An Introduction to Zimbabwean Law

8. Legal Aid

LEGAL AID 127 Introduction Legal aid refers to the system of providing legal services to persons who are unable to afford to pay fees for such services. This arises in a world in which the cost of legal services is, without exception, very high. Whether or not the state should provide legal aid is a controversial issue. It raises key political questions such as whether or not the state has any obligation towards the poor. Today, legal aid is almost universally regarded as an aspect of access to justice. In the words of Gail Kuppan: Its object is to make it impossible for any person to be denied the equal protection of the law simply on account of poverty. It is an essential part of the administration of justice of any democratic state and is internationally recognized as such.1 This approach suggests that there exists a right to the provision of legal aid in the corpus of civil and political rights. It is submitted that this is indeed the case. The right to legal aid is implied in the very notion of the universally accepted and fundamental right of equality before the law. As such, it requires no more justification than that applicable to all human rights: self-evident rights that must be enjoyed by human beings by virtue of being human. The proper administration of justice requires, as a basic minimum, that access to justice be not unduly restricted by the lack of resources to pay legal fees. In other words, the legal system must not condemn poor people to injustice by the mere device of making legal services 8 Legal Aid LEGAL AID 128 unaffordable. It is therefore essential for the state to provide some form of legal aid. The system of legal aid in Zimbabwe is poorly developed. Before the enactment of the Legal Aid Act, 1996, there were two categories of legal aid worth considering, namely, (1) Civil Court legal aid and (2) Criminal Court legal aid.2 This may be described as the old system of legal aid. The Old System of Legal Aid Civil Court Legal Aid In both the Magistrates Court and High Court there existed a system for the assistance of indigent persons. In the Magistrates Court, the system was known as the pro deo system and was governed by the Magistrates Court (Civil) Rules, 1980, Order 5. In terms of Order 5, a person desiring to sue or defend as a ‘pauper’ could apply to court for legal aid. The court had to be satisfied that (i) the applicant had a prima facie right of action or defence and (ii) the applicant had no means sufficient to pay the court fees and messenger’s charges. Only then could the court order that a lawyer be appointed to act for the applicant. The requirement that the court be satisfied that the applicant had no means to pay court fees and messenger ’s charges meant that only the very poor qualified for this assistance. Further, the court was not obliged to order the appointment of a lawyer – it could instead simply order that the pleading be served free of charge. In the High Court, the system was called the informa pauperis system. It was governed by the High Court Rules, 1971, Order 44. In terms of Order 44, a person wishing to bring or defend proceedings in forma pauperis could apply to the Registrar if he/she was a person whose assets were less than a specified amount, excluding household possessions. If the Registrar was satisfied that the applicant prima facie qualified, he/she was required to nominate a legal practitioner to whom to refer the applicant. The legal practitioner had also to satisfy himself/herself that the matter was one in which he/she could act in forma pauperis. In other words, the legal practitioner was required to investigate the applicant’s means. Once the legal practitioner was satisfied, he/she had to act on behalf of the applicant. Criminal Court Legal Aid The Constitution of Zimbabwe does not enshrine a right to legal aid for accused persons. On the contrary, it provides in Section 18 (3) (d) that: LEGAL AID 129 ‘Every person who is charged with a criminal offence shall be permitted to defend himself in person or, save in proceedings before a local court, at his own...