BOFAI

DESIRABILITY AND EFFECT OF PRO BONO SERVICES TO INDIGENTS, THE CORRECTIONAL CENTRES, AND SOCIETY AT LARGE

This article sets out to examine the state of pro bono services by lawyers in Nigeria vis-à-vis the current state of the availability and ease of the indigent’s access to justice.

It has been said that access to justice goes beyond access to lawyers and courts and that access to justice entails normative legal protection, legal awareness, legal aid and counsel, adjudication, enforcement and civil society oversight amongst others.[1]

It must be said from the outset here that it is in the interest of justice that all and sundry have access to justice notwithstanding their status.

Furthermore, the Nigerian Constitution (“Constitution”)[2] affords every citizen and residents of Nigeria access to fair hearing under section 36(1). On fair hearing, the Supreme Court of Nigeria in the case of Attorney-General of Rivers State v. Gregory Obi Ude[3] held that:

“A hearing of matter in court cannot be said to be fair if any of the parties appearing in court is refused a hearing or is denied the opportunity to be heard or present his case or call evidence.”

This right as provided by the Constitution has been incapacitated as many indigents have found it difficult to hire the services of a lawyer and the situation has accordingly promoted the violations of the human rights of the indigent.

Finally this article suggests a number of ways by which pro bono activities by lawyers could be promoted in Nigeria.

 

INTRODUCTION

The term “pro bono” is a commonly-used short form of the Latin phrase “pro bono publico” meaning “for the public good”. In the legal profession, it refers to a situation where lawyers volunteer or are mandated to provide a degree of free legal services to the indigent in order to further access to justice.

It should be said here that pro bono legal services should not be confused with legal aid. Legal aid is a government programme where government funding is used to provide legal representation to persons in certain categories of cases, after applying a means test which examines their financial resources.[4] Most legal aid representation takes place in criminal cases. The lawyers who represent people in legal aid cases do not work for free; they are either government employees or private legal practitioners who are paid out of government funds.[5]

INTERNATIONAL LEGISLATIONS ON ACCESS TO LEGAL AID

Article 10 of the Universal Declaration of Human Rights, to which Nigeria is a party, states that:

Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.[6]

In addition, Article 14, paragraph 3 (d), of the International Covenant on Civil and Political Rights states that:

Everyone should be entitled, among other rights, “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”.

Article 14 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2012, on the responsibility of member states, provides that:

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 a fair trial, and an important safeguard that ensures fundamental fairness and public trust in the criminal justice process,14 States should guarantee the right to legal aid in their national legal systems at the highest possible level, including, where applicable, in the constitution.

Articles 20, 21, 22 of the 20 of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 2012 further provide that:

  1. States should ensure that anyone who is detained, arrested, suspected of, or charged with a criminal offence punishable by a term of imprisonment or the death penalty is entitled to legal aid at all stages of the criminal justice process.
  2. Legal aid should also be provided, regardless of the person’s means, if the interests of justice so require, for example, given the urgency or complexity of the case or the severity of the potential penalty.
  3. Children should have access to legal aid under the same conditions as or more lenient conditions than adults. 23. It is the responsibility of police, prosecutors and judges to ensure that those who appear before them who cannot afford a lawyer and/or who are vulnerable are provided access to legal aid.

BRIEF FRAMEWORK FOR LEGAL AID AND PRO BONO LEGAL SERVICES IN NIGERIA

The Right to Legal Assistance

The right to legal assistance is guaranteed under section 36(6) of the Constitution but, in practice, accessibility of such assistance varies across the different states.

State Subsidised Legal Aid

The Legal Aid Council (the “LAC”), under the Federal Ministry of Justice, was set up in 1976 by the federal government to provide free legal assistance and advice to Nigerian citizens who could not afford the services of a private lawyer. The Legal Aid Act 2011 (the “Act”) lays out the current rules and policies of the LAC. According to the Act, legal aid shall be granted only to people whose income does not exceed the national minimum wage.[7] The Federal Executive Council does, however, have discretion to authorize legal aid on a contributory basis to a person whose income exceeds this amount provided that that person then pays the LAC a certain percentage of their income.[8]

Alternative Dispute Resolution

The various Rules of Civil Procedure in Nigerian courts mandate lawyers to advise and aid their clients in exploring alternative dispute resolution options before proceeding to litigation. The purpose behind these rules is to enable out of court settlement by litigants in limited cases in order to avoid delay and to reduce the high number of cases pending in courts through negotiation and mediation.

Ombudsman

The official Ombudsman in Nigeria, the Public Complaints Commission, has a mandate to seek control of administrative excesses for non-adherence to procedures or abuse of law. The Commission aims to promote social justice for individual citizens. It also provides a viable option for Nigerians or persons resident in Nigeria seeking redress for administrative errors or injustice, abuse by officials of government or limited liability companies in Nigeria.[9]

Private Lawyers Pro Bono Services

Private attorneys in Nigeria are not required by law to carry out pro bono activities, although the 2009 Pro bono Declaration for Members of the Nigerian Bar Association states that members of the NBA have a responsibility to provide pro bono legal services and that this responsibility stems from the profession’s role and purpose in society, and from its implicit commitment to a fair and equitable legal system.[10]

The declaration states that members should commit to provide, on a pro bono basis, more than 20 hours or three days of legal services per individual lawyer per annum, or in the case of law firms, institutions or other groups of lawyers, an average of more than 20 hours per lawyer per annum.[11]

Notwithstanding the above, it is the practice that private lawyers in Nigeria engage in pro bono activities on a personal basis as many take them on in order to fulfill one of the requirements for the award of the rank of a Senior Advocate of Nigeria.

