Background

Swaziland adopted a new Constitution in 2005, which contains a justiciable bill of rights that seeks to promote and protect basic human rights of citizens. Access to justice; fair hearing and right to legal representation is among the basic human rights expected to be conferred by the state. To increase and ensure access to justice, the state has an obligation to provide legal aid services nationally to benefit the poor and marginalised groups. Swaziland remains one of the few countries in the SADC region that does not have a national or sector policy on legal aid. There is no specific legislation that guides the establishment of a legal aid scheme in Swaziland.

A report on the national feasibility study for the establishment of a legal aid system in Swaziland (2011) has revealed that citizens are not aware or sensitised of  their right to access  justice; there are gender disparities in accessing justice based on a range of economic, social and cultural factors; legal costs are generally unregulated thus unaffordable for the majority of the Swazi population; the capacity of judicial institutions and supporting law enforcement agencies is weak in terms of process, procedure and service delivery in general. Users are generally discouraged and are not afforded efficient and effective legal and judicial remedies. The report also highlights four key factors that impede access to justice including absence of appropriate policy and national legal framework; institutional capacity deficiencies; technical and capacity shortcomings on the part of legal practitioners to effectively deliver quality legal outcomes in particular issues relating to human rights and insufficient resources for a sustainable legal aid scheme in Swaziland.

The need for free legal aid services in Swaziland therefore arises in response to demand from the majority of the poor and people in vulnerable circumstances who need access to justice in various forms. Legal aid services facilitate basic understanding of the law and access to services by the poor so that they can have recourse to lawful means of settling disputes and conflicts. It also enables disadvantaged groups to manoeuvre administrative barriers that prevent them from enjoying their rights. 63% of the population in Swaziland live below the poverty line (SHIES 2011) and are largely found in the rural areas where legal services are limited and there is a low level of awareness on legal rights. Legal aid services need to be relevant to the needs of the poor to assist them to secure their rights in matters involving inheritance, family disputes; land encroachment cattle grabbing, family conflict to mention a few. Matters which if not addressed in a lawful manner could lead to mob violence, conflict and community insecurity.

There is also recognition that legal aid services can also redress the balance of power or equality before the law and offer a first line of protection to those in conflict with the law in police stations to ensure their constitutional rights. The perceived benefits of a national legal aid in Swaziland are: access to justice for indigents who would otherwise not be able to access the right to be heard, the elimination of unnecessary detention; speedy processing of cases; fair and impartial trials; and reduction of prison populations and detentions. It is on this premise that a technical expertise is requested to facilitate the development of a comprehensive National Legal Aid Policy including a regulatory framework which will support the establishment of a Legal Aid System in Swaziland in line with regional and international conventions and protocols and also outline appropriate legislations required to facilitate the implementation of legal aid in Swaziland.

The objective is to facilitate the formulation and draft the national legal aid policy in line with regional and international protocols such as the Lilongwe Declaration on Accessing Legal Aid in Criminal Justice Systems in Africa (2004), Paris Declaration, UN Principles and Guidelines on Legal Aid in Criminal Justice, Human Rights Conventions.

Duties and Responsibilities

• Conduct desk review of relevant reports, national legal framework and national, regional and international reports on best practices aimed at providing legal aid and promoting access to justice for indigents and vulnerable persons.
• Conduct in depth consultation with government departments, the Judiciary, non state actors, Swaziland Law Society and other stakeholders on the national policy and legal aid legislation.
• Re-examine the current state legal aid services provided in relation to skills commensurate to offences; appointment; related costs etc and recommend as appropriate costs effective approaches to state owned Legal Aid service delivery.
• Define the scope of the Swaziland national legal aid services and persons eligible to access legal aid.
• Outline the roles of existing and newly proposed institutions and their relationships with each other in providing access to justice including referral mechanisms.
• Identify and recommend an appropriate model of legal aid service delivery considering private - public partnerships and non state actors.
• Propose regulatory mechanisms for legal aid service providers (funding, quality of service, regulation, reporting obligations etc) based on transparency and accountability principles.
• Define criteria and processes for accrediting and monitoring legal aid service providers, non state actors and private institutions.
• Outline appropriate legislations required to facilitate the implementation of legal aid in Swaziland.
• Outline modalities for funding national legal aid work in Swaziland.
• Propose an independent inclusive institutional governing body for the provision of national legal aid services that would facilitate coordination, monitoring and evaluation of the implementation of the national legal aid scheme in Swaziland.
• Draft the national legal aid policy in line with regional and international protocols such as the Lilongwe Declaration on Accessing Legal Aid in Criminal Justice Systems in Africa (2004), Paris Declaration, UN Principles and Guidelines on Legal Aid in Criminal Justice, Human Rights Conventions etc.

 Deliverables:

• Stakeholder’s consultation report.
• A National Legal Aid Policy

Reporting:

• The Consultant will technically report to a multisectoral reference group to be established with a responsibility of overseeing the development of the national policy and  ensure inclusivity and participation of all stakeholders including the review of the final draft policy document for approval.

Remuneration:

• The consultancy fees will be based on UN rates and payment contractual terms.

Competencies

• Proven analytical, organizational development and inter-personal skills.
• Research and evaluation skills including ability to synthesize information
• Excellent oral, and effective presentation and report-writing skills;
• Express clearly and concisely ideas and concepts in writing and orally
• Ability to meet deadlines with minimum supervision.
• Ability to manage conflicting ideas and views from diverse groups
• Excellent social and communication skills
• Excellent computers skills required

Required Skills and Experience

• A minimum of Master’s Degree in the following fields: Law, Public Policy and Development, Political Sciences, Human Rights or a related discipline.

• At least 10 years of relevant professional experience including at least five years experience in policy development and or legal drafting.
• Experience in drafting policy documents, and carrying out research and studies, analysis especially with developing national legal aid policy framework and legislation.
• Substantial knowledge and understanding of setting up state and non state owned legal aid system in the SADC region and internationally. (Experience and understanding of the regional context is essential).