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August 2022

Legal Aid Needs in Eswatini Assessment

Preface

This report presents the findings of a nationally representative assessment on the need for legal aid in Eswatini, conducted between March and May 2022. The survey was commissioned by the American Bar Association Rule of Law Initiative (ABA ROLI), working in partnership with the Ministry of Justice and Constitutional Affairs as part of ABA ROLI’s Women and Girls Empowered (WAGE) program in the country.

The WAGE “Integrating the Response to GBV, HIV and Economic Marginalization of Swati Women” program focuses on addressing gender-based violence (GBV) where it intersects with women’s economic empowerment and economic strengthening initiatives. The program comprises three components: access to justice, prevention, and protection, with a focus on holistic service provision and referrals.

The legal needs assessment was undertaken in pursuit of the first component—access to justice—whose activities have included working with the Ministry and other stakeholders towards better laws to address gender-based discrimination and violence. Following wide consultation with a cross section of justice and GBV stakeholders, ABA ROLI and partners have been advocating for legislation enabling the provision of legal aid, in particular the amendment of the Legal Practitioners Act of 1964 to enable admitted attorneys working outside of private law firms to represent clients who would otherwise fail to defend their legal rights. In addition to enhancing the ability of emaSwati to protect and defend their rights by increasing access to legal representation, legal aid is especially critical for GBV survivors, as many find recourse through the justice delivery system inaccessible, due to the cost of representation by private legal practitioners.

The assessment’s findings capture the perceptions of these women and men who remain outside current justice service provision in Eswatini. This assessment—the first of its kind in the country—ascertains the awareness and attitudes of ordinary emaSwati about the law and their ability to access legal support. The data—scientifically collected and analysed—presents an illuminating snapshot of perceptions toward access to justice, legal problems experienced by emaSwati, the range of dispute resolution mechanisms emaSwati use, as well as the demand for legal aid.

The findings also confirm anecdotal evidence from various government and nongovernmental agencies on the overwhelming need for legal aid. As such, it will inform policy, legislative and sectoral programming by a variety of justice stakeholders that will benefit ordinary emaSwati. It will be necessary, however, to regularly repeat the assessment in the years to come in order to track shifts in perceptions and experience of access to justice over the course of the evolution of the legal aid environment in Eswatini. This will contribute to ensuring that the reach and effectiveness of the justice system is improved on a continuous basis.

In presenting the 2022 Budget Speech, the Minister of Finance stated, “The Government is in the process of establishing a Legal Aid System which will ensure equal access to justice for all, especially the poor and the vulnerable groups consisting of children, women and people living with disabilities. Legal aid allows free legal representation for vulnerable persons in the country. The Government will soon be finalising the amendment of the Legal Practitioners Act and the Legal Aid Bill and will solicit assistance from the country’s development partners to help develop this system. Parliament is requested to facilitate the passing of these bills once they are tabled.” Government’s public commitment is encouraging, but it must now be followed up with urgent action to establish the relevant legal and institutional framework. There is not a moment to waste in making legal aid a reality—it is long overdue, and the longer it is delayed, the more emaSwati are denied justice.

- Susan Marx, Project Director, ABA ROLI Eswatini

Executive Summary

Eswatini’s lacks nearly all standard mechanisms for legal aid. The government does not fund legal aid, and attorneys on staff at NGOs are not permitted to appear in court (only private, for-profit practitioners may do so). Restrictions on advertising prevent attorneys from reaching out to underserved populations about legal assistance and restrictions on touting forbid attorneys from alerting possible litigants to the merit of potential claims. A pro bono culture has not developed among Eswatini’s private bar and Eswatini does not have a pro bono requirement. Market-based interventions, such as contingency fees, are also considered forbidden.

The demand among emaSwati assessed for legal aid, however, is high. Fifty-eight percent of emaSwati surveyed stated that in the last two years they would have benefitted from some form of legal assistance (about half of those specifically singled out legal representation as the type of assistance they would have benefited from). The need for legal aid cuts across all demographics: gender, age, region, the urban-rural divide, education level, employment status, household income, and housing situation.

Yet legal assistance remains out of reach for most. Sixty-nine percent of emaSwati “agreed” or “strongly agreed” that the legal system is too expensive to access. Eighty-nine percent of emaSwati stated that if legal representation were free, they would use the legal system to resolve disputes. Implementing legal aid is overwhelmingly popular. Ninety four percent of emaSwati stated that it was either “very important” (84%) or “important” (10%) to do so. Even though the formal justice system is one of the least utilized dispute resolution mechanisms in Eswatini, it is where emaSwati want to go. And the reasons are clear: emaSwati want legal aid to ensure equal treatment and fairness.

The solutions are not only achievable, but clear. Amend the Legal Practitioners Act (LPA) to permit admitted attorneys who work for NGOs to appear in court. Allow all legal practitioners—including legal aid providers—to reach prospective clients by advertising. And codify that attorneys are not limited to hourly fee agreements but may use market-based approaches to increase access to justice (e.g., flat fees, contingency fees, or no fee at all).

The Government of Eswatini can also make a commitment to finalize the Legal Aid Bill— originally drafted and consulted on in 2013. The Bill would allow for a government-funded legal aid scheme to complement the donor funded and market-based approaches above.

The Government of Eswatini and the Law Society could consider additional changes to legal practice, as well, such as expanding opportunities for serving articles of clerkship; creating limited rights of practice for final-year law students in the University’s law clinic; implementing a pro bono hours requirement; and, ending the limitation that only lawyers in private practice may lead the Law Society.

A few small amendments to the LPA—already drafted, consulted on, and approved by the major stakeholders in Eswatini’s justice sector—can unlock legal aid. The Legal Aid Bill can add an additional, government-funded mechanism to increase the availability of legal aid services. There is an overwhelming need for legal aid, and incredible support for building a justice sector that serves all emaSwati.

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This publication was funded by the United States Department of State through a grant provided to the Women and Girls Empowered (WAGE) consortium. All opinions, findings, and conclusions stated herein are those of the authors and do not necessarily reflect the view of the United States Government, WAGE, or any members of the WAGE consortium.

The Board of Governors of the American Bar Association (ABA) has neither reviewed nor sanctioned this publication’s content. The views expressed herein should not be construed as representing the policy of the ABA. Furthermore, nothing contained in this report is to be considered rendering legal advice for specific cases—readers are responsible for obtaining such advice from their own legal counsel.