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Legal Aid and Access to Justice in The ‘New Gambia’: A Case for Strengthening the Implementation of the Legal Aid Act

By Christopher F Gray, a student on the MSc Socio-legal Studies programme at the University of Bristol, UK. He previously held a visiting lectureship at the Faculty of Law, University of The Gambia where he oversaw the University of The Gambia Law Clinic. He will begin his doctoral research in 2018 in international human rights law and criminal justice.

Abstract

With the ‘New Gambia’ comes an opportunity for change and reform to strengthen democracy and human rights in the country. This paper seeks to contribute to discussions around how best to improve the situation for the population, arguing for improving access to justice and the right to legal aid, as a priority of the new government, to create more effective protection of legal rights in criminal and civil matters. Aware of other competing causes, a case will be made for investment in this area based on the economic benefits, the better protection of rights and freedoms, and improving the Gambian legal system and strengthening the rule of law in the country.

The paper will then consider the existing legal framework, considering the need for reform in this area. It will argue that the rights of individuals to legal aid found in the Legal Aid Act are wide in scope and have the potential to meet with international standards. However, upon examining the implementation of the Act, several shortcomings can be found. The Act, as it stands, is incomplete in its enactment, and the National Agency for Legal Aid (responsible for providing legal aid under the Act) is without sufficient resource to properly comply with its mandate. The paper will then consider how the implementation of the Legal Aid Act could be strengthened, considering how the new government could improve the capacity of the National Agency for Legal Aid, but additionally the role which the broader legal community could play in supporting its mandate. By reconsidering how the responsibility for legal aid provision is dispersed among different actors in the sector, this paper hopes to show that a legal system which works better for all Gambians can be achieved without substantive reform.

Introduction

Since the change of government in The Gambia in 2016, the legal and human rights communities in the country have been engaged in a wide range of discussions about how best to strengthen the legal system in its protection of human rights and civil liberties of the Gambian population. Many existing laws and institutions are being considered for creation or reform, as part of the transition from 22 years under Yahya Jammeh. This paper will focus on appraising the Legal Aid Act of 2008 (LAA), and the work of its implementing body, the National Agency for Legal Aid (NALA), considering in a broad sense the role which both could play in the legal system of the ‘New Gambia’.

In an interview with The Point newspaper in December 2017, Mr Charles Thomas, the acting executive secretary of NALA, noted the achievements of the agency since its creation, but concluded a need for review of the LAA by the new government.[1] This paper will seek to develop this discussion, building a case for wide access to legal aid and strengthening its role in the legal system. Aware of the financial investment which this implies, the argument will seek to justify this from both a pragmatic and economic perspective, as well as with a view to strengthening the rule of law and human rights.

Having established the case for improving access to justice and legal aid, the paper will then consider the legal framework. It will conclude that the LAA is a strong piece of legislation which has been failed by its implementation. It has great potential for comprehensive and effective provision of legal aid, both in the population to whom it is applicable, and in the services offered, but has struggled with financial and human resource problems. The paper will end by considering how these problems could be remedied by investment and better engagement by the legal community, both in and outside the framework of the act itself. While legal aid is an essential part of achieving better access to justice in The Gambia, the responsibility falls on every member of the legal community, be they students, lawyers, judges, or civil society, to make the Gambian legal system one which works better for all the citizens of The Gambia.

Legal Aid

Legal aid is defined in the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems (‘the UN Principles’) as:

includ[ing] legal advice, assistance and representation for persons detained, arrested or imprisoned, suspected or accused of, or charged with a criminal offence and for victims and witnesses in the criminal justice process that is provided at no cost for those without sufficient means or when the interests of justice so require. Furthermore, “legal aid” is intended to include the concepts of legal education, access to legal information and other services provided for persons through alternative dispute resolution mechanisms and restorative justice processes.[2]

This is an expansive definition, making ‘legal aid’ an umbrella term that could include many different types of intervention to assist individuals in the legal system. Some interventions can be more simplistic, in the form of legal advice for defendants, but some may require comprehensive and time-consuming activity, for example full representation in a criminal trial. It may incorporate activities by several different actors, not simply lawyers, but also government departments in the education and dissemination of information to a population about the legal mechanisms available to them.

The definition in the UN Principles is illustrative of the breadth of measures coming under the scope of ‘legal aid’, however it is limited in its application to criminal defendants only. It must be considered that legal aid can be applied not only in the criminal justice system, but to individuals in civil proceedings also. While the stakes for individuals participating in civil proceedings tend to be material interests, rather than personal liberty, legal aid can facilitate meaningful engagement with the justice system, which in many cases is the only way to effectively exercise their legal rights.

Benefits of Legal Aid Provision

The provision of legal aid by the State inevitably requires a great amount of allocated resource. The wide array of interventions shown above require staffing and integration into justice systems (including increasing awareness of services available), which must often be covered entirely by public money. The payment of legal aid lawyers for their time, while often less, must be competitive with the money they can earn in private practice, and therefore is a great cost. However, the view of legal aid as being a luxury, without return on the investment, is a myth which this paper will seek to dispel.

Legal Aid in the Criminal Justice System

The benefits of providing legal aid to criminal defendants has benefits both with respect to ensuring due process and fair trial, and in alleviating financial pressures of the broader criminal justice system. The UN Principles discussed above list a number of reasons for the importance of legal aid in the criminal justice system, stating that a well-functioning system may have multiple benefits.[3] Among those mentioned, it is worth highlighting a few: first and perhaps most obviously, access to legal representation for defendants can reduce the risk of wrongful convictions; secondly, it can reduce prison population and overcrowding, and reduce the length of time suspects are held in police stations; thirdly, it can facilitate alternative sanctions to prison, saving on public funds and reducing reoffending; and fourthly, it can be used to improve protection and respect for victims and witnesses.

These benefits run along two lines, firstly with respect to creating a fairer, safer and more just system of criminal justice. The granting of legal assistance to defendants is reflective of a model of criminal justice which Packer famously characterised as ‘the due process model’, creating a procedural ‘obstacle course’[4] for prosecutors, to ensure fairness and protect human rights.[5] While this may hinder the efficiency of punishing offenders, it protects against an ‘authoritarianism’ in criminal justice systems and is characteristic in liberal democracies.[6]

Despite the cost of State provision of legal aid, the benefits described above may lead to decreased resource use in other areas. Keeping a large prison population also requires significant financial investment, and where there is a shortage of resources, a common solution is overcrowding of existing structures. This in turn can reduce rehabilitation efforts, which increases the chances of reoffending and thus applying further strain to the system.[7] A functioning legal aid system allows for prisoners to be more efficiently and effectively dealt with, preventing unnecessary congestion in courts and detention centres, thus leading to financial savings while better protecting the rights of accused persons within the system.

The Case for Legal Aid in the Civil Justice System

Access to legal assistance in criminal proceedings, where the defendant finds themselves at risk of deprivation of liberty, or even capital punishment, can be easily seen as a human rights issue, and justified as an essential safeguard to ensure fairness in those proceedings. However, the provision of legal services to civil litigants is considered less fundamental, and has been subject to cuts in even the most developed democracies.[8] It is argued here, however, that the provision of legal aid in the civil justice system has a wide range of benefits for the population and the functioning of the legal system in a democracy.

At its most fundamental level, the provision of legal aid to civil litigants improves ‘access to justice’. This term refers to the notion that individuals should be able to use the State institutions mandated to administer justice to their own ends, to vindicate their rights and resolve their disputes. Achieving better ‘access to justice’ consists of two different elements: firstly, the ‘access’: which must be equal for all individuals to ensure consistent application of law, and to give meaning to everyone’s legal rights in equal measure; secondly ‘justice’: the results achieved by the system must be just, in an individual and social sense.[9]

These two elements are both assisted by the provision of free legal aid to litigants who cannot afford to pay for it. The benefits of improving ‘access to justice’ will be considered as two different, but interrelated, aspects. Firstly, in improving ‘access’, legal aid can reduce socioeconomic discrimination in civil justice systems, by removing financial barriers from its effective use. Secondly, it can improve the capacity of these systems to provide ‘justice’, by practically facilitating efficiency (and therefore cost-effectiveness), and assisting in the consistent application of law by judges, therefore strengthening the legal system and rule of law.

Improving ‘Access’ to Justice

The cost of accessing justice is not small. Lawyers’ time, for advice or representation, is expensive. The gathering of evidence with the use of specialists and experts accrues a large cost. Additionally, there may be procedural costs, as justice systems can sometimes be imbued with fees for their services, taking the form of court fees. The bill for these costs typically falls on the individual who is making use of them. This is, of course, intended to spread the burden for administrative costs, staff salaries, rents or building maintenance, away from the taxpayers and public resources, and onto the persons who are making use of those services. However, the burden of these fees can have a disparate impact on different persons or entities making use of them, as an individual of less socioeconomic means may not have the resources to pay a fee that may be of relative inconsequence to a corporation of greater resources. This can prevent individuals or entities with less means having access to the justice system.

In critiquing the impact of cuts to civil legal aid in the United Kingdom, Amnesty International asserted that the changes create ‘a two-tier justice system: open to those who can afford it, but, increasingly closed to the poorest, most vulnerable and most in need of its protection.’[10] A civil justice system without legal aid for indigent individuals is one to which those individuals cannot have access. This means that their rights, despite having notional legal protection, cannot be effectively vindicated. The financial barrier to making a claim means that these individuals’ rights cannot be realised, they never manifest their potential promised by the law.

This can have the knock-on effect of hindering development and the alleviation of poverty, and preventing social mobility. If poorer individuals are unable to, for example, enforce their rights under a contract, then this may prove an obstacle for them to engage with the market and to increase their wealth. Access to the civil justice system is essential in the functioning of the free market in a liberal democracy, and by excluding those without the existing wealth to access it, a status quo of property owners is further entrenched, and those with less means are open to exploitation.

Practical Benefits to the Administration of ‘Justice’

Provision of legal aid can provide much practical benefit to the functioning of civil justice systems also, increasing efficiency in both time and cost, and improving the quality of legal reasoning and judgments.

The International Consortium for Court Excellence recognise ‘timeliness’ as a core value of a well-functioning court system, reflecting a balance between taking sufficient time to view a case, and preventing unreasonable delays.[11] A prompt trial is widely recognised as an important aspect of the right to a fair trial,[12] and delays can increase the running costs of courts (in salaries, building costs etc.) and decrease economic efficiency. Defendants representing themselves, or coming to court uninformed of legal aid options available to them, are more likely to need help navigating the system, and to have process and law explained to them on the court’s time.[13]

Investment in legal aid, and therefore more involvement of legal professionals assisting and representing litigants in the civil justice system, can lead to greater cost-effectiveness in the system generally. The Australian Productivity Commission, in analysing the impact of cuts to legal aid, notes that this expense is not obvious, compared to investment in legal aid, but that the cost is still borne by public funds.[14] The Productivity Commission also noted broader savings that legal aid can provide for public expenditure, as restricting spending on legal aid can lead to problems which would otherwise be solved by proper operation of the civil justice system requiring further government intervention to solve, for example, on healthcare, housing, or child protection.[15] 

An additional concern regards the outcome of cases where litigants have not been able to obtain legal advice or representation due to financial constraints and lack of legal aid. In many cases, the only option for litigants to have their case heard therefore is if they choose to represent themselves. There is a fictitious presumption that judges, as neutral arbiters of the law, should be able to apply the law to facts on their substantive merit, and therefore there should be no bias against litigants in person. However, social scientific research studies in the UK have consistently shown that litigants in person (those without representation) are less likely to have judgments in their favour.[16] This can have an impact not only on the individual litigants, but also on the consistent application and development of law. Lawyers in the courtroom employ a wide range of skills in advocating their case, identifying relevant facts so that the law can be applied in a formalistic way, but when the two sides do not have equal representation before a judge, decisions can be made in an inconsistent way, at a detriment to legal certainty and the ability for the system to do ‘justice’.

Human Rights and Legal Aid

A previous UN Special Rapporteur on the Independence of Judges and Lawyers, Gabriela Knaul, described legal aid in a report in 2013 as: ‘a right in itself and an essential precondition for the enjoyment of a number of human rights, including the right to a fair trial and the right to an effective remedy’.[17] That description raises two points of significance with respect to legal aid. Firstly, its nature as a right itself, and secondly in its role as a necessary precondition in realising other rights.

A human right to free legal aid is not found in a comprehensive[18] sense in the text of international human rights treaties, however there are specific guarantees which can be found, mostly with respect to defendants in the criminal justice system, for example, in the International Covenant on Civil and Political Rights (ICCPR).[19] Conventions on thematic issues (for example, the UN Convention against Torture),[20] or with reference to particular vulnerable groups (for example, the International Convention on the Elimination of All Forms of Racial Discrimination)[21] also often refer to a right of victims to have their case heard, or the enforcement of their rights in courts. The bodies responsible for interpreting and monitoring the implementation of these treaties often state the importance of comprehensive legal aid in their analysis,[22] and generally consider the right to legal aid implicit and central in the realisation of other rights in their text. This will now be explored particularly regarding the ICCPR.

The ICCPR provides in article 14(3) that ‘In the determination of any criminal charge against him, everyone shall be entitled to […] have legal assistance assigned to him, in any case where the interests of justice so require, and without payment by him in any such case if he does not have sufficient means to pay for it’. This protection applies in principle to any criminal charge, but there is no mention of legal aid in civil justice. In the drafting of the ICCPR, a version of this article including a right to counsel in civil matters was posed, but this was eliminated before the final version,[23] leaving it absent in this document. Subsequent guidance by the Human Rights Committee (‘HRC’) (who are tasked with overseeing the implementation of the ICCPR) has asserted that article 14 in general applies not only to criminal justice, but ‘also to procedures which determine their rights and obligations in a suit at law’,[24] and called on States in their periodic reporting to explain how both these aspects were implemented in their legal systems.[25] This has become common practice, with States frequently reporting on their legal aid provision for civil justice also.[26] This could be argued as demonstrating an opinio juris that this provision is required under international human rights law.

The justification for a right to legal aid in civil matters is related to the second aspect of Knaul’s description above, specifically that access to justice is a necessary precondition for the realisation of other rights. The HRC endorses access to justice which allows claimants to ‘determine their rights and obligations at law’, and this is reflective of the importance of the civil justice system in the realisation of other rights. Durbach has developed the idea that access to civil and administrative justice must form part of basic human rights, in that it is essential to guaranteeing the enjoyment of all socioeconomic rights.[27] Despite less importance placed on this in human rights frameworks, she poses that protecting individuals’ livelihoods must be considered as important as protecting their liberty, to prevent social exclusion and to create a more just and equal system.[28]

The notion that legal aid beyond the criminal justice system is a fundamental part of protecting other human rights is implicit in the HRC’s guidance. It has stated: ‘while article 14 explicitly addresses the guarantee of legal assistance in criminal proceedings […] States are encouraged to provide free legal aid in other cases, for individuals who do not have sufficient means to pay for it. In some cases, they may even be obliged to do so.’[29] The HRC uses the example of judicial review of a death sentence, which while beyond the scope of criminal justice per se, clearly requires legal aid to properly realise article 14, as well as the article 2(3) right to an effective remedy.[30]

Several substantive rights require broad access to legal aid to be properly realised, as it is fundamentally linked to equality before the law without differential treatment based on one’s material resources. Sedley has written: ‘rights without remedies are of little value. To possess a right of free speech or movement is of little value if you lack the legal means to vindicate it when others obstruct it; […] includ[ing] both access to the courts and skilled representation in court’.[31] Even where a right to legal aid in the civil justice system is not mentioned explicitly in international legal texts, its importance in realising other rights creates implicit obligations, which are often interpreted into the law by international monitoring bodies.

Legal Aid in The Gambia

This paper will now consider the legal framework for the provision of legal aid in The Gambia. The development of the law will be analysed with respect to the scope and beneficiaries of its provision, both prior to and after the introduction of the Legal Aid Act of 2008. This piece of legislation will be considered, both in the institutions and rights it creates, but more importantly with respect to its implementation. Additionally, the obligations of The Gambia under international law will be considered, and finally how current shortcomings in the implementation of the legislation could be improved.

Pre-2008

The Constitution of The Gambia of 1997 enshrines the provision of legal aid in certain circumstances. Article 24(3) reads: ‘Provided that where a person is charged with an offence which carries a punishment of death or imprisonment for life, that person shall be entitled to legal aid at the expense of the State’. This enshrined at a constitutional level the obligation to provide legal aid to defendants facing the death penalty, which was also found in section 3 of the Poor Person’s Defence (Capital Charges) Act of 1993.

The provision of legal aid in both the Constitution and the 1993 Act gave a firm legal basis for defendants facing capital punishment and for those facing life imprisonment, however, there were shortcomings with the protection offered. Firstly, its limited application would leave indigent individuals facing other criminal charges without representation or advice, as well as not provide for legal assistance with civil matters. While clearly capital punishment requires a high level of due process and safeguards owing to the heightened consequence of a miscarriage of justice, other persons facing loss of liberty also deserve the protection of due process offered by legal representation. Secondly, the implementation of the legal aid provisions was not sufficient for the right to be realised, as the law was not comprehensive enough to institutionalise the guarantee into a functioning system.[32] While this responsibility fell with the Office of the Chief Justice, the legislation did not provide a structure or procedure, and was largely subsumed by the other responsibilities of that office.[33]

The Gambia’s Human Rights Obligations

The human rights norms discussed above create several obligations for The Gambia related to the provision of legal aid under international law. The Gambia has ratified a selection of human rights treaties, notably the ICCPR, and others including the Convention on the Rights of Child[34] and Convention on the Elimination of All Forms of Racial Discrimination,[35] all of which create obligations to provide legal assistance to their respective groups. As discussed above, these frameworks of human rights law have had their obligations strengthened, by interpreting bodies, to provide access to free legal aid widely.

