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Legal aid to women at Khartoum State.

Introduction

The right to access justice is a broad concept. It begins by being recognized as a legal right, and includes the equal protection of all rights and access to judicial instruments that achieve such protection. The different legal systems aim to guarantee the right of access to justice, incorporate it in the constitutions, and adopt legal rules that make it a reality. Sudan is not an exception to this rule, as the Interim National Constitution 2005 provides many rules to protect this right. It mentions that the right to litigation shall be guaranteed to all persons, and no person shall be denied the right to sort to justice (Art 34)

Moreover the Bill of Rights, which is part of the Interim National Constitution of Sudan 2005 mentions many other rights related to administration of justice to strengthen the right of access to justice, such as the right of every person, in civil and criminal proceedings, to be entitled to a fair and public hearing, by an ordinary competent court, in accordance with procedures prescribed by law (Art. 34) (2).

The right of access to justice is not only confined to procedural issues of justice system e.g. opening the criminal cases, hearing the parties, verifying evidences and the other technical devices used by judicial system to reach justice. Instead, it is affected by other influential financial and cultural factors that endanger equal access to justice. Naturally, the justice institutions may face some sectors of society which have no financial capability or sufficient awareness to enable them to have access to justice. There are many constraints that affect the right of access to justice for many people an example of these are: The high fees in civil procedures cases and the expensive fees of lawyers. Therefore, the financially weak sectors of society may not be able to have access to justice, or continue their cases before the courts.

The paper discusses the legal aid, as a tool that enables indigent to have access to justice. It focuses on the situation of legal aid to women in Khartoum State for many reasons as follows: First, The women crimes in Khartoum State increased in the last two years, as they reached 51,7% of the total crimes in the State (Ministry of Interior 2009; Ministry of Interior 2010). Second, there are many cases primarily concerns women e.g. family law cases. Khartoum State is the political and economic capital of Sudan with high rate of population (Central Bureau of Statistics 2011) (3)

This paper discusses the issue of legal aid to women in Khartoum State by verifying the concept of legal aid itself at jurisprudential and legal levels, and the extent to which the Sudanese law adopts the device of legal aid in criminal and civil procedures. It also discusses the nature of legal aid supplied to women in Khartoum State.

The concept of legal aid

Legal aid is one of the mechanisms used to help the indigent persons to have access to justice, and to enhance their awareness of their legal rights. The law jurists gave many different definitions of the concept of "legal aid". These definitions are related to the lawyers, their different views towards the subject of legal aid itself, the areas it covers, and the financial support. (4) It may be useful to state the characteristics of legal aid, extracted from the different definitions of legal aid, as follows: First, it is a governmental system of funding those who are unable to pay for advice or representation. Second, it encompasses criminal and civil cases as well. Third, it covers pretrial and post-trial procedures. Fourth, it covers the cost of legal advices to needy persons and also efforts of raising legal awareness.

Legal aid in Sudanese constitution and legislation

The Interim National Constitution declared that: "Any accused person has the right to defend himself/herself in person or through a lawyer of his/her own choice and to have legal aid assigned to him/her by the State where he/she is unable to defend him/herself in serious offences" (5). This provision implies that legal assistance is only confined to serious offences in criminal cases. So, neither the unserious offences nor the civil cases are covered by constitutional provisions.

At the legislative level, there is no separate legislation for legal aid, organizing its procedures and stating its rules. (6) In this respect it is pertinent to note that Sudan is different from many other African countries which promulgated legislations for legal aid in criminal and civil procedures (Legal Aid Act 1969) (7). The provisions concerning legal aid in Sudan are only confined to some sections scattered in the Constitution, the Civil Procedures Act 1983, the Advocacy Act 1983, and the Criminal Procedures Act 1991. So there is no coherent legal system for legal aid in Sudan (Legal Aid Leaflet 2010).

Legal aid in criminal procedures

The assistance of a lawyer is one of the faces of access to justice (8). By a lawyer's legal knowledge and experience, he or she may safeguard the accuracy of the procedures and decisions taken against the accused, as well as properly prepare the case to be presented to the court (Stapleton 2007). Despite the fact that Sudanese Constitution regarded legal aid as a fundamental right, (9) the judicial attitude and opinions have not accurately reflected this constitutional provision. Instead, the courts practice has regarded legal aid as a privilege given to the accused person who has got the option to ask for a lawyer to assist him (Shawl 1977, p. 93) (10) There is no obligation on the court to appoint a lawyer if the accused person failed to ask for one. If a person does ask for a lawyer, he must pay the lawyer's fees. However, in cases where he is unable to pay and still requests a lawyer, the Attorney General may arrange for his judicial aid. If the accused person does not express his desire to have the assistance of a lawyer, and consequently does not have a lawyer, this does not affect the validity of the Court proceedings (11).

Legal aid pre-trial and in prison

There is no right of legal aid in the Sudanese legislations before the presentation of the case before the courts, or after the end of the judicial proceedings. It is an issue only concerned with the trial, even if the offence is punishable by death or it is a serious offence (12). This is a big restriction to the right of legal aid, because the stages before trial are very important for achieving criminal justice, as some fundamental rights may be restricted by certain limits such as arrest, investigation and distress upon properties (Criminal Procedure Act 1991) (13). As the legal aid aims to safeguard the rights of the accused, it is important to enable the detainee to have access to his lawyer even after the end of the trial, to exclude the unnecessary detention and to guarantee the fairness of the trial by way of appeal or otherwise. The legal aid may play a considerable role in helping the detainees to be aware of their legal position, accelerating the procedures of the undecided cases and to guarantee the other rights of the detainees after trial (United Nations 2011).

Legal aid in civil procedures

The role of legal aid in civil cases in Sudanese law is confined to allow the applicant to sue as a pauper, if he is unable to pay the fees of the suit. There is no governmental obligation to give a service of representation before the civil courts (14).

a. The fees

The law imposes fees on civil litigation proceedings. It gives the payment of the fees an added importance by regarding the date of payment of fees as the date of instituting the suit that is, the suit shall not be regarded as instituted unless the fees are paid. Moreover the failure to pay the fees within twentyfour hours from the date in which it is ordered by the court, results in dismissing the case. (15)

The law took into consideration the difficulties that face the plaintiffs in certain cases, and excluded them from paying the fees or imposed nominal fees as in the family law cases (16), because they concern the family matters. The parties to these cases are usually women who are the weak parties in the Sudanese society. Also the plaintiffs are excluded from paying fees in cases of labour law disputes (Labor act law 1997 and social security law (The Social Security Act 1999) for reasons similar to those of the family law cases.

b. Suing as a pauper

The fees are a heavy duty in the civil proceedings, especially to a poor applicant, with regard to the rule that: It is calculated as a percentage of the total value of the case. The Civil Procedures Act 1983 adopted a rule of excluding the poor from paying the fees if it is proved that he is unable to pay (The Civil Procedures Act 1983). (17)

The Sixth Order attached to the Civil Procedures Act 1983 defined the pauper as a person who is not possessed of sufficient means to enable him to pay the fees prescribed for the hearing of the suit or objection as the case may be (The Civil Procedures Act 1983). (18) To verify the fact that the applicant is a pauper, he should apply in writing for a permission to sue as a pauper. The application should be accompanied by: First, a list of any movable or immovable property belonging to the petitioner with its estimated value. Second, a certificate signed by two persons and authenticated in such a manner as the Court may require that the petitioner is a pauper (The Civil Procedures Act 1983). (19)

These procedures aim at verifying the poverty level of the petitioner to sue as a pauper. If it appears that he gave false statements about his property, his petition will be rejected (20). The problem in suing as a pauper is that it requires complicated proceedings the poor persons may not be aware of or have financial ability to go through.

Legal aid in the advocacy act 1983

The Advocacy Act 1983 includes many rules for providing legal aid to indigent people in criminal and civil cases in specific circumstances. It covers legal advice and representation before the courts, in both civil and criminal cases.