DESIRABILITY AND EFFECT OF PRO BONO SERVICES TO INDIGENTS, THE CORRECTIONAL CENTRES, AND SOCIETY AT LARGE

With the apparent incapacity of government agencies, such as the Legal Aid Council, to handle the numerous cases on their caseloads and the low participation of lawyers in pro bono legal services, it is obvious that steps must be taken by all stakeholders in order to address this worrisome situation. Due to the difficulty of hiring lawyers by accused persons/suspects and the ineffectiveness of the various government agencies, the percentage of awaiting trial inmates at the correctional centres and suspects in police custodies keep increasing exponentially. As at April 1st, 2020, there are about fifty two thousand awaiting trial inmates out of a population of seventy four thousand inmates in the Nigerian Correctional Centres.[12]

It must be said that as this worrisome situation has not been effectively addressed, it has caused so many undesirable consequences such as the congestion of the correctional centres by awaiting trial inmates and their exposure to various health hazards such as the Covid19 pandemic, lowering of their prospects in the labour market[13] of their potential contributions to the economy, homosexuality, bullying, violence, illicit drug use, suicides and so forth.

It is therefore desirable that an enabling and attractive environment is set up for lawyers to take up pro bono legal services to further support the effort of the various agencies of government agencies and non-governmental organizations who are already providing such services to the indigent. This will further go a long way in doing the following:

  • change the public perception of the profession
  • enhancing the reputation of a firm
  • exposing lawyers to a broader range of clients and social justice issues
  • helping lawyers develop new marketable skills
  • providing lawyers with a feeling of personal satisfaction in contributing to the social good
  • giving young lawyers learning opportunities, and more legal skills

SUGGESTIONS ON THE PROMOTION OF PRO BONO LEGAL SERVICES IN NIGERIA

It is crystal that lawyers have a very important role to play in providing optimal access to justice to the indigent, including but not limited to awaiting trial inmates which will then in turn help in decongesting the correctional centres, and then help to providing meaningful and productive manpower to the society at large.

All stakeholders in the Nigerian legal system must then put all hands on deck to help with this initiative in line with the recent government’s posture on the decongestion of the Nigerian correctional centres. It is on this basis that the following suggestions are made:

  1. The Nigerian Bar Association should ensure that all law firms have standardised pro bono policies. These policies define should define what constitutes pro bono service, include criteria for approval of new pro bono matters and outline procedures for handling pro bono matters;
  2. In addition to formal pro bono policies, law firms should have developed structures and staff devoted exclusively to pro bono matters;
  3. Law firms should be mandated to establish their branches or clinics in rural areas;
  4. Real incentives should be created for pro bono participation, including making the commitment to pro bono work a key factor in decisions regarding partnership and compensation and providing special benefits to lawyers active in pro bono;
  5. Public interest litigation should actively be promoted and supported in the Nigerian law faculties and Nigerian Law School;
  6. Adequate rewards and awards should be given to lawyers who have distinguished themselves in pro bono services; and
  7. Government and other stakeholders should provide more funding for legal aid/pro bono services in order to boost participation.

CONCLUSION

This article has examined very briefly the state of pro bono legal services/legal aid vis-à-vis Nigeria’s obligations under both national and international law to provide access to justice to the indigent and the consequent decongestion of the Nigerian Correctional Centres and the overall benefit to the Nigerian society at large.

Even though there is quite some activity going on the pro bono services/legal aid landscape, this article has been able to bring to bear that more can still be done by proffering suggestions in order to achieve the numerous benefits of the desirability of pro bono services to all and sundry.

 

REFERENCES

[1] Wahab Shittu, “The Challenges of Access to Justice”, 21-07-2015 at https//m.gaurdian.ng/opinion/the-challenges-of-access-to-justcice. Accessed on 22-05-2020 at 4:07 pm

[2] Constitution of the Federal Republic of Nigeria, 1999 (as amended)

[3] (2006) LPELR-626 (SC)

[4] Pro Bono Information About Namibia’s Law on Pro Bono Work by Legal Practitioners in the January 2017 edition of the Legal Assistance Centre

[5] Ibid.

[6] https://www.un.org/en/universal-declaration-human-rights/index.html (Accessed May 22nd, 2020)

[7] See section 10 of the Legal Aid Act, 2011

[8] Ibid

[9] See http://pcc.gov.ng/# (Accessed on May 22nd,  2020)

[10] www.internationalprobono.com/resources/attachment.163155 (accessed on May 22, 2020)

[11] Ibid.

[12] http://apanews.net/en/news/nigeria-moves-to-release-52000-awaiting-trial-inmates (Accessed on May 22nd, 2020)

[13] Dobbie, Will; Goldin, Jacob; Yang, Crystal S. (2018). “The Effects of Pre-Trial Detention on Conviction, Future Crime, and Employment: Evidence from Randomly Assigned Judges”American Economic Review108 (2): 201–240. doi:10.1257/aer.20161503ISSN 0002-8282.

3 thoughts on “DESIRABILITY AND EFFECT OF PRO BONO SERVICES TO INDIGENTS, THE CORRECTIONAL CENTRES, AND SOCIETY AT LARGE”

  1. Darasimi Ajewole

    Nice article, Barrister Agboola, although quite technical for a layman in law. I have a question for your first suggestion; is pro bono cases sustainable for law firms in Nigeria ?

    1. Dear Darasimi Ajewole,

      Thank you for your comment.

      On the technicality, we promise to make our future posts as plain as possible.

      I really believe they are sustainable in Nigeria at least for the top-tier law firms considering the availability of funds and the workforce at their disposal.

      Furthermore, smaller law firms could be mandated to take up pro bono cases depending on their capacities.

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