These obligations were understood by the government of The Gambia in its 1979 accession to the ICCPR however. A reservation was submitted at that time stating: "For financial reasons free legal assistance for accused persons is limited in our constitution to persons charged with capital offences only. The Government of the Gambia therefore wishes to enter a reservation in respect of article 14 (3) (d) of the Covenant in question."[36] This is significant in The Gambia not consenting to be bound by a broad interpretation of article 14 with respect to provision of legal aid. While reflective of the need for resource allocation to effectively realise this right, this is true for the realisation of other rights as well (consider the resources required for other aspects of the right to fair trial, or economic, social and cultural rights under the International Covenant on Economic, Social and Cultural Rights to which The Gambia is party without reservation). The reservation is significant in specifically highlighting legal aid as an area to which the government of The Gambia did, at that time, refuse to accept obligation. The intention to realise other rights requiring financial investment can be found, and it is notable that this right was not considered a priority.

The legal effectiveness of the reservation has not been tested, and it is unlikely to be considered ‘incompatible with the object and purpose’[37] of the ICCPR. As discussed above however, proper realisation of the right to fair trial and other rights is intrinsically connected to rights to legal aid, and the gap in provision in The Gambia may have implications for other obligations.

Another important set of obligations under international law comes from the African continent, particularly the African Charter on Human and Peoples’ Rights. Significantly, the African Commission on Human and Peoples’ Rights examined in Purohit and Moore v The Gambia[38]  the provision of legal aid under Gambian law as it stood in 2001. After the complainants submitted to the African Commission that they were wrongfully detained under the Lunatic Detention Act, the Commission examined whether there was legal redress available.[39] The government argued that there was a right to challenge this in the courts, but conceded that legal aid was not possible except in cases of the death penalty.[40] In finding the decision admissible despite supposed domestic avenues not being exhausted, the Commission stated that: ‘The category of people being represented in the present communication are likely to be people picked up from the streets or people from poor backgrounds and as such it cannot be said that the remedies available in terms of the [Gambian] Constitution are realistic remedies for them in the absence of legal aid services.’[41]

The finding of the African Commission was that The Gambia had violated, amongst others, article 7(1)(a) (‘the right to an appeal […] against acts violating his fundamental rights’) and 7(1)(c) (‘the right to defence, including the right to be defended by counsel of his choice’) of the African Charter. This is significant as the implication is that the absence of legal aid was defeating of these rights. The argument of the government of The Gambia that legal aid only be granted to those facing the death penalty was not accepted by the Commission, and therefore it was found that Gambian law did not offer sufficient protection.

Post-2008

The legislative guarantee of legal aid was expanded in 2005 with the introduction of the Children’s Act. An act aimed at protecting and safeguarding children, the legislation provided for a specific institution (the Children’s Court)[42] and rules for the criminal justice system with relation to juveniles.[43] Section 72(1) of the Act, in stipulating the procedure of the Children’s Court, states that ‘the child shall have a right to legal representation and legal aid provided by the Government’, and at Section 207 repeats ‘the right to legal representation’ of the child in the administration of juvenile justice.

This additional provision of legal aid was part of a progressive piece of legislation to bring The Gambia in line with its international human rights obligations on the protection of children.[44] However, references to legal aid were still stunted in their implementation by the lack of specific institutions and procedures for such provision. Then came a significant attempt to remedy this problem, in 2008, with the passing of the LAA. This piece of legislation provided for the creation of the NALA,[45] and provided considerable reform of the scope of availability of legal aid under Gambian law.

The LAA expanded the provision of legal aid beyond that of the Poor Person’s Defence (Capital Offences) Act (which it repealed), allowing for provision of legal aid where the defendant faces a charge which carries punishment of death or life imprisonment, or, significantly, in ‘any criminal or civil matter [where he/she] earns not more than such minimum wage as the Government may specify’.[46] This development in law has the potential to signal a considerable expansion in those eligible for legal aid: comprehensive protection of indigent criminal defendants is now provided for, beyond offences punishable by death or life imprisonment; and legal aid is available for civil litigation where the defendant does not earn up to a minimum amount.

Other positive features of the act that should be noted include an expansion in the types of legal assistance which can be provided, and legal aid in a greater variety of courts and dispute resolution mechanisms. Firstly, the definition in the LAA of legal aid is expansive, as section 30(3) includes reference not only to representation in court, but also to assistance given ‘in the steps preliminary or incidental to any proceedings’. This definition is in line with the UN Principles’ definition discussed above, and could give allowance for a lawyer to be assigned prior to a court hearing, which could allow for better due process upon detention prior to a criminal charge, or for a potential civil claimant to seek legal advice prior to bringing a claim. Secondly, the range of venues in which legal aid can be provided is expanded. The section 30(3) definition notes that representation can be granted ‘before any court or tribunal’, and includes ‘assistance at arriving or giving effect to a compromise to avoid or to bring an end to any proceedings’. This expands the scope of legal aid provision beyond simply action in the High Court of The Gambia, and can be inclusive of alternative dispute resolution (ADR) mechanisms. This could include conciliation or mediation mechanisms, or advice on resolving disputes under Sharia or customary law subject to the procedure of those systems, or in district courts.[47]

These features make the LAA a strong legislative framework for the provision of legal aid, as it conforms with the obligations discussed above from international human rights law, and broadens the provision of legal aid from the previous law. Criminal defendants are given rights to legal assistance which is both broader in scope, and imbued with institutional capability of provision. It strengthens the capacity of the law to provide legal aid to criminal defendants, and has the potential to provide a variety of services to improve access to justice for indigent individuals, tailored to the plurality of options available to claimants in The Gambia. Analysis of the statute aside however, it is necessary to consider how the implementation of this legislation has not allowed it to fully unlock the potential of its provisions.

A key issue has been in the proper implementation of section 30(2), which allows for provision of legal aid to any who ‘earns not more than such minimum wage as the Government may specify’. This, however, as of December 2017, had not yet been set.[48] Without a legal limit set on the maximum wage that an individual can earn to qualify, this section, and the rights to both criminal (beyond capital and life imprisonment offences) and civil legal aid are rendered unenforceable. NALA in implementing the Act is unable to determine whether an individual qualifies for legal aid under this section until the government sets a wage limit under this section, and despite 10 years since the passing of the LAA, this key first step in its proper implementation has not yet been made.

The problem with legal implementation is also compounded by a broader problem of underfunding. This has had effects on the capacity of the agency to expand its provision of legal aid around the country, and has vitally limited the amount of human resource that NALA has taken on.[49] Despite the agenda of potential legal aid cases set by the legislation, the work of NALA has been limited to those cases most needing assistance, mostly those in the children’s courts or concerning the death penalty. These cases alone create a large workload for the few lawyers who are employed by the agency, and expansion of its work to properly realise its aims under legislation is dependent on more personnel and therefore more funding.

There are further knock-on effects of the lack of resources available to NALA, which have important ramifications for the implementation of the LAA. The staff, in dealing with those most vital cases, must do so in great quantity. Executive Secretary Charles Thomas has stated that there are 3 permanent legal officers have up to 1321 clients registered for legal advice and assistance in a year, and the lawyers are representatives in an average of 150 cases each year.[50] Despite some other members of support staff to facilitate this work,[51] and projects facilitated with other partners to increase awareness, this caseload means that they have less time available to broaden their caseload to civil cases, or to work on ensuring good access to their services around the country.

Improving Implementation of the Legal Aid Act

It is evident that full implementation of the agenda posed by the LAA is dependent upon financial investment, and this clearly poses an issue for the government of The Gambia. Since the Barrow government has assumed power, the depleted state of public finances has been a subject of much concern.[52] Despite some international assistance,[53] public money for services is scarce, and it is understandable that concerns such as food security, healthcare, and education are also competing for investment. The above discussion aims to have made a case for the range of benefits which investment in access to justice can bring to a legal system and society however, and it cannot be understated how investment here can lead to a better society and savings elsewhere.

To reiterate the efficiency of savings that legal aid can bring in the criminal justice system, it is important to consider the balance with spending on prisons. The prison system in The Gambia has been over capacity for many years[54] and despite signs that the new government are willing to invest more money into that system,[55] it remains underfunded. This is known to decrease chances of rehabilitation, which is already a difficult end to achieve through imprisonment.[56] As discussed above, improving access to legal aid for defendants, thereby improving their engagement with the system, reducing miscarriages of justice, and improving the chances of non-custodial sentences being given can have the effect of reducing prison numbers. This is essential to take the strain off the system, improving rehabilitative results by ending a vicious cycle of reoffending, and can make for a more financially efficient criminal justice system.