In criminal cases the request for legal aid is to be presented to the Undersecretary of the Ministry of Justice. Then it is referred to the Advocates Admission Committee. Any criminal court may also require the Commission to appoint an advocate to defend on behalf of an accused (The Advocacy Act 1983). (21)

In civil cases, the Committee may look into applications for legal aid if two provisions are satisfied: First, the applicant is proved to be an indigent person. Second, there are reasonable causes for the suit (The Advocacy Act 1983). Actually the committee is only one committee, located in the premises of the Federal Supreme Court, and consists of the President of the Sudanese Bar Association, a Supreme Court magistrate, an Appeal Court magistrate, a senior council from the Ministry of Justice and an advocate who worked in the field of advocacy for not less than fifteen years (The Advocacy Act 1983).

This shows that there are a lot of complications surroundings the procedures of legal aid administered by the Advocates Admission Committee, which are difficult for poor persons to have access to, for in distant states to reach, the thing that makes the work of this Committee of minimal value.

Position of women in Khartoum State

Khartoum state includes the capital of Sudan and holds a significant political and economic weight in the country. Geographically, it is located in the middle of the country, and inhabited by 5.274.00 persons (Central Bureau of Statistics, 2011). The population of Khartoum came from different tribes and areas of the Sudan. In the past few decades, Khartoum State has witnessed a strong migration movement because of the drought and wars that swept through the country. Naturally, the population's movement is accompanied by legal disputes concerning the rights and obligations of inhabitants, which requires an effective justice system to decide in these cases (22).

Women are an important factor in Khartoum State. The proportion of women is higher than men. Furthermore, the ratio of illiteracy is high among women accounting to about 26% of the total number of women in the State (Central Bureau of Statistics 2011).

With regard to economic indicators, there is no estimate to poverty level among women but there is a general indicator for all Sudan. The results of the family database survey, done in 2009, pointed out that the poverty rate in northern Sudan reached 46.5% (Central Bureau of Statistics, 2009). The manager of the Central Bureau of Statistics mentioned to Khartoum Newspaper that the lower rate of poverty was 26% in Khartoum State (Khartoum Newspaper 2006) (23).

Offences of violence against women are special type of violations. They increased in the last few years in Khartoum State and reached about 8.713 offence in the year 2009, which was 12,5% of the total number of offences of violence against women in the whole country (Ministry of Interior 2009).

The Annual Criminal Report tried to find a reason behind this high rate of offences, by stating that Khartoum State has the highest density of population in addition to religious, cultural and ethnic diversity and the behavioral variation in the State, plus the prevalence of negative phenomena such as the consumption of drugs and alcohol (Ministry of Interior 2009). These indicators show that women in Khartoum State need more special effort for obtaining the services of legal aid.

Legal aid suppliers

There are many suppliers of legal aid services to women in Khartoum State constitutes of three governmental bodies: General Administration of Legal Aid Office--Ministry of Justice, Women Centre for Human Rights and Protection of Family and Child Unit. (General Administration of Legal Aid Office). One non profitable company (Mutaawinat Charitable Company Limited) one private company limited by shares (24) and four nongovernmental organizations (Isnad International Centre Documents). There is no legal body to coordinate between the works of these suppliers and organize their efforts or to look for financial support of these bodies.

With regard to the experiences of other countries of similar circumstances to Sudan, South Africa seems to be a unique one. It amalgamated all legal aid supplies under organizational bodies called Justice Centres, which take the responsibility of managing legal aid under the control of a supervisory board called South African Legal Aid Board (David 2000). This kind of coordination is also found in other countries e.g. United Kingdom where legal aid is controlled by a commission called Legal Services Commission which works in partnership with advocates and other non-profitable bodies (John & Avis 2006). (25)

Legal aid supplied to women in 2009-2010

The proportion of legal aid service in Khartoum State is very low in comparison with the number of women in the State and their real need for legal aid. This may be clear by estimating the total number of legal aid services provided to women in Khartoum State during the period 2009-2010 in criminal and civil cases, and also in the area of legal advice.

