LASPNET held the 2nd national legal aid conference in June 2014, in which it was revealed that Government will modify the Constitution (amendment) Act 2005. The participants identified a need for constitutional provisions to ensure that every person receives legal advice and assistance, as well as court representation - where the interests of justice so require.
In Uganda, the above “interests of justice” test is only restricted to capital offences and cases attracting life sentences. However this is considered to be unduly restrictive. The LASPs recommend that legal advice and assistance should be given to all the poor, marginalised and vulnerable persons. It is then reasonable to restrict legal representation to criminal cases where the interests of justice are satisfied and in civil proceedings where the matter is serious, complex and there is a very likely prospect of success.
According to the Draft National Legal Aid Policy, it is acknowledged that the context in Uganda requires a realistic balance between what the State can provide and what it must provide. It suggests that where, for instance, the indigent person cannot understand the court proceedings or present their case and is a child in need of protection, woman in vulnerable circumstances, immigrant, refugee, asylum-seeker, an internally displaced person, suspect in criminal proceedings, prisoner, aged, person with a serious health condition (including HIV/AIDS), or who is mentally fragile, or physically disabled, or an unskilled labourer, the interests of justice are satisfied.
The draft Policy further argues that where the person – is likely to lose their liberty or their livelihood; or is a victim of a crime; or is a party to a case involving a substantial question of law; or is a party to proceedings which may involve the tracing, interviewing or expert cross-examination of witnesses; or is a party to a case in which the court is of the opinion that such a person cannot have a fair trial unless he or she is represented; then again, the interests of justice require him or her to receive legal representation.
In view of the above, LASPNET supports the proposal for establishment of a national legal aid body and cooperation partnerships with non-state actors to ensure that every needy person in Uganda has access to legal advice and assistance as well as legal representation when this is required. Such an arrangement can provide measures for avoiding complex judicial procedures and support the people in vulnerable circumstances to promptly access justice.
Therefore the following amendments are proposed with reference to Article 28 of the Constitution:
In addition, other new sections are proposed to be included under Article 28 as follows: