THE DRAFT LEGAL AID POLICY, THE PARALEGAL CONCEPT AND THE ROLE OF LAZ

Presented by Mr Anderson NgulubeDirector of Legal Aid Board, Zambia

5th Law Association of Zambia Annual Law Conference, April 15 2016

Introduction

Zambia’s Sixth National Development Plan (SNDP) and the Revised Sixth

National Development Plan (RSNDP) were the overall planning framework for

the period 2011 to 2016. Governance was not a stand-alone feature of the plans.

It featured as a cross-cutting issue and yet it was reflected as the “the

cornerstone for prudent management of development outcomes to benefit all

people of Zambia”. The focus for the period was on human and infrastructure

development for governance institutions to enhance their delivery capacity.

Access to Justice

Access to justice through legal aid in Zambia has taken place through a limited

policy and legal framework that covers the Legal Aid Board but is silent on

CSOs and CBOs. There is no policy and legal framework to guide the provision

of legal aid services by CSOs and CBOs. They provide the services in an ad hoc

and unregulated manner.

Access to justice was one of the priority areas for the Government under the

Governance Chapter in the Fifth National Development Plan (FNDP) which

covered the period 2006 to 2010. The FNDP identified policy and programme

co-ordination in the justice sector as critical but weak. The diversity of agencies

with a ‘governance’ mandate, the limited tradition for institutions to work at

cross-institutional level, and human resource capacity shortages contributed to

this situation. Weaknesses were found at institutional levels, individual

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institutions had capacity constraints in planning and implementation, cross-

institutional co-ordination was very limited and budgetary and legislative

follow-up on national plans and reforms rarely happened. (x)

Access to justice as a concept can be defined as the right of individuals and

groups to obtain a quick, effective and fair response to protect their rights,

prevent or solve disputes and control the abuse of power, through a transparent

and efficient process, in which mechanisms are available, affordable and

accountable (x).

Implicit in this definition are challenges and substantive prerequisites which can

be broken into three main headings (x)

Substantive legal and rights framework

The establishment and/or existence of an adequate and appropriate

national legal framework which guarantees citizens certain rights, as

represented by both domestic and international legal documents should be

in place. This includes the constitution, legislation and regulations.

Zambia’s constitution secures access to justice in principle. However, the

need for reform in certain judicial areas such as legislation providing for

transparency, accountability and principles of justice in relation to the

exercise of public authority means that there is still some way to go in

terms of meeting the principles of the constitution.

Institutions, human resources and infrastructure

It is a prerequisite to ensure the necessary physical supply and existence

of justice institutions, including human resources, infrastructure and the

practical functioning of such institutions, to effectively uphold guaranteed

rights. The existing institutions must have the ability to carry out their

mandate and tasks.

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Knowledge and attitudes

The third prerequisite relates to knowledge of and attitudes towards rights

and laws. This includes increasing knowledge and understanding of

existing legal rights and relevant justice institutions. There is the need to

build the concomitant cultural attitude underpinning the demand for

rights.

No right is as fundamental as the capability to access the legal system that

accords beneficiaries of the rule of law the protection of one’s rights against

citizens of the same standing and even against the most powerful. Rights require

to be asserted or protected in a justice system that secures remedies for the

aggrieved persons. Rights are meaningless if the justice system cannot be

accessed. Rights are equally meaningless if the justice system fails to provide a

fair and just hearing, and outcome.

Access to justice through legal aid secures a voice for the weakest members of

society. Equality before the law is meaningless if access to and availability of

means for formal access to the justice system; knowledge of legal rights and

obligations; the ability to claim the rights; and effectively represent one’s

interests regarding the obligations are lacking. Where there is no effective legal

aid system the indigent and vulnerable persons are denied the right to enforce

their rights. Equal access to justice should be regarded as essential to economic

development and maintenance of social harmony.

Obstacles to Access to Justice

Lack of legal awareness, education and information about availability of

legal remedies and protections

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Perceptions that justice institutions are slow with processes that are

intimidating and complex

Geographic isolation

Social and economic inadequacies

An apparent justice gap

The uncomfortable reality of life is that there are gaps in society such as

achievement gaps, income gaps, transportation gaps, infrastructure and

technology gaps, a political gap. The absence of concerted efforts by the State

and other players to make access to justice a reality will transform the apparent

justice gap into a real gap.

The scope of the legal profession’s legal aid work remains limited as

there is no specific framework supporting the provision of legal aid by

legal practitioners in private practice.

In terms of legal practice, the Legal Practitioners Act applies strict

requirements and conditions, which pose additional challenges to

effective provision of legal aid services

Paralegals

In 1998 we trained the first group of paralegals using a systematic approach in

the delivery of lectures and resource materials. The late Professor Alfred

Chanda was among the group of the trainers. Prior to 1998 there were CSOs

that were providing legal services to the public through paralegals who had no

formal training in law or law related endeavours. Notable among the CSOs was

the Zambia Civic Education Association which was started and run by the late

Ms Lucy Sichone. The other organisation is the Legal Resources Foundation

which was founded by Mr Robert Simeza, SC and Mr John Sangwa, SC. We

have had paralegals in Zambia for over 20 years. There are paralegals in

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Malawi, Mozambique, Zimbabwe, Namibia, Botswana, Swaziland, United

States of America, and Canada.

The paralegals have not been formally recognised, their training has been ad

hoc and the provision of legal services has been unregulated.

What is a paralegal? Paralegals are not lawyers. Paralegals are like

paramedics. They typically work on law matters by way of assisting. The day to

day work of paralegals depends on the type of law firm they are in or

department or organisation and may include work on:

Commercial property

Investment

Construction

Contract management

Regulatory compliance

Tax

Road traffic offences

Insurance claims

Landlord and tenant disputes

Employment law

The American Bar Association has a definition which has several parts:

qualified by education, training, work experience; retained by a lawyer, law

office, corporation (bank, insurance firm, etc), government, other organisation

such as trade union, NGO; performs specifically delegated substantive legal

work.

In some jurisdictions paralegals represent clients in small claims courts, traffic

courts, tribunals, ADR fora.

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Paralegal Tasks – Paralegal tasks include:

gathering and organising factual information;

drafting legal documents;

conduct legal research;

assist at hearings and trials

oversee scheduling (deadlines for depositions, etc)

communicate with clients and others

UPL – Unauthorised Practice of Law – What a paralegal may not do:

provide legal services directly to the public without lawyer supervision;

give legal advice;

represent a client in court, tribunal unless allowed by law;

set a fee or accept a case.

What a paralegal may do. Everything else if:

task is delegated

lawyer supervision

Legal Services for the Indigent and Paralegals. Legal services for the poor

include legal advice, counselling, and representation in court. Legal services can

be expansively defined to include mediation, representation before non-judicial

fora, assistance with the legal aspects of administrative processes, assistance

provided by non-advocates and non-lawyers trained to acquire legal knowledge

and skills (paralegals), and even non-formal legal education.

Legal aid refers to legal consultation or representation provided to financially

needy clients at no charge, or nominal fees.

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Ethical Responsibilities for Paralegals

The ethical responsibilities for paralegals are the same as lawyers. Ethical

responsibility is all about a paralegal knowing his/her limitations.

Confidentiality – this is the heart of the law office. Confidences and

secrets of the client must be kept

Honesty in dealing with others – these include courts, lawyers, paralegals,

clients

Conflict of interest – loyalty at all times to the client

Malpractice – carelessness by a paralegal. Pay attention to detail, ask

questions, use systems > filing > communications >records of deadlines

etc

Investing in a Paralegal Career – Investment is a long term objective and it

must be looked at in terms 2 years from now, 5 years from now and 10 years

from now. There is need for certainty in terms of the area of operation, job

opportunities, and organisational frameworks supported by policy and law.