a. Criminal cases

The total number of crimes committed by women in Khartoum State in the year 2009 was 41.858 while the crimes in which women were victims were 22095 in the same year, and the total number was 63.953 (Ministry of Interior 2010) (26). Unfortunately, the cases in which women found legal aid by way of counseling were not more than 842. (27). In the year 2010 the total number of crimes committed by women was 50.420 and the crimes in which women were victims were 26.593 and the total number was 77.003 crimes (Ministry of Interior, 2010) (28), while the cases in which women found legal aid by being represented by lawyers were about 398. (29) It worth mentioning that women in all these cases were not in need of legal aid, but there are indicators that in the year 2010 about 32484 accused women were indigents and without work to live on. (30)

b. Civil cases

In the area of civil cases, there is no fixed number of the cases in which women were parties. But the total number of civil cases in Khartoum State in the year 2009 was 51.357 (Central Bureau of Statistics 2009) (31). The cases in which women found legal aid by way of counseling were only 112 cases. (32)

c. Family law cases

As far as the family law cases were concerned, they were about 4.000 cases per year in Khartoum State (33), and the women were given legal aid by counseling in only 57 cases in the year 2009 and a similar number in the year 2010. (34) It is worth mentioning that the majority of the parties to family law cases were women because of the nature of the disputes in the area of personal matters which concern marriage, divorce, paternity, inheritance, etc. So it appears that the representation of women by way of legal aid in family law cases is so weak, in comparison with the real need of women.

d. Legal advices

The legal advices are procedurally simple. They do not cost money or take time in the same way as counseling. All the legal aid suppliers in Khartoum State provide the service of legal advice to the indigent women, but there is no accurate statistics to show the actual number of advices provided.

Some of legal aid suppliers use the mechanism of constant telephone, which is a useful device if it is used properly. But there are many difficulties facing this idea e.g. the ignorance of the indigent women of phones numbers. By some effort this idea may be so efficient if the different phones are connected with one central phone used as coordinator (35).

Geographical distribution of legal aid suppliers

There are seven municipalities in Khartoum State, two in Khartoum city, three in Omdurman city and two in Khartoum North city. Actually all headquarters of the legal aid bodies exist in one municipality which is Khartoum Municipality. There are some representatives of some units in Omdurman Prison. With exception to this fact one of the governmental bodies extended geographically and opened some branches in Omdurman and Khartoum North.

With regard to the justice units, there are 330 police stations and 21 judicial buildings in Khartoum State, but there is no office for legal aid in these buildings, neither for women nor for men. These facts indicate that the legal aid service is provided in a very narrow geographical strip which makes it a service to selected women who have the ability and the awareness to reach the legal aid offices. But the majority of the indigent women in the different parts of Khartoum State may have no access to these offices.

Finance of legal aid

Legal aid suppliers face a real problem of finance to run their activities. The nongovernmental units receive no governmental finance, and depend mainly on the participation of members. Most of the support they received from international organizations was for specific program of awareness raising by way of symposiums training sessions (Legal Aid Leaflet 2010).

The governmental suppliers receive governmental support within the office daily running costs. But there is no finance for the expenses of the lawyers, who cooperate with them to represent the indigent women before courts or to give them legal advices. So, the financial support to the direct legal aid of representing indigent women before the justice control units is quite insufficient, the thing that make the legal aid activities of voluntarily work and not a legal right.

By looking at the experience of other countries, it appears that the legal aid depends mainly upon the governmental finance. Lord Denning 1982, in his definition of legal aid said that it is a governmental style to support indigent people. In Canada the local governments cover the expenses of legal aid offices (Vera 1989). Also, many African countries cover the expenses of legal aid as in the case of South Africa (David and Mcquoid 2000)36. So for solving the problem of legal aid and developing its mechanism there must be a governmental obligation, to allocate certain budget to the legal aid system whether at the local or central government.

Qualifications of legal aid lawyers

There is no accurate statistics on legal aid lawyers, or their qualifications and training. Most of them work as volunteers except some cases in which they receive nominal fees. This makes the service of legal aid a matter of charity and not a right for indigent women. Naturally, this situation does not encourage the trained and experienced lawyers to provide their services within the legal aid system. At the same time the unsuitable payment of fees to lawyers results in nonseriousness of providing the legal service (37).

The role of law faculties

There are about nine faculties of law in Khartoum State, with considerable number of students, distributed in the different municipalities of the State. These faculties may play a leading role in the subject of legal aid to women in the State. As Reyntjens stated, "Students represent a cheap source of manpower, which in the presence of a proper supervision reach a standard at least equal to that of a young qualified lawyer. The well supervised use of law students will significantly ease the limitations under which most of the legal programs in Africa now have to work; it is only through students programs that there is any possibility in the near future for legal service becoming widely available to the poor." (Reyntjens in Zemans 1979, p. 36).

Unfortunately, there is only one legal aid clinic for students in the State the University of Khartoum providing legal aid services. It does not work to its full since it was established in the 1980s. It provides mainly legal advice to employees at the University campus. There are many difficulties faced this clinic which can be summarized as the lack of faculty support and financial support (38).

Role of paralegals

Many countries which lack the capability to cover the expenses of legal aid, adopted the idea of paralegals (39). The role of paralegals may be important especially in the rural areas where professional lawyers may not be available. Their rule may be influential in areas of family law, rent, labour and other simple disputes.

The idea of paralegals is recent in Sudan; it exists in a narrow frame confined to effort of some nongovernmental organizations who trained some members on legal skills in Omdurman. The effect of these paralegals is confined to solving disputes outside the courts (40).

Conclusion

To sum up there are many points deserve be highlighted. The first is that there is no official legal system for legal aid in Sudan, and all efforts of legal aid are scattered and voluntary efforts. In addition, the existing system faces a big problem of finance. These points demonstrate the need for a legislation that makes legal aid a right and not a charitable service.

The women in Khartoum State need special attention in the development of legal aid, as they are large part of population and are mostly unaware of their legal rights. Evermore they are subject to special type of offences which are violence against women.

There are much potential that may be useful in legal aid to women in Khartoum state, with some efforts, such as the legal clinics of law faculties and paralegals.

References

Central Bureau of Statistics, 2009. The statistical report (report).

Central Bureau of Statistics, 2009. Family database survey (report).

Central Bureau of Statistics, 2011. Economic and social indications of the country (report).

Central Bureau of Statistics, 2011. Rates of education in the country (report).

Criminal Procedure: Act, 1991. Insanity and unfitness to plead. Schedule 3: Minor and consequential amendments.

David, J., Mcquoid, M. 2000. The delivery of legal aid services in South Africa. Fordham International Journal, vol. 24, no. 6, pp. 97108.

Deng, S.1977. Sudan Law Journal 93.

Economic and social indications of the country, 2011(report).

The Ford Foundation annual report, 2000. Peace and social justice.

John, F. & Avis, W. 2006. What is wrong with legal aid? Civil Justice Quarterley, vol. 25, no. 80.

Khartoum Newspaper, 26 December 2006. Available at http: // smc.sd/news-details.html?rsnpid=30131. Accesses 5/01/2011.

Legal Aid (leaflet), 2010. University of Khartoum, Faculty of Law.

Legal Aid Act 1969. Available at http://www.legal-aid.co.za/ Accessed on 20/01/ 2011.

Lord, D. 1982. What next in the law, London. Quoted in Legal aid In India, http://www.legalserviceindia.com/article/1340-Legal-Aid-InIndia.html. Accessed 01/04/2012.

Ministry of Interior, 2009. The annual criminal report. (Report).

Ministry of Interior, 2010. The annual criminal report (report).

Reyntjens, J., in Zemans, F. 1979. Perspectives on legal aid. London: Printer.

Stapleton, A. 2007. Access to justice in Africa and beyond: Making the rule of law a reality. Northwestern University School of Law Chicago: Illinois.

The British encyclopedia Available at http://www.britannica.com/bps/search?query=legal+aid&blac klist=334839. Accessed 5/04/ 2012.

The civil procedures act, 1983.

The Ford Foundation, 2000. Many roads to justice: The law-related work of Ford Foundation guarantee around the world. Available at http:www.

books.google. com/books /about / Many_roads_to_justice.html?i d. Accessed on 05/01 2011.

The Labour Code, 1997. National laws on labour, social security and related human rights.

The social security act, 1999.

United Nations office on drugs and crimes, 2011. Access to legal aid in criminal justice in Africa. The United Nations (report).

Varun, P. A brief history of legal aid. Available at

http://www.legalserviceindia.com/articles/laid.htm. Accessed 05/04/ 2012.

Vera, C. 1989. The development of legal aid and legal clinics in Canada. Transactions of the institute of British geographers, vol. 4, no. 3.

Abuzer Elgifari Bashir Abd Elhabeeb (1)

Endnotes

(1.) The researcher would like to thank Nasreldeen Abdelbari, Mohammed Abdelsala Babikir and Junnifer Ism for their valuable suggestions.

(2.) Art. 34 (3).

(3.) It is inhabited by 5.274.00 persons according to the Central Bureau of Statistics, 2011.

(4.) Legal aid is defined in the British encyclopedia as "the professional legal assistance given, either at no charge or for a nominal sum, to indigent persons in need of such help". Varun defined it as ''giving free legal services to the poor and needy who cannot afford the services of a lawyer for the conduct of a case or a legal proceeding in any court, tribunal or before an authority".

Lord gave it the following definition "a system of government funding for those who cannot afford to pay for advice, assistance and representation".

(5.) Art. 34(6).

(6.) There is a bill of Legal Aid Act prepared by UNAMIS and UNDP in cooperation with many Sudanese lawyers and nongovernmental corporations, but not yet adopted officially by the State.

(7.) Many African countries issued legislations for legal aid e.g. South Africa in which the legal aid is organized by Legal Aid Act 1969.

(8.) Supra. Note 5

(9.) Supra, note 6.

(10.) The Supreme Court held that the right of the accused to have the assistance of a lawyer is not obligatory. It is optional if it is required by the accused who is able to pay his costs, or if he is insolvent then the Attorney General ought to arrange a judicial aid for him. S. G. v. Deng Shawl, SLJR. (1977) 93. This view was assured in many other cases e. g. the case No. SC/ CC/1959, SLJR (1995) 40.

(11.) S. G. v. Deng Shawl, SLJR (1977) 93

(12.) See S. 39 of Advocacy a.ct 1983 and S. 135 (3) of the Crinimal Procedures Act 1991

(13.) See chapter four of the criminal procedures Act 1991

(14.) See S. 9 of the Six Schedule of the civil procedures Act 1983.

(15.) The civil procedures Act 1983. s 39, provides that "Court fees shall be paid within one day from the date on which payment is ordered, otherwise the plaint shall be dismissed".

(16.) The civil procedures Act 1983. Sixth Order.

(17.) The civil procedures Act 1983 . S. 9.

(18.) Id. S. 14 (2).

(19.) Id. S. 15 (2).

(20.) Supra Note 18

(21.) The advocacy act 1983. S. 39

(22.) In the years 2009 and 2010 Khartoum State has witnessed the highest rate of women crimes, which is more than 51 % of the total women crimes in Sudan, as Khartoum State is the centre of population weight in Sudan, Supra Note 3

(23.) He said that the poor is the person who is unable to pay 148 S DG for living per month. Khartoum Newspaper. 26 December 2006.

(24.) Place legal aid company limited.

(25.) The legal services commission is a governmental body responsible to coordinate and supervise the works of suppliers of legal aid in England and Wales. See John, F. & Avis, W., 2006.

(26.) Ministry of interior, supra, note 35 at 150.

(27.) Supra. Note 9

(28.) Ministry of interior, 2010. The Annual Criminal Report.(report) at 152.

(29.) Supra. note 9.

(30.) Supra note 45 at 154.

(31.) Central bureau of statistics 2009. The Statistical Report (report) 349.

(32.) Supra. Note 9.

(33.) Supra, Note 34.

(34.) Supra Note 48.

(35.) Supra, Note 9 at 45.

(36.) David. Supra. Note 27. At 117.

(37.) Supra Note 9 at 47.

(38.) Supra, Note 9 at 48.

(39.) Paralegals are non-lawyers trained to give legal advice, and prepare the plaints in simple disputes. See The Ford Foundation, 2000,

(40.) Supra Note 9 at 50.

Note on contributor

Abuzer Elgifari Bashir Abd Elhabeeb is an assistant professor of Law, University of Khartoum.
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