The above discussion of the report by the Australian Productivity Commission should also be reiterated, as spending on the civil justice system can reduce the need for government intervention in other areas of social and economic life, as people have access to their full rights under the civil law. In The Gambia, access to district courts and the customary legal system can provide access for litigants. However, the LAA can provide for better engagement with all aspects of the legal system if more resource is available. Paying a lawyer to access these systems, if one can be afforded, can also cost many thousands of Dalasis for a family, and the money can be better spent on other things if that access is provided by the state.[57]

Those points aside, it is important to be realistic about how practically full implementation of the legislation can be achieved. Now different aspects of this will be considered, thinking both about strategic investment and other structural and cultural modifications that can be made to take advantage of existing resources. The points made here hope to contribute towards growing discussion about the improvement of the Gambian legal system as a mechanism which represents the entire population, and of which all can take advantage.

Better Government Support for the Legal Aid Act

As discussed above, the legislation has many very strong features, but has been held back by its implementation. This in part falls on the way in which the previous government had implemented the Act. The creation of NALA is a strong step, but as discussed above, access to legal aid for civil cases is reliant upon the setting of a minimum wage beneath which persons may get entitlement to legal aid. The Institute for Human Rights and Development (IHRDA), in their expansive work advocating for legal aid in The Gambia, issued recommendations in its 2012 report ‘Legal Aid in The Gambia: An introduction to law and practice’, including that ‘The Attorney-General and Minister of Justice, in consultation with NALA, sets a national minimum wage […] without delay’.[58] That this has still not been done provides a hindrance to realising the capability of the legislative agenda that the government should seek to address. Charles Thomas noted in 2017 that a reason for this rests with the lack of human resource at NALA to consider this,[59] however, the recommendation of the IHRDA notes the importance of the role of the Ministry of Justice in this development. Section 30(2) leaves this responsibility with the Government, and it should be a priority of the ‘New Gambia’ that the Ministry of Justice sees to setting this. It is only through this section that the scope of access to legal aid in civil matters can be defined, and as long as it is not done, this aspect of the legislative regime cannot be effectively realised.

This paper has also sought to make a case for greater investment into legal aid, with view to the savings in government expenditure which can be made elsewhere. This is to be done through the Legal Aid Fund, established under section 24 of the LAA. Part of this fund is to be made up of ‘such sums as may be provided, from time to time, by the Government for payment into the Legal Aid Fund’.[60] While NALA remains underfunded, a strong case can be made that increased contribution by the new government should be a prioritised expenditure, with view to increasing human resource at NALA to better increase the number, and variety, of cases that NALA can take on.

The UN Principles discussed above have given recommendations on achieving this, stating that ‘States should […] make adequate and specific budget provisions for legal aid services that are commensurate with their needs, including by providing dedicated and sustainable funding mechanisms for the national legal aid system’.[61] Specific suggestions include ‘allocating a percentage of the State’s criminal justice budget to legal aid services[; and] using funds recovered from criminal activities through seizures or fines to cover legal aid for victims’.[62]

The Role of Gambian Legal Communities

The UN’s principles additionally recognise the role of non-State legal aid providers,[63] this can come through several different sources. Civil society, private lawyers, and law students are all important resources present in the Gambian legal landscape, which can be tapped as important support for a state legal aid system, providing the same benefits at cheaper, or at least better distributed, cost. Each of these three groups will now be considered in turn.

Civil Society Organisations

Local civil society organisations have a strong presence in the legal community of The Gambia. Organisations such as the Female Lawyers’ Association of The Gambia (FLAG) and the Institute for the Advancement of Children’s Rights (IACR) are but two examples representative of a strong Gambian civil society rooted in local knowledge of the legal system. Many organisations work towards and are dedicated to achieving a better and fairer justice system, and have provided pro bono services and representation to vulnerable groups in addition to their advocacy work. International organisations also have had some interest in improving access to justice with their work (for example, the EU’s recent access to justice and legal education project)[64] with strategic and targeted interventions, but the smaller organisations’ role as pro bono service providers must be supported and recognised as a key provider of legal assistance and representation to those who would not otherwise have it.

The UN Principles refer to measures that States should take to support these organisations, including ‘work[ing] with all legal service providers to increase outreach, quality and impact and facilitate access to legal aid in all parts of the country and […] communities’.[65] The government has a responsibility to facilitate this. The legal community in The Gambia is relatively small and a level of connection is achieved by way of personal and social connections between individuals. However, official connections between pro bono service providers and offices of the justice system can be used to further these connections and provide greater recognition to the role they play in providing legal aid to the justice system.

Another important point to make is that while existing institutions are doing good work, the establishment of more could improve their role in the system. These organisations can be effective at securing private investment and international aid, providing relief to public financing of State-provided legal aid. The UN Principles recommend that States: ‘diversify legal aid service providers by […] encouraging the establishment of centres to provide legal aid services’,[66] and, while the State can play a role in this, some responsibility also rests with those with the technical ability to run such organisations, which is the Gambian community of lawyers.

Lawyers in The Gambia

The legal community in The Gambia has seen huge growth over the past decade. With the opening of the Faculty of Law at the University of The Gambia in 2007, and the Bar School in 2012 we have seen the first cohorts of home-educated Gambian lawyers arriving at the bar in great numbers, trained by eminent Gambian lawyers and judges, and armed with advocacy skills and developed and specific knowledge of the legal system of their home country. If you speak to students of law in The Gambia about their reasons for choosing the profession, they present a wide range of interests in the law reflecting their backgrounds and personalities, but are united in their desire to improve the situation in the country, whether it be by fighting for civil rights and liberties through international human rights and defence of the Constitution, or improving the economy and industry through commercial contracts and international trade.

It is understandable that those qualifying as lawyers in The Gambia seek reasonable compensation for their services, and a career as a lawyer can provide a financial comfort and social mobility for those who had to work hard to qualify and get into practice. However, as discussed above, the use of their services is sometimes most needed by those who are unable to pay for it. A means for providing these services could be through projects by lawyers, creating the types of civil society providers of pro bono services we already see in the country. Additionally, there are mechanisms under the LAA which privately-practicing lawyers can use to reduce financial barriers to access to legal services.

Section 32 of the LAA provides for the creation of a ‘Register of legal practitioners and firms [...] willing to advise, assist or represent persons entitled to receive Legal Aid, whether gratuitously or otherwise’.[67] This provides an important additional resource to the staffing of NALA, who can use the list to spread the case load to lawyers who are willing to do some work pro bono, or for some compensation from the legal aid fund.[68] Many Gambian lawyers already take on some work pro bono, and this can provide essential support to legal aid provision in the country, increasing the effectiveness of the legal system and making it work better for all. The UN Principles recommend that States take measures: ‘to identify and put in place incentives for lawyers to work in rural areas and economically and socially disadvantaged areas (e.g., tax exemptions or reductions, student loan payment reductions)’,[69] and these are but examples of ways in which the Government could bolster the LAA to incentivise lawyers to give back through pro bono work. However, it also falls with the Gambian legal community to continue to foster a sense of social responsibility amongst their peer group, reflective of the privilege which the profession can grant.

The Role of Law Students

The UN Principles explicitly mention universities as a key partner to legal aid service providers. They recommend ‘encourag[ing] and support[ing] the establishment of legal aid clinics in law departments within universities to promote clinical and public interest law programmes among faculty members and the student body’, as well as ‘encourag[ing] and provid[ing] incentives to law students to participate’.[70] Clinical legal education is widely recognised as providing two major benefits: firstly in improving access to justice through providing legal services, clinics can bolster and support the provision of legal aid from other sources, making use of the immense human resource power of law students to improve the legal system and provide an additional avenue for accessing justice mechanisms; and secondly, in providing practical skills training to students, acquainting them with how their academic studies apply in the real world.[71]

The University of The Gambia Law Clinic was established in 2012, aiming to support the work of NALA and other legal aid providers in improving access to justice while furthering, through practical application, the education of students at the Faculty of Law.[72] The Clinic has been involved in a number of different projects and initiatives over the years, ranging from community education and research tasks, both independently and with civil society and international organisations such as the United Nations Development Project and the Gambian Commission for Refugees. It has also at times provided direct advice and representation to individuals given under supervision of legal practitioners and Faculty members.

The Clinic has been consistently successful in attracting able students committed to social justice and improving the legal system for all Gambians, however, there are several areas in which the Clinic could be further supported to play a stronger role in the legal aid system. Despite huge potential, the growth of the Clinic could be stimulated by greater involvement from members of the Faculty. Involvement is often done on a voluntary basis, and by better incentivising this for staff, the wealth of skills and knowledge of the Gambian legal system and community could be better utilised in building the Clinic. This is linked to a need for greater allocation of resources from the University budget, as the Clinic has largely been dependent upon outside sources, which can be inconsistent and project-specific. Additionally, financial resource could also expand its reach beyond the Faculty in Kanifing, and provide assistance around the country. There is also a wealth of knowledge and connectivity about law clinics in West Africa and around the world, which the Clinic could be supported in becoming a part of.

Aside from supporting legal aid providers and providing skills training for students, University Law Clinics can help to instil a greater understanding of the benefits of access to justice in the next generation of Gambian lawyers, exposing them to the ways in which the legal system can be used by disadvantaged communities and the role of the legal system and practitioners in improving the rights situation and alleviating poverty in Gambian society. Instilling this understanding of the importance of the role of legal aid and pro bono work in education could have far-reaching benefits for achieving the above suggestions and create a better, more accessible, and more sustainable future for the legal system of The Gambia.

Conclusion

This paper hopes to have shed a positive light on the potential for broad access to justice and legal aid under the LAA, as well as on the Gambian legal community who have been working for generations to improve the legal system of The Gambia and make it more effectively able to protect the rights and liberties of the whole population. A case has here been posed for improving legal aid and access to justice within the national legal system, based on its practical and financial benefit, as well as the benefits it can bring to the human rights situation in the country.

However, with the ‘New Gambia’ comes discussions about how these systems could better protect the most vulnerable and indigent in society. It is time for the legal system of The Gambia to work better for the rights of all, and it is the responsibility of a wide range of actors across the development, human rights, legal, and education communities to achieve that end. There is a lot of promise within the communities and the law to achieve a fairer and more accessible justice system, but much remains to be done. With the change of regime comes a great opportunity, but also the risk of continuing previous failings.

Footnotes

[1] The Point, ‘Essential Legal Aid and Access to Justice in The Gambia’ (The Point, 29 December 2017) <http://thepoint.gm/africa/gambia/article/essential-legal-aid-and-access-to-justice-in-the-gambia> accessed 22 March 2018.

[2] UNGA Res 67/187, ‘United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems’ (28 March 2013) UN Doc. A/Res/67/187, Annex, para 8.

[3] Ibid, Annex, paras 3-4.

[4] H Packer, The Limits of the Criminal Sanction (Stanford University Press, 1968), 163.

[5] R Vogler, ‘Due Process’ in M Rosenfeld & A Sajó, The Oxford Handbook of Comparative Constitutional Law (Oxford University Press, 2012), 933

[6] Ibid, 936-7.

[7] T Leffet, A Alazzi del Frate, T Pietschmann, S Kunnen, ‘Why Fighting Crime Can Assist Development in Africa: Rule of law and protection of the most vulnerable’ (UN Office on Drugs and Crime, May 2005) <https://www.unodc.org/pdf/research/Africa_Summary_eng.pdf> accessed 7 March 2018, 21.

[8] On the USA: F Gibson, ‘Under Attack: Civil legal aid services in the USA’ (2000) 25(4) Alternative Law Journal 173; On the UK and Australia: A Flynn & J Hodgson (eds), Access to Justice and Legal Aid: Comparative Perspectives on Unmet Need (Hart Publishing, 2017).

[9] M Cappelletti & B Garth, ‘Access to Justice: The newest wave in the worldwide movement to make rights effective’ (1978) 27 Buffalo Law Review 181, 182.

[10] Amnesty International, ‘Cuts That Hurt: The impact of legal aid cuts in England on access to justice’ (Amnesty International UK, October 2016) <https://www.amnesty.org.uk/files/aiuk_legal_aid_report.pdf> accessed 4 March 2018, 3.

[11] International Consortium for Court Excellence, ‘International Framework for Court Excellence (2nd edn, March 2013) <http://www.courtexcellence.com/~/media/Microsites/Files/ICCE/The%20International%20Framework%202E%202014%20V3.ashx> accessed 5 March 2018, 3.

[12] See for example: African Charter on Human and Peoples’ Rights (adopted 28 June 1981, entry into force 21 October 1986), article 7(1)(d).

[13] P Spencer, ‘A View from the Bench: A judicial perspective on legal representation, court excellence, and therapeutic justice’ in Flynn & Hodgson (eds) (n 8), 90

[14] Australian Government: Productivity Commission, ‘Access to Justice Arrangements: Overview’ (Inquiry Report No. 72, 2014) <https://www.pc.gov.au/inquiries/completed/access-justice/report/access-justice-overview.pdf> accessed 5 March 2018, 31.

[15] Ibid, 30-31.

[16] K Williams, ‘Litigants in person: a literature review’ (Research Summary 2/11, Ministry of Justice, June 2011) <https://www.gov.uk/government/uploads/system/uploads/attachment_data/file/217374/litigants-in-person-literature-review.pdf> accessed 5 March 2018, 6.

[17] UN Human Rights Council, Report of the UN Special Rapporteur on the Independence of Judges and Lawyers (15 March 2013) UN Doc A/HRC/23/43, para 20.

[18] Referring to provision in both civil and criminal proceedings.

[19] International Covenant on Civil and Political Rights (adopted 16 December 1966, entry into force 23 March 1976) (the ‘ICCPR’).

[20] Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (adopted 10 December 1984, entry into force 26 June 1987) (the ‘CAT’), article 14.

[21] Convention on the Elimination of All Forms of Racial Discrimination (adopted 21 December 1965, entry into force 4 January 1969) (the ‘CERD’), articles 5 + 6.

[22] See for example: Committee on the Elimination of Racial Discrimination, ‘General Recommendation 31 on the prevention of racial discrimination in the administration and functioning of the criminal justice system’ (2005) U.N. Doc A/60/18, Section C, para 17(b).

[23] M F Davis, ‘In the Interests of Justice: Human Rights and the Right to Counsel in Civil Cases’ (2009) 25 Touro Law Review 147, 159-60.

[24] UN Human Rights Committee, ‘General Comment No. 13: Equality before the courts and the right to a fair and public hearing by an independent court established by law (Art. 14)’ (13 April 1984), para 2.

[25] Ibid, para 2.

[26] Davis (n 23), 162-163.

[27] A Durbach, ‘The Right to Legal Aid in Social Rights Litigation’ in M Langford (ed.), Social Rights Jurisprudence: Emerging Trends in International and Comparative Law (Cambridge University Press, 2008), 59.

[28] Ibid, 64-65.

[29] UN Human Rights Committee, ‘General Comment No. 32: Article 14: Right to equality before courts and tribunals and to a fair trial’ (23 August 2007) U.N. Doc CCPR/C/GC/32, para 10.

[30] Ibid, para 10.

[31] S Sedley, Freedom, Law and Justice (Sweet & Maxwell, 1999), 3.

[32] Institute for Human Rights and Development in Africa, ‘Legal Aid in The Gambia: An introduction to law and practice’ (IHRDA, 2012) <http://www.ihrda.org/wp-content/uploads/2012/04/Legal-Aid-in-The-Gambia-layout-2012-website-download.pdf> accessed 9 March 2018, 14.

[33] Ibid, 17.

[34] See: Convention on the Rights of the Child (adopted 20 November 1989, entry into force 2 September 1990), article 37(d).

[35] CERD (n 21), articles 5 + 6.

[36] Reservation of the Republic of The Gambia to the International Covenant on Civil and Political Rights (UNTS, IV 4) <https://treaties.un.org/doc/Publication/MTDSG/Volume%20I/Chapter%20IV/IV-4.en.pdf> accessed 26 March 2018, 6.

[37] Vienna Convention on the Law of Treaties (adopted 23 May 1969, entry into force 27 January 1980), article 19(c).

[38] Communication 241/2001 Purohit and Moore v The Gambia [2003] AHRLR 96 (16th Annual Activity Report).

[39] Ibid, paras 34-37.

[40] Ibid, para 35.

[41] Ibid, para 37.

[42] Children’s Act (Act No. 5 of 2005) in Laws of The Gambia (2009), Chapter 45:01, Part VI.

[43] Ibid, Part XVII.

[44] See for example: African Charter on the Rights and Welfare of the Child (adopted 1990, entry into force 29 November 1999) OAU Doc. CAB/LEG/24.9/49, article 4.

[45] Legal Aid Act (Act No. 16 of 2008) in Laws of The Gambia (2009), Chapter 6:07, section 3.

[46] Ibid, section 30(2) [emphasis added].

[47] IHRDA (n 32), 20.

[48] The Point, ‘Essential Legal Aid…’ (n 1).

[49] Ibid.

[50] Ibid.

[51] IHRDA (n 32), 29.

[52] Al Jazeera, ‘Gambia accuses former president Jammeh of stealing $50m’ (Al Jazeera, 22 May 2017) <https://www.aljazeera.com/news/2017/05/gambia-accuses-president-jammeh-stealing-50m-170522193325380.html> accessed 28 March 2018.

[53] R Maclean and S Jammeh, ‘EU pledges €225m rescue package for the Gambia as new democracy dawns’ (The Guardian, 10 February 2017) <https://www.theguardian.com/global-development/2017/feb/10/european-union-eu-pledges-225m-rescue-package-newly-democratic-the-gambia-adama-barrow> accessed 28 March 2018.

[54] World Prison Brief, ‘Gambia: Overview’ (WPB, 2014) <http://www.prisonstudies.org/country/gambia> accessed 9 March 2018.

[55] F B Cham, ‘Gov’t spends over D48 million on prisoners’ (The Point, 11 July 2017) <http://thepoint.gm/africa/gambia/article/govt-spends-over-d48-million-on-prisoners> accessed 9 March 2018.

[56] J Sarkin, ‘Prisons in Africa: An evaluation from a human rights perspective’ (2008) 5(9) Sur. Revista Internacional de Direitos Humanos 22, 31.

[57] The Point, ‘Essential Legal Aid…’ (n 1).

[58] IHRDA (n 32), 31.

[59] The Point, ‘Essential Legal Aid…’ (n 1).

[60] Legal Aid Act (n 45), section 25(a).

[61] UN Principles (n 2), paragraph 60 [emphasis added].

[62] Ibid, para 61(b).

[63] Ibid, para 70-72.

[64] Abdoulie Nyockeh, ‘EU introduces 2.7M Euro project for access to justice, legal education’ (The Point, 15 January 2015) <http://thepoint.gm/africa/gambia/article/eu-introduces-27m-euro-project-for-access-to-justice-legal-education> accessed 3 April 2018.

[65] UN Principles (n 2), para 71(d).

[66] Ibid, para 71(e).

[67] LAA (n 45), section 32.

[68] Ibid, section 34.

[69] UN Principles (n 2), para 61(c).

[70] Ibid, para 72.

[71] D McQuoid-Mason, E Ojukwu, G M Wachiri, ‘Clinical Legal Education in Africa: Legal Education and Community Service’ in F S Bloch (ed.), The Global Clinical Movement: Educating Lawyers for Social Justice (Oxford University Press, 2010), 23.

[72] UTG Law Clinic Constitution [on file with author], Section 1.

 

 

The Type of Lawyers Africa Needs: Lessons for The Gambia

By David Ike, Faculty of Law, Imo State University, Owerri.

Abstract

This commentary raises corruption issues with the Gambia legal system, which is traceable to the system being imbalanced. This paper then notes the need for reforms to legal education in the Gambia and Africa more broadly, which should, at its core, be driven by African value systems and by distinctly African demand for ordered change and development. This article equally recommends the need for legal education to become relevant to the socio-economic and geo-political needs of Africa and the Gambia specifically. If the ideas discussed in this article are adopted, it will deeply help uproot corruption from the civil service of the Gambia.

Introduction

This paper argues that judicial system in the Gambia suffers from neglect, under-investment, and a severe lack of resources and infrastructure, resulting from a general de-prioritisation of its importance. Whilst the new Gambian government was supportive of the independence of the judiciary in discussions with the delegation, in practice, many of its actions undermined judicial independence and the rule of law, and its overall attitude to the judiciary was of grave concern to the delegation.[1] This has created a climate where the protection of human rights is undermined and the rule of law subverted.

The majority of judges in the Gambia are appointed on contracts from other African Commonwealth countries, mainly under the UK Department for International Development/Commonwealth Secretariat (‘DFID/CS scheme’), and Ghanaian and Nigerian technical assistance schemes.[2] At the time of the delegation’s visit, there were only three Gambian nationals serving at the bench.[3]

The constitutional appointment procedure for judges, given the dominance of the President and the Executive over the appointments to the Judicial Services Commission (JSC), the apparent lack of transparency with respect to the JSC processes, the absence of a clearly elaborated selection process and criteria for judicial appointments exposes judicial appointments to political influence. It is of serious concern that the appointment of contract judges operates outside the constitutional appointment procedure, and that the precise role of the JSC in this regard is unclear and limited. Considering these notable flaws surrounding the Gambia’s judicial system, this article will argue that part of the problem is rooted in the quality of legal training obtainable in the Gambia.

This article shall address the general system of legal education obtainable in Africa and thereon, adduce better training methods for potential lawyers in the Gambia; with goal of uplifting rule of Law and general legal system in the said country.

African Legal Education: Globalisation and Local Needs

Core Curricula Strengths

The law school curricula in Africa have unique strengths. By a stroke of historical luck and necessity, Africa was one of the first continents to internationalise law curricula, and it continues to preserve and enhance that advantage.[4] The curricula   essentially consist of a broad-scoped pedagogy sensitive to different legal systems. Like the pervasive inclusion strategy being considered in American law schools such as the University of the Pacific, McGeorge School of Law and New York University School of Law,[5] the curricula in African law schools expose students to public and private international law and comparative law materials.[6] British common law and juridical principles permeate almost every course, and American cases and principles on constitutionalism, separation of powers, and human rights form an essential core of African law school curricula.[7] In fact, the core courses offered at the various levels are very relevant and seem to be similar to those offered in many other jurisdictions, including the United States.[8] Also, legal history and jurisprudence are often core courses, which are designed to develop in students a sensitivity to various legal approaches.[9] African law students are thus exposed to a proper understanding of many legal traditions, such as common law, customary law, civil law, Arabic and religious law, and other countries' approaches to certain legal issues.[10] Law curricula effectively present ways to resolve conflicts that arise under different legal traditions.

The curricula also benefit from professors trained in countries outside Africa. African law professors often have graduate training in foreign countries, which results in an international and comparative approach to teaching.[11] Also, in the heady days of the independence era, African law schools benefited from the assistance of highly qualified legal scholars and educators from the United States, Britain, and other developed countries.[12] These law professors taught a wide range of core courses, which they greatly influenced with their American law, civil law, and other expertise.[13] They also studied African customary law, developed case books and, for a couple of decades, gave African students the opportunity to learn from the best comparative law experts. In their subsequent roles as law professors, these African law graduates maintained this comparative approach to legal education. African law students continue to benefit from the generosity of many American and other developed countries' law schools. Furthermore, schools such as Pacific McGeorge offer tuition waivers, financial assistance, and other resources and material support to enable African students to pursue graduate study, summer programs, long distance learning, and student and faculty exchanges.[14] In spite of these strengths, however, many weaknesses and challenges remain.

Curricula Weaknesses

This paper identifies that specific weakness in African legal education includes a lack of legal clinics to teach skills and sensitise students to local needs and aspirations, as well as limited course offerings, over-reliance on lecture, scarce legal aid support services, and a lack of perspectives on African juridical and philosophical value systems as they relate to the global legal system. Also, law schools lack adequate learning resources, such as well-stocked libraries, electronic information retrieval databases, information and communications technology, and computers.[15]

Other factors negatively impact the curricula. Overcrowding and disproportionate student-faculty ratios might impede effective teaching.[16] Inadequate remuneration for faculty might compel moonlighting in second or third jobs and, thereby, affect faculty preparation and delivery. Dysfunctional institutions, lack of a broad-based continental administrative structure to enhance the legal education process, corruption, poverty, lack of facilities, and scarce resources are all challenges confronting African legal education curricula reform. In addition to these broad challenges, there are several specific weaknesses to African legal education.

Rethinking Curricula Reform

Considering the weaknesses and challenges facing African legal education, a question seems to suggest itself: Is it not time to change, or at least re-examine, the law curricula model? Given the need to train African lawyers to confront transnational challenges and local needs, the African legal education system must deal with crucial policy issues regarding curricula reform. Such issues might include specialisation, acquiring practical skills, using legal clinics to teach skills, and sensitising students to local needs and aspirations, reducing over-reliance on lectures, increasing public interest sensitivity, changing the litigation and private practice focus of African legal education, increasing the number of courses offered, addressing geo-political needs, pupillage inadequacies, dysfunctional institutions, and globalisation needs, stimulating a vibrant interest in perspectives on African law as it relates to the global legal order, and improving learning resources, such as libraries, electronic information retrieval databases, computers, and information and communications technology. The need also exists to offer continuing legal education to lawyers in private practice, establish more legal institutions and organisations, and encourage public service. Training judges, legal support, paralegals, and administrative staff is also critical.

As noted earlier, the curricula reform needs of African legal education are multi-faceted and not limited to mainstream legal education institutions. However, any reform scheme must involve both the law faculties and law schools using a two-pronged reform agenda that focuses first on reforming law faculties and second on reforming law schools. The law faculties and the law schools have the same objective: to train the type of lawyer Africa needs. The fundamental question is thus: what is the best way to achieve that objective?

Research and Development-Oriented Courses

Should the curricula be modified at the law faculty level? If so, in what way? It seems "research-oriented courses would enable graduates to conduct independent research on the tasks they face in practice and write meaningful and informative papers" for use by policymakers.[17] Potential areas of research include stagnant development programmes, land tenure and land acquisition practices, funding for improvements in transportation, health delivery, education, and provision of social services. Stamping out corruption in the civil service, reforming some customary practices, curbing the scourge of HIV/AIDS, and many other topical issues serve as illustrative problem projects that African legal research can, and might have to, focus on. African law faculties, therefore, need to introduce research-oriented courses. Such courses are likely to emphasise the skills and perspectives a lawyer needs to discharge both domestic and international obligations, and could consider local needs and the challenges of practicing law in an increasingly globalised world.[18]

Lecture, Tutorials, and Analytical Skills

Is the goal of law faculties to produce graduates who can solve problems using analytical reasoning? If so, law faculties need to introduce curricula that emphasize the reasoning, analytical skills, and perspectives a lawyer needs to discharge his or her many responsibilities in this era of globalization. The academic side of the law is what creates great analytical minds that are essential for the practice of law. It is certainly not by accident that some of the great legal practitioners are also great minds.[19] Law school graduates need a theoretical perspective to evaluate law and legal arguments because, increasingly, they will be required to handle theory in practice. Legal analysis and reasoning might be obtained through a syllogistic approach to legal problems and a heuristic method for expressing legal arguments where students are encouraged to investigate, explore, and seek answers to legal problems.[20] Such an approach to teaching legal skills compels law students to analyse and critique the law and apply it to different facts.

The curricula in African law faculties appear to aim at achieving this goal. As mentioned previously, the Denning Committee's[21] recommendations for law schools in Africa specifically state that the normal pattern of legal education in the African territories should be a university degree in law at a law faculty followed by one year of practical training at a school of law.[22] The Denning Committee couched its reason for a practical training program in the following language:

In some parts of the world, a university degree in law is considered by itself to be a qualification to practice. We do not take this view. We think that practical training is a necessary part of the equipment of a lawyer just as it is of a doctor. After a man has taken his degree at the university, he should have a period of one year's practical training at a school of law where he can be taught such things as the drawing of pleadings, trust accounts and bookkeeping, practical conveyancing, etiquette and professional conduct.[23]

While the Denning Committee clearly intended law school to be a practical training experience, this has not been the case.[24] African legal training institutions use the lecture as the predominant means of instruction. As the main method of teaching law in Africa, lectures are heavily magisterial and commonly involve conveying knowledge to a large, passive audience.[25] "The weight of numbers and the very size of lecture venues make it difficult to engage in any dialogue."[26] The lecture seems to be an inapposite training approach in law school and runs counter to the law school curricula as originally envisaged. [27]

Since law faculties are supposed to teach theory, it might be argued that their use of the lecture is understandable. After all, "lectures, supplementary material, and outside student reading [are] needed" to teach positive law.[28] Also, according to economist Paul Samuelson, a 1970 Nobel Memorial Prize recipient, "as law professors [gain] ever more knowledge to impart to students, they are compelled" to rely on the lecture method.[29] Dean Cooper sums it up as follows:

"It seems likely that as faculty attempt to convey theory to students, they are relying more and more on lectures.”[30] Thus, although lectures are widely deemed "as the least effective teaching method because they involve passive rather than active learning, that may not necessarily be correct if the goal is merely to convey information.”[31] However, such a goal seems to focus on short-term knowledge.[32] Lectures do not develop or enhance the ability to analyse cases, statutes, and legal principles, and to apply them to new facts.[33]

This piece does not claim that the lecture pedagogy has no utility. The lecture method provides a sound framework for teaching legal subjects[34] and has produced great lawyers in Africa.[35] The argument is that the lecture pedagogy is most effective when complemented by other teaching methods like tutorials.[36] Through lecture and tutorials, law students gather information on legal issues, principles, and concepts, and analyse, critique, and apply them to other contexts.[37] As already noted, "lectures, supplementary material, and outside student reading is needed" to teach positive law.[38]

Tutorials are used to complement the lecture in most Anglophone African countries:[39] "Having compiled a written commentary on the law through lectures and lecture-directed research, the student is then expected to delve further into selected areas of the syllabus by way of 'tutorials'”.[40] Unlike lectures, "tutorials are meant to be interactive," and "the student is expected to derive a sophisticated understanding of particular legal areas via a written programme of directed reading and questions produced by the tutor”.[41] The exchange of ideas and the discussions that ensue during tutorials aid students' appreciation of the law and its application to solve problems.[42] Attendance at tutorials is usually compulsory, and the tutorials are used to monitor the progress of students.[43] Obviously, tutorial groups do not involve large student numbers.[44] With the current congestion in these African universities, however, tutorials have turned into lecture sessions, and, in many cases, they are not organised at all.[45] The lecture, therefore, remains the predominant mode of instruction at law faculties.

With the problems affecting the effective use of tutorials,[46] it might be time to review the pedagogical model of law faculties. "Teaching theory is a challenge, in part because theory itself usually entails significant practice components such as microeconomic analysis, social research methods, techniques of literary criticism, or historical method."[47] Africa's academic and practical two-tiered legal education system seems to offer a useful structure for teaching legal theory. Since African law schools are set up to deal mainly with practical legal skills, African law faculties have ample room to deal with legal theory. Complex legal theory can, therefore, be dealt with extensively enough to make it useful to the students.

Also, the tutorial system can effectively complement the lecture method in training students in analytical skills, and it should be reviewed and enhanced.[48]

"Too much lecturing is likely to encourage in students the tendency to privilege the instructor's views”.[49] Lecturers might put forward challenging views or criticisms, which stimulate debate and invite questions at natural pauses in the presentation.[50] Also, not having a right answer to write down can be extremely frustrating when trying to take notes. Law students want certainty. African law faculties should teach students that they cannot have certainty in law. The less certainty, the better the training and the more students must think for themselves. Tutorials facilitate such a process as they enhance analytical skills and are an important aspect of the teaching/learning process. Therefore, factors affecting the smooth utilisation of tutorials in the law faculties must be addressed.

Conclusion

Legal education in Africa should, at its core, be driven by African value systems and by African demand for ordered change and development. Instructed by the needs of Africa in this millennium, this article presents a broad conceptual framework for understanding the development, structure, processes, strengths, and weaknesses of African legal education to facilitate informed discussions on curricula and other reforms. In seeking a legal system that is sensitive and responsive to the needs of Africa, the legal training institutions should reconsider the structure and content of the curricula for legal education in Africa. This article suggests many areas for reform, including legal clinics, increased course offerings, pervasive perspectives on African law and juridical value systems as they relate to international law and the global legal order, collaboration, and development planning. African legal education might continue to fall short in many respects, and no effective reform can be implemented unless there is greater collaboration among the legal profession, academics, and policymakers. Consensus among these stakeholders regarding the reform needs of African legal education might enable them to take effective action.

Ultimately, Africa needs well-trained lawyers who have the highest levels of competence and responsibility, who are alive to the demands of globalisation with a global competitive posture, and who are in touch with local realities, needs, and aspirations. This paper has initiated a discussion on the complex issues surrounding African legal education reform, especially for the ‘New Gambia’, not only as a matter of academic discourse, but also as policy issues to be considered, analysed, refined, and implemented.

 

 

Law Clinic Commentary

By Fanta Kaba Jawara, a third-year student and Liason Officer for the UTG Law Clinic.

The Law Clinic is one of the main avenues that has increased my interest in the field of law, and has given me the opportunity to transfer the knowledge I have learned in my 2 years of studies at the University of the Gambia to students at Kotu Upper Basic School. This was through one of our projects coordinated by Mr Gray and Professor Tushaus. Under their guidance, we conducted a street law project to teach students about their rights and responsibilities under the law. This included inter alia the right to education, the right to citizenship, the right to respect and dignity, the right to be protected from economic exploitation. These are rights explicitly stipulated in the laws of The Gambia and in our 1997 Constitution.

The Law Clinic has also hosted professors from universities in the US, who conducted a session with the members of the Law Clinic on case simulations. This included how to assess, analyse and evaluate the details and facts of the case, what questions to ask, and how to separate the good and bad facts. This session was very interactive, as we had role plays for interviewers and interviewees. We also learnt how to address clients and the sort of advice to give.

Presenting during every session in front of colleagues has improved our advocacy and presentation skills. This is vital in the profession of law because as lawyers, one must be able to articulate properly, which is something you learn as a member of the law clinic at the University of The Gambia.

It would be very beneficial to the Law Clinic to have more lawyers come on board to guide and mentor the members of the Law Clinic as this would serve as an additional learning experience for the members before fully entering the legal profession. The Law Clinic is a stepping stone for law students as it is an opportunity to learn and experience the art of lawyering before becoming a lawyer.

 

 

Towards Participation of Hearing-Impaired Learners from the South: Implications of Article 24 of the Convention on the Rights of Persons with Disabilities (CRPD)

By Ngozi Chuma Umeh, who obtained the degrees LLB, LLM from Imo and Abia State University respectively, and LLD from the University of Pretoria South Africa. She is a lecturer in the department of Jurisprudence and International Law at Imo State University Owerri, Nigeria. The title of her doctoral thesis was ‘Realising the right to inclusive education for hearing-impaired learners in Nigerian Primary schools’.

Abstract

The World Federation of the Deaf (WFD) global reports show that the current literacy rate of persons who are hearing-impaired is very low, with the implication that most hearing-impaired learners after going through primary school, both in special and regular schools still tend to find it very difficult to read and write. They also do not do well in achievement scores. They remain emotionally and economically dependent on other people and find it very difficult to claim constitutionally specified rights as well as participate fully in society. The CRPD encourages us to contemplate how states can mutually take advantage of it. Hence, this paper adopts a prescriptive approach to focus on aspects of early child learning and formal and informal education as constituent parts of how arguments for inclusive education for hearing-impaired learners is conceptualised and developed. This article has implications, mainly towards participation of persons with disabilities, including hearing-impaired learners from the South. The term ‘South’ as used is synonymous with ‘transitional countries’ or ‘developing countries’. The term is technically used to differentiate technically advanced countries and recipient countries without the connotation that ‘North’ presents a perfect model in terms of the human rights of persons with disabilities, including hearing-impaired learners. For our purpose, the hearing-impaired is a word used to render visible the extreme kind of invisibility which is experienced by learners when they do not participate in society. This paper uses examples from Nigeria and South Africa to contextualise its arguments and it has three sections, excluding the introductory and concluding parts. The first section presents the relevance of inclusive education. Lots has been written about inclusive education, but thinking on its relevance for hearing-impaired learners is rare. Section two and three then explore issues of early child learning and formal and informal learning, as constituent parts of how arguments for the inclusive education of the hearing-impaired learner is conceptualised. The fifth section is the conclusion.

Introduction

In 2012, the World Health Organisation estimated that disabling hearing loss in children is worst in South Asia, Asia Pacific and sub-Saharan Africa.[51] According to the report, sub-Saharan Africa has approximately seven million children with disabling hearing loss. Additionally, the World Federation of the Deaf (WFD) global reports[52] show that the current literacy rate of hearing-impaired learner is very low, with the implication that most hearing-impaired learners after going through primary school, both in special and regular schools still tend to find it very difficult to read and write. Education for persons with disabilities is not prioritised in the financial planning in many countries in the South. For instance, most hearing-learners in Nigeria do not benefit from the general education system or disability-specific prerogatives.[53] Most Nigerian hearing-impaired learners are illiterate without opportunities for quality education. Consequently, they do not have a means to communicate because they often use foreign sign language rather than establish Nigerian sign language or even home signs/gestures. This is reflected in the fact that it is difficult to come across a hearing-impaired person occupying top executive positions or among members of the Nigerian National Assembly or any of the various state Houses of Assembly in Nigeria. Without a doubt, similar situations surely exist in other countries.

Relevance of Achieving Inclusive Education for Hearing-Impaired Learners

As highlighted earlier, the proportion of children with disabling hearing loss is significant.[54] It has also been indicated that the current literacy rate of hearing-impaired learners is very low.[55] Hearing impairment is usually not noticed and not discussed, yet it is a condition growing in magnitude and prevalence. This demonstrates the importance of inclusive education for hearing-impaired learners in all the countries in the world, and most particularly in South Asia, Asia Pacific and sub-Saharan Africa. There is no record that any country has achieved equality for and non-discrimination in education of all its citizens, including persons with disabilities and particularly for hearing-impaired learners. For example, in South Africa, you cannot measure discrimination well enough with the number of learners in primary schools when learners with disabilities, including hearing-impaired learners have not been registered as part of the general education system, and when they do not receive necessary accommodation within that system.[56]

The underlining idea here is that inclusive education, particularly concerning the inclusion of hearing-impaired learners, matters. This requires “actively seeking out children who are enrolled, and responding flexibly to the circumstances and needs of all learners”[57] from which the state will eventually benefit in the future. The following examples are from Nigeria and South Africa. They persuasively speak to the necessity for inclusive education for hearing-impaired learners.

“I lost my hearing at the age of one, following a fever. It was very difficult for my parents. It was only when I went to a primary school for the deaf that my parents began to think that I would have a future. I often have to travel many kilometres to attend school. I could not achieve high level of education because teaching methodologies were not adapted to my needs. After primary my school, due to low grades, my family decided that I would no longer attend school. During these years I taught myself to plait hair. Thanks to the owner of a local hair salon who saw me and took me as a suitable candidate to train in modern hair dressing. My apprenticeship of eight months strengthened my hairdressing skills. This became my profession”.[58]

“In South Africa, when I was working for my LLD, my housemate told me her elder sister who is a pharmacist has a hearing problem. She said that at first, her hearing problem came with a lot of challenges because there was no program supporting early identification and so the recognition and diagnosis of her hearing loss happened late, when she was taken to primary school. But because her parents understood that hearing-impairment does not mean having no future, they enrolled her in a special school for the deaf because she could not get a place in a regular school. They also got her a speech and language therapist. In the end her sister was able to achieve a high level of education because she had access to specialised professional in early child training and development. My housemate said her families difficulties would have been less if they got professional services for her sister earlier.”[59]

The above examples present persons with hearing-impairment as individuals wishing to lead a full and interesting life. It also shows that education is a powerful tool for hearing-impaired learners. Education equips people with the knowledge, self-reliance and valuable communication skills to surmount systemic obstacles and barriers to inclusion. Although there are special schools for hearing-impaired learners, the most widely advocated approach under the CRPD is inclusive education. This inclusive education approach can effectively take place either in a regular school or a special school.[60] This approach requires early specialist support, accommodations and the development of teachers’ skills in formal and informal education.[61]    

To better meet the needs of hearing-impaired learners it is considered that the integration of informal and non-formal learning approaches, and early child learning and language development in the formal education of hearing-impaired learners can secure full participation for hearing-impaired learners. Early child intervention services have particularly been implicated in the development of communication skills for the hearing-impaired learner for purposes of achieving inclusive education.[62] Several scholars emphasise that lack of early identification of hearing loss as well as delay in providing accommodations, affect the linguistic, social and educational development of the hearing-impaired learner.[63]

Accordingly, the conceptualisation of inclusive education for hearing-impaired learners in this paper promotes the appreciation of learner diversities as a way of enhancing and democratising learning opportunities. Informal and non-formal learning, which will be discussed in this contribution, is also implicated in soliciting personalised approaches about the inclusive need of every learner. However, in the broadest sense, one important remark to make about achieving inclusive education for hearing-impaired learners is that a combination of strong points of core universal concepts like the universal design learning,[64] early child care and education, and informal and non-formal learning would practically have positive consequences for hearing-impaired learners. Personalised approaches as conceived are expected to happen within the general education system. This is in connection with the call that the major aspect of inclusion is not the individualisation but the diversification of educational provision and the personalisation of common learning experiences.[65] Indeed the idea tilts towards universal concepts that contemplate diversity in the education of learners within the general education system right from the proposal stage.[66] The next section will discuss universal concepts like early child learning and language development and informal and non-formal learning approaches in turn.

Early Childhood Care Education

On considerations of morality, no one category of learner is better than the other, but rather, every child possesses the potential to learn and will learn differently from other peers. However, it needs to be stated that early childhood care and education is considered a critical step in equipping a hearing-impaired child for lifelong learning and development, as it increases self-sufficiency and diminishes a child’s risk of social-emotional academic challenges.[67] Early identification (from zero to six months) and early intervention are closely related and are part of the same process towards natural language development for the hearing-impaired.[68] Childhood usually extends from zero to the age of compulsory primary education which is about the age of five.[69] Consequently early childhood screening and education assists in exploring different facets of child development as well as learning in order to gain understanding on how to support infants and pre-school learning before the start of formal or informal schooling.[70]

Early child care and education can be understood as providing education in a learner’s most determinative years. This is in line with ‘facilitating integral human fulfilment’ as it encompasses shaping lives and directing choices as reason requires.[71] A child at this stage has been identified as steadily discovering different avenues to personal fulfilment.[72] The child then uses language not only to explain what he wants but to choose what he wants. Research has shown that early child care and education increases a child’s IQ scores by 4-11 points, improves childhood performance, increases vocabulary acquisition, improves cognitive skills as well as the ability to interact and work with classmates.[73] Likewise, from zero to two years has been stated to be a very significant period for cognitive and language development of every child.[74] It is also within this period that the hearing-impaired learner is possessed or dispossessed of practices and processes that advance and facilitate healthy language development.[75] 

Philosophically, the terms ‘early’ and ‘care’ considerably imply something additional to education in the sense of identifying the strength in every child, and moving the state and other stakeholders to adopt policies and practices that incorporate each learner’s needs and interests within the general education system soon enough. In effect, a lack of early language development and limited exposure to necessary communicative skills/modes consequently results in low academic performance and difficulties for the hearing-impaired learner at the primary and other levels of schooling.[76]

Studies have concluded that signed language is equivalent to spoken language in certain respects.[77] Hence language deprivation as Humphries et al teach is the disadvantage that the hearing-impaired learner suffers where he does not obtain adequate language input to acquire or learn, or be eagerly disposed to grow cognitive abilities early enough.[78] