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December 11, 2023

Post-Project Advancements: Eswatini Moves One-Step Closer to Unlocking Legal Aid Thanks to WAGE’s Locally Led Approaches

Special thanks also goes to . . . ABA ROLI . . . working in partnership with the Ministry of Justice and Constitutional Affairs, as part of the ABA ROLI’s Women and Girls Empowered (WAGE) program in the country.”

Pholile Shakantu, Minister of Justice & Constitutional Affairs

Remarks at the opening of Eswatini’s first Legal Aid Office | August, 30, 2023

Opening Eswatini’s Legal Aid Office in August 2023, the Minister of Justice and Constitutional Affairs highlighted the role of the American Bar Association’s Rule of Law Initiative — and the WAGE project specifically — in advancing legal aid in Eswatini. Since 2020, ABA ROLI has pressed for legislative change to unlock legal aid in Eswatini. At present, Eswatini has no government-funded mechanism for legal aid. And Eswatini permits only private, for-profit attorneys to file pleadings and represent clients in court — a statutory framework that is commonly interpreted to disallow nearly all forms of legal aid, including: pro bono service, donor-funded legal aid, and market-based approaches like contingency fee arrangements. While a few select actors purport to offer legal aid, this assistance almost never includes legal representation. Rather, NGOs and other justice sector actors provide potential litigants with legal information, advice, mediation, or, occasionally, referral to a sympathetic attorney in private practice.

The result is clear: Eswatini’s justice sector may only be accessed by those who can afford private, legal counsel. Under the WAGE program, ABA ROLI recognized the particularly devastating effect this situation has on women and adolescent girls. Eswatini’s Constitution (2005) contains numerous rights and protections for women, from guaranteeing equal protection in law to setting minimum thresholds for representation in Parliament’s House (30%) and Senate (43%). Other longstanding domestic laws provide gender-focused protections, as well, such as the right of women to earn equal pay for equal work. And more recent legislation has seen Eswatini implement domestic laws to meet international commitments that protect women and children from exploitation and violence. But the reality is that these rights often remain unrealized because of a lack legal representation.

The WAGE project’s learning agenda asked: What activities are effective in reducing structural and societal barriers to women’s economic empowerment, women’s peace and security, and gender-based violence.In Eswatini, the WAGE project answered that significant legal protections already existed in law to help protect women from economic exploitation; to raise-up their participation in the legislative process; and, to better secure women’s peace, security, and protection from gender-based violence. The gap was not necessarily the laws on the books, but rather the ability of women and adolescent girls to access the courts and assert the rights and protections available to them in law.

Under the WAGE project, ABA ROLI worked closely with Eswatini’s government, providing technical assistance to draft legislative amendments that would open the justice sector to legal aid. WAGE then conducted years-long advocacy efforts with key stakeholders — inside and outside of government — to ensure buy-in. And WAGE designed and published the first nationally representative study on legal aid and legal needs in Eswatini, providing the qualitative data necessary to understand the scope of the need.

The WAGE project also recognized the benefit of wide stakeholder consultation and inclusion to improve the local ownership and sustainability of the WAGE project’s results and learning. (See WAGE learning agenda question 6). Although the WAGE project ended its Eswatini activities in June 2022, legal aid has continued to progress because of local buy-in. In August 2023, Eswatini’s government opened its first legal aid office, laying the groundwork for government-funded legal aid. But in announcing the opening, the Minister of Justice made clear that legislative change — the work WAGE pressed so hard for — is still required to unlock what emaSwati want most: legal representation.

WAGE’s work in Eswatini made clear the link between the protection and empowerment of women and girls and the ability of emaSwati to access justice. Opening Eswatini’s first government-funded legal aid office is a milestone worth celebrating. But thanks to WAGE’s work, the opening came with a clear-eyed call for further action, recognizing that the work is not done until Eswatini alters its statutory framework to allow the most common and impactful forms of legal aid: government-funded legal representation; pro bono service; market-based approaches, such as contingency fees; and, donor-funded legal aid, so that Eswatini’s NGOs may hire lawyers and offer legal representation directly to beneficiaries.

The Minister of Justice’s call for legislative change to unlock legal aid is proof of concept: WAGE successfully sensitized Eswatini’s government — as well as a cohort of locally led stakeholders — to the technical barriers blocking legal aid in Eswatini. As a result of this wide stakeholder involvement, and locally led approach, advocacy has continued after project end. With a new Parliament elected in September, and a Cabinet sworn-in in November, Eswatini now turns to the new year with a clear, widely understood goal: amend the Legal Practitioner’s Act so that justice is no longer conditioned on a litigant’s means, but on the merits of their case.

Published on December 12, 2023.

    *Disclaimer: The views and opinions expressed in this blog post do not necessarily reflect the views of the United States Government. 
     
    Women and Girls Empowered (WAGE) is a global consortium to advance the status of women and girls, led by the American Bar Association Rule of Law Initiative (ABA ROLI) in close partnership with the Center for International Private Enterprise, Grameen Foundation, and Search for Common Ground. WAGE works to strengthen the capacity of private sector organizations (PSOs) and civil society organizations (CSOs) in target countries to improve the prevention of and response to gender-based violence (GBV); advance the women, peace, and security (WPS) agenda; and support women’s economic empowerment (WEE). In this context, WAGE provides direct assistance to women and girls, including information, resources, and services they need to succeed as active and equal participants in the global economy. WAGE also engages in collaborative research and learning to build a body of evidence on relevant promising practices in these thematic areas. To account for the deeply interconnected nature of women’s and girls’ experiences, WAGE’s initiatives employ approaches that are highly collaborative, integrated, and inclusive. WAGE is funded by the U.S. Department of State Secretary’s Office of Global Women’s Issues.

    The materials contained herein represent the opinions of the authors and editors and should not be construed to be those of either the American Bar Association unless adopted pursuant to the bylaws of the Association. Nothing contained herein is to be considered as the rendering of legal advice for specific cases, and readers are responsible for obtaining such advice from their own legal counsel. These materials and any forms and agreements herein are intended for educational and informational purposes only.