, declarations and guarantees through treaties, conventions, international or regional accords, norms and usages.”

In light of the foregoing, it is not far-fetched for one to argue that it is an enforceable fundamental right to have access to legal aid in Ghana. If we align ourselves with the view expressed by Sophia Akuffo JSC (as she then was) in the Adjei Ampofo case supra, the question that calls for determination is whether the right to have access to legal aid falls within the purview of the meaning of “others” as espoused by the learned Justice of the court. To do this, we need to enquire whether we can find any generally accepted norm, treaty, convention, inter alia, that recognizes this as a right. In our enquiry, we come close to an international agreement that has, in very elaborate terms, considered access to legal aid as a fundamental entitlement of every person. Principle 1 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems expressly considers access to legal aid as a right. It provides: “Recognizing that legal aid is an essential element of a functioning criminal justice system that is based on the rule of law, a foundation for the enjoyment of other rights, including the right to fair trial, and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process, States should guarantee the right to legal aid in their national legal systems at the highest possible level, including where applicable, in the constitution.” The right to legal aid is so fundamental that it cannot be reduced merely to the criminal justice process alone. Thus, this provision does not purport to say that legal aid shall be a right only in criminal cases, to the utter exclusion of other cases, civil or otherwise.

Another strand of the argument in favour of the recognition of access to legal aid as a fundamental human right is that the Ghanaian courts have long held that it is a fundamental right of every person to have unimpeded access to the courts of law. This right is regarded so highly that even during a military regime, Edusei J (as he then was) boldly held in LABONE WEAVERS ENTERPRISES LTD. v. BANK OF GHANA [1977] 2 GLR 156 thus: “I am of the view that every person has an unimpeded access to the law courts of this country, and this basic and fundamental right can only be taken away by express provision of a Decree or an Act of Parliament if that Act does not run counter to any provisions of the Constitution that the country may have.” This principle, which is at the core of every democratic framework, is held in such a high esteem that in the case of ERNEST ADOFO & ANOTHER v. ATTORNEY GENERAL & ANOTHER [20/4/2005] WRIT J1/3/2004, Date-Bah JSC famously noted that “under the current constitutional regime, even express statutory provisions cannot take away the right of access to courts.  Such statutory provisions are repugnant to the spirit of the Constitution.” Outlining the principle even more elaborately, Date-Bah further noted therein as follows: “The unimpeded access of individuals to the courts is a fundamental prerequisite to the full enjoyment of fundamental human rights.  This Court has a responsibility to preserve this access in the interest of good governance and constitutionalism.  Unhampered access to the courts is an important element of the rule of law to which the 1992 Constitution is clearly committed.  Protection of the rule of law is an important obligation of this Court.  Accordingly, we are willing to hold that, quite apart from the legal reasoning based on Article 140(1) of the Constitution, which is outlined later in this judgment, it is incompatible with the necessary intendment of Chapter 5 of the Constitution for a statute to provide for a total ouster of the jurisdiction of the courts in relation to rights which would otherwise be justiciable.  This is an interpretation of the Constitution which is intended to reflect a core value of the Constitution, namely, public accountability of the government and its agencies in the interest of democracy.”

Proceeding with this setting, the writer contends that the right to free access to the law courts as espoused above is a meaningless expression unless it is deemed to have intricate relations with the right to access legal aid when one cannot afford legal services. In essence, the two are intrinsically stitched together, never to part ways. One can metaphorically be regarded as a handbag of the other. The reason why this is so is apparent. If the position of the law is that everyone fends for himself, and God for us all, then the purpose of the right to have unimpeded access to the courts will be defeated altogether, because only a section of the populace would actually be able to enjoy that right, whereas rights are to be applied to everyone equally. Yes, this argument may be flawed on logical grounds in the sense that the right applies to everyone equally, in so far as one wants to assert it and can actually afford the incidental costs. Nevertheless, the moral law which is ‘supposed’ to be the guiding tool of every rational being would require the framers of laws to design laws in such a way as not to deny the less privileged the opportunity to assert the rights created thereunder, hence the need for the right to have access to the courts and the right to have access to legal aid to be considered together.

Moving on, we shall now consider the attempts made by the State to protect this fundamental right. In response to the constitutional duty imposed on Parliament under Article 294 as produced in extenso above, the LEGAL AID SCHEME ACT, 1997 (ACT 542) was passed by Parliament, and a Legal Aid Board established thereunder. This Board has been charged with the mandate to develop a comprehensive legal aid programme and policy to be carried out throughout the country, supervise the general administration of the legal aid programme, and approve the selection of lawyers for participation in the legal aid programme without prejudice to the right of an applicant to have a lawyer of the applicants own choice.

Again, Section 114 of the COURTS ACT, 1993 (ACT 459) empowers the Superior Courts of Judicature, and in the case of the ‘inferior’ courts, that is a Circuit Court, or a District Court, with the prior approval of the Chief Justice, unless otherwise provided in the Act, to assign a lawyer by way of legal aid to a party to proceedings before the Court or Tribunal where it appears desirable to the Court or Tribunal in the interests of justice that the party should have legal aid, and that the party is financially unable to obtain the services of a lawyer.

Quite clearly, therefore, the question as regards legal aid in Ghana moves beyond whether there are any provisions on the subject to the sufficiency, appropriateness, and efficacy of the systems put in place to ensure that all persons have reasonable access to justice, through legal aid. To my mind, the means by which this systematic problem is being addressed is itself flawed and problematic. There are a myriad of problems confronting the legal aid scheme in Ghana, including inadequate State funding, unwillingness on the part of many lawyers to enroll in the scheme, the concentration of majority of lawyers in Accra, Cape Coast, Takoradi, Kumasi and Tamale (and this problem is largely because the Superior Courts of Judicature are largely concentrated in these areas, particularly Accra) and the lack of awareness on the part of citizens about the existence of a legal aid scheme. Therefore, the legal aid scheme, though existing on paper, has no practical significance because of the above-noted problems.

Having identified the problems associated with the implementation of the legal aid scheme, it is pertinent to identify some key ways of addressing the long-standing problem of injustice occasioned as a result of the lack of access to legal aid.

To begin with, it is no news that in this age, the legal profession has attracted a lot of individuals for a number of reasons, making it a very competitive endeavor to gain admission to study law. Owing to this, the budding lawyer’s ambition of becoming a member of the noble profession is often foiled with several challenges, thus shattering the dreams of a number of people. But to help address the problem associated with legal aid in Ghana, more lawyers need to be trained in the country, not compromising quality. As the population grows, the need for legal services increases accordingly. Therefore, the market for legal services will be overburdened if a few lawyers are in the system. This reality thereby necessitates an exponential increase in the number of lawyers trained yearly.

One realizes that the training of lawyers per se does not solve the problem associated with legal aid. Thus, training more lawyers is not an end in itself but a means to an end. Hence, once more lawyers are trained, it must be made a requirement that every young lawyer undergoing pupillage performs a number of hours of legal aid. Better still, National Service for law students can be modeled in such fashion as to make law students have their service with the Legal Aid Scheme where, under the auspices of experienced lawyers, they would perform a number of legal aid services to those who cannot afford. Again, it should be made an essential prerequisite to the renewal of solicitor’s licenses that every lawyer must have performed a number of hours of legal aid services per year.

Another key way of addressing the issue of lack of access to legal aid is through advocacy and public education. The National Commission for Civic Education (NCCE), as established under Chapter Nineteen of the 1992 Constitution, should intensify its campaigns by educating the general public, especially the poor, about the existence of a legal aid scheme which would help them in addressing their legal issues. Other relevant agencies may also be set up to carry out a similar mandate to ensure that every person is reasonably informed about the rubrics of legal aid in Ghana.

Finally, the State has to realize the importance of legal aid in a democratic set-up and allocate enough funds to the Legal Aid Scheme. This will, in the long run, help to incentivize lawyers to enroll in the legal aid programme, thereby reducing the burden on the few lawyers currently thus enrolled.

By way of conclusion, in case one is wondering as to what I attempted to do, this is a summary of what I sought to do herein. I basically assert that there are at least three grounds based upon which one can argue that access to legal aid is a fundamental human right. The first ground is that it is provided in the Constitution, although not under Chapter Five, which discusses fundamental human rights and freedoms. The second ground is that it can be premised on Article 33(5) of the Constitution, which is to the effect that there may be other rights not expressly recognized as such under Chapter Five. The third ground is that the right to have access to legal aid is a necessary corollary of the right to have unimpeded access to the courts, thus the two of them move hand in hand with each other. Thereafter, I make a sparing attempt to identify some of the problems associated with the legal aid scheme in Ghana and further proffer some solutions to the problems as identified.