Policy and law are the two anchor points that we need to move the agenda for

paralegals forward.

The bigger picture into which paralegals fit is the ever present need to carte for

the legal needs of about 80% of the Zambian population (10,200,000 people).

The ways by which a person can invest in a paralegal career include being a

member of an association, doing pro bono work, and pursuing continuing

education.

Being a member of an association is invaluable. It will provide opportunities to

meet with other paralegals, to link with lawyers and law firms, law bodies such

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Law Association of Zambia, Legal Aid Board, National Prosecution Authority,

Zambia Law Development Commission. There will also be an opportunity to

link with training institutions such as the University of Zambia, National

Institute of Public Administration, Zambia Institute of Advanced Legal

Education and others.

Doing pro bono work tends to focus on others but it also gives an opportunity to

get experience in an area of law that one normally does not typically work in –

that is an investment and you give back to the community.

We all need to grow personally and professionally. A pursuit of continuing

education ensures the needed growth is attained. There is no greater asset than

to be updated in the trends and the laws, and the rules in your practice area.

Paralegals Beware (paralegalgateway.com) – There are con artists that will

pop up and after a season or two leave in their path destruction as they

disappear or undergo metamorphosis. In the US there are businesses structured

as not-for-profit organisations that are nothing more than a scheme to make

money off the backs of paralegals. The truth of the matter is that there is money

to be made. There are many legal service companies that have huge bottom

lines each year. Some companies are legitimate and others are not. In these

companies and law firms more and more paralegals are being used as

gatekeepers.

Point one – as stakeholders we need to be aware of this potential danger

and provide for dealing with it.

Point two – paralegals must know about this potential danger and not be

caught up with organisations that are only there to take and make

illegitimate gains off the backs of unsuspecting paralegals.

Some signs to look out for include:

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People running the organisation have questionable backgrounds

or status (bankrupts)

Running the business from non-descript locations (we have

street estate agents)

Board of trustees who do not exist

More and more organisations popping up

Not registered as required by law, or linked to any organisation

or association (LAZ etc)

Paralegal certification – should this be voluntary or mandatory? Certification

entails that a paralegal has reached a certain level of competency in the

profession. For paralegals who will desire to work in law firms and

organisations that do court work (such as Legal Resources Foundation)

certification must be mandatory. Certification must be voluntary for paralegals

in government ministries and institutions such as Legal Aid Board, National

Prosecution Authority, and in this instance there will be an effective exemption

as is the case with lawyers. Should it be deemed necessary other groups or

individuals can be included on the exempt list.

In the United States of America paralegal certification is generally not required

by some law firms, but is required for most legal positions. Professional

certification is most sought after by employers. There is what is called the

Paralegal Advanced Competency Examination (PACE exam). The PACE exam

is administered by the National Association of Legal Assistants (NALA) and

the National Federation of Paralegal Associations (NFPA).

There are three education requirements for the PACE exam:

Associate’s Degree in paralegal studies and 6 years of relevant experience

Bachelor’s Degree of any study and 3 years of relevant experience

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Experience only, 4 years (verified substantive paralegal experience)

Convicted felons cannot be allowed to be accredited even if they meet the

education requirements.

With the passage of time it will be important that people graduate from an

education institution that will be highly recommended by employers in the legal

community. The American Bar Association has approved a number of

programmes offered by numerous education institutions. The Law Association

of Zambia will need to go on a similar path and it will be wisdom for students to

choose institutions with approved programmes.

Paralegal Association or Law Association? – In the US paralegals have local

paralegal associations and two national associations. In Canada in Ontario the

paralegals are part of the Law Society.

Deployment of Paralegals

In the US Army: justice is just as important in the military legal system as it is

in civilian courts. Specialised paralegals are essential in the military. Sensitive

and confidential information is the order of the day and as such a secret

clearance qualification by the system is imperative before undertaking any

paralegal training and work in the military. Once engaged the paralegals:

Prepare legal documents

Participate in pre-trial investigations and processing

Prepare records of courts martial

Prosecutor’s assistant

Setting up court rooms for trial

Notify witnesses of pending cases

Work for military defence counsel, interview witnesses, review charges

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Assigned to a brigade legal team or divisional legal office

Some paralegals who excel later become court reporters, assist military

families with such matters as wills, powers of attorney, or transition to

the civilian employment sector.

Paralegals at the Office of District Attorney – 100 paralegals work at the San

Diego District Attorney – California. The paralegals:

make sure witnesses arrive on time for trial (witness co-ordination; make

sure witnesses are available and testify when required to do so)

preparation of cases; ensure finger print reports are in place, DNA reports

are in place, photos, etc

case management; audio/visual evidence is available, witness co-ordination,

filling necessary documents, tracking court dates and appearances,

communicating with lawyers and law firms.

The paralegals, wherever they serve, they make a significant contribution to the

rule of law and justice.

Paralegal Training

The Zambia Institute of Advanced Legal Training is now offering a course in

paralegal training.

Emory University offers programmes for paralegals.

Humber College offers a 4 year degree program in paralegal studies (Bachelor

of Applied Arts – Paralegal Studies). The graduates are eligible to be licensed

and practice in small claims courts, arbitration, tribunals. They are prepared for

law school if the desire to pursue their career further.

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Centennial College (centennialcollege.ca/business) offers a paralegal

programme which is a one year post-graduate certificate programme. One needs

to have a university degree or a college diploma. The paralegal programme is

regulated by the Law Society of Upper Canada and at the Law Society there is a

requirement of placement of a minimum of 120 hours (but at Centennial they do

a 200 hour placement programme). After the programme graduates need to pass

the licensing examination and thereafter it is ‘all systems go’.

Atlanta Paralegal Service…

American Institute for Paralegal Studies…

The point of emphasis is that tertiary institutions of learning in Zambia must

consider offering programmes in paralegal studies.

Draft Legal Aid Policy

By way of background, the draft National Legal Aid Policy (NLAP) marked the

culmination of a process of contributions and consultation with various

stakeholders that the Legal Aid Board engaged between 2009 and 2013. In 2012

a Committee of 15 members was set up by the Minister of Justice following a

request by the Legal Aid Board for the development of a national legal aid

policy.

The draft NLAP document is a 53 paged document. It is currently with the

Ministry of Justice being worked on by the Department of Legislative Drafting.

In due course it will be submitted to Cabinet for approval and thereafter a host

of legislative activities will follow. The landscape of legal aid will drastically

change in some instances. In other instances legal service activities that are

currently taking place but not formally and legally recognised will be

specifically covered by legislation. These legal activities will be given due

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recognition and the necessary regulation to protect the public and ensure quality

legal services.

Legal aid services in Zambia have for a long time been provided by both State

and non-State actors in an environment that lacks a comprehensive policy on

legal aid. There are two major constraints namely inadequate financial resources

and a limping resource capacity.

The policy framework, the legal framework and the institutional framework are

in need of serious and urgent attention. An improvement in these areas will

facilitate the achievement of the Government’s objective under any thematic

area which covers good governance. Government desires to achieve efficiency

and effectiveness of the justice system and improved access to justice

institutions by all, including the poor and vulnerable groups.

Policy guidelines for legal aid designed to contribute to legal empowerment of

the indigent persons and vulnerable groups through effective access to justice

are now outlined in this policy document. The policy sets out guidelines for the

scope and delivery models for the provision of legal aid in Zambia and outlines

the framework for reviewing the required follow-up action in the

implementation process by the Legal Aid Board and other stakeholders and for

monitoring process and evaluating the implementation of different policy

measures set out in the policy.

The current legal aid legislative framework provides for a restricted scope of

legal aid. The policy sets out a co-ordinated institutional and legal framework

that adopts a broader definition of legal aid and recognises the various

stakeholders identified as cardinal in the effective and efficient provision of

legal aid services.

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The policy endeavours to provide for a broad-based legal aid system that will

achieve societal benefits including the elimination of unnecessary detention,

speedy processing of cases, fair and impartial trials and dispute resolution, the

reduction of prison populations, the lowering of appeal rates, and the

advancement of social and economic rights.

The policy seeks to ensure access to justice under the framework of the right to

an effective remedy by adopting an inclusive and diversified approach to the

delivery of quality legal aid so as to give a voice to the voiceless and powerless

through the following:

defining the scope of legal aid;

outlining the application process;

setting out an objective eligibility criteria for legal aid;

defining legal aid delivery models;

classifying legal aid service providers;

restructuring the legal aid scheme institutional framework;

promoting coordination and cooperation mechanisms;

setting out a quality assurance framework;

ensuring legal aid resource mobilisation and financing;

re-aligning the legislative framework;

safeguarding the monitoring and evaluation system of policy

implementation; and

determining the communication and dissemination strategy of policy.

In terms of legal aid service delivery models the policy is based on a mixed

delivery system where the following legal aid delivery models are utilised to

best suit the beneficiaries’ needs and the available human capacity and material

resources at legal aid provider’s level:

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staff attorney model through LAB national office, provincial LAB

centres, and district LAB centres;

legal service units at court level;

prison and police station legal desks;

judicare model;

pro bono model;

clinic based model;

outreach model;

paralegal model.

In terms of categories of legal aid providers, accreditation scheme and

directory the policy recognises at the institutional level as there being three

legal aid service providers namely Legal Aid Board, Law Association of

Zambia, and LASPs. An accreditation scheme for legal aid providers will be set

up for CSOs, CBOs and university law clinics desiring to provide legal aid. A

directory of accredited LASPs will be established and maintained by the Legal

Aid Board.

The policy has a quality assurance framework. The policy aims at the

provision of quality legal aid services. To this end the policy seeks to establish a

number of quality assurance mechanisms so as to ensure competence and

accountability of legal practitioners, legal aid assistants, law students and

paralegals.

Legal Aid Board – Strategic Plan

The Legal Aid Board Strategic Plan is for the period 2013 – 2017. The strategic

plan identified the lack of a national policy on legal aid as a strategic issue that

required immediate attention. In consultation with stakeholders the Legal Aid

Board worked on a draft national legal aid policy.

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The strategic plan identified the core mandate of the Legal Aid Board as being

the provision of legal aid services in criminal and civil matters to persons

whose means are inadequate to engage legal practitioners to represent

them. In a bid to fulfil the mandate the Board has expanded its area of coverage

to include a focus on criminal litigation in the subordinate courts where the bulk

of the criminal litigation takes place. The Board is now serving clients in the

subordinate courts in Siavonga, Chirundu, Sinazeze-Sinanazongwe, Choma,

Namwala, Monze, Mazabuka, Kafue, Lusaka, Mumbwa, Itehzi Tehzi, Mongu,

Kaoma, Lukulu, Kalabo, Senanga, Shang’ombo, Chisamba, Chongwe,

Luangwa, Kabwe, Chinsali, Nakonde, Isoka, and Mpika. We have one hundred

percent coverage for Lusaka Province and Muchinga Province. By the end of

the year (2016) we shall have one hundred percent coverage for Southern

Province, Western Province, and Central Province. That coverage will translate

into a total coverage of fifty percent coverage of Zambia. In 2017 and 2018 we

intend to cover the remaining five provinces.

The plan also has a provision on the inclusion of paralegals on the Board staff

establishment and use of paralegals as gate keepers. This has not yet been

implemented due to financial and other constraints.

Role of Other Legal Aid Service Providers (LASPs)

Civil Society Organisations (CSOs), Community Based Organisations (CBOs),

Faith Based Organisations (FBOs) and the network of paralegals providing legal

aid services currently operate in an environment where their work and the

contributions to justice delivery are not formally recognised. They have become

essential gate keepers who are helping to resolve matters away from the courts

and preparing cases that require litigation for referral to the legal Aid Board,

Legal Aid Clinic for Women and others. The sifting role of matters destined for

the courts can also be provided by law clinics located at educational institutions

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or through the provision of mobile community clinics. None of the universities

in the country host law clinics.

A number of challenges impact on the effectiveness and efficiency of the

LASPs such as inadequate financial resources, dependence on donor funding,

limited capacity, high staff attrition, poor document cataloguing relating to both

finances and activities and limited monitoring and evaluation. Most of these

legal aid service providers are issue or theme based focusing on specific

mandates such as child abuse, gender-based violence, widows and orphans, or

remandees. Thus the vast majority of ordinary people still remain without

access to legal aid or to the courts. Legal advice and assistance in police stations

and prisons are largely absent. Legal education and information is not provided

in a structured way to the communities.

LAZ and Paralegals

In working out the role of LAZ in the profession of paralegals we can look at an

example of the Law Society of Upper Canada.

On 1st May, 2007 the Law Society of Upper Canada became responsible for

regulating the paralegal profession as a result of amendments to the Law Society

Act.

The regulatory framework for the profession was successfully established by the

13-member Paralegal Standing Committee, which is made up of five

paralegals and eight members of the Law Society’s governing board, known as

Convocation. Five paralegals were elected to the Committee in a province-wide

election in March 2010.

The Committee initiated and instituted the Paralegal Rules of Conduct, as well

as a set of criteria and an application process for paralegals already in practice,

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and for students already studying legal services. The Law Society issued the

first paralegal licences in early2008 to approved applicants who passed the

licensing examination.

Anyone in Ontario providing legal services requires a licence, unless the group

or individual is not captured by the Law Society Act or is exempt by a Law

Society by-law. The Law Society Act enables the Law Society to make

exemptions through by-laws.

Legislation passed by the Government of Ontario, (primarily the Law Society

Act and Regulations made under the Act) authorise the Law Society to educate

and license Ontario’s paralegals and regulate their conduct.

Law Society by-laws and Paralegal Rules of Conduct – both based on the Law

Society Act – set out professional and ethical obligations. Paralegals failing to

meet these obligations are subject to the Society’s complaints and discipline

process.

The Law Society governs legal service providers in the public interest by

ensuring that the people of Ontario are served by lawyers and paralegals who

meet high standards of learning, competence and professional conduct.

They have a list of twenty groups or individuals who do not require a licence (5

not captured by the Law Society Act and 15 exempt by a by-law).

Paralegals who provide legal services to the public must carry professional

liability insurance. It is the position of the Law Society that persons providing

legal services must carry insurance; however, the Law Society’s professional

liability insurance program coverage for lawyers covers the professional

services of both the lawyer and the persons that the lawyer supervises.

Source: www.lsuc.on.ca

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* The Law Society of Upper Canada, the largest of all Canadian law societies,

was founded in 1797. Its main function was to ensure that all persons who

practice law in Ontario were competent, followed proper procedures and

behaved ethically. Until 1957 it controlled entry to the Ontario legal profession

through its exclusive jurisdiction over legal education.

Conclusion and Recommendations

1. Paralegals are an essential feature of the legal system and legal profession

2. Areas of practice for paralegals must be identified, that includes fora and

audience issues

3. The draft national legal aid policy must be adopted by government

4. Legislative enactments and amendments to the relevant existing

legislation must be undertaken

5. The Law Association of Zambia must resolve to embrace the paralegal

profession, register and regulate all paralegals, identify exempt

paralegals, set up a Standing Paralegal Committee, and come up with

Paralegal Rules of Conduct

6. Formal training programmes for paralegals must be carefully designed for

relevance and depth

7. A licensing mechanism and appropriate examination must be put in place

which will be administered by an institute set up for the purpose or as an

extension to an already existing institution.

8. Continuous professional development must not only be encouraged but

also undertaken consistently

/

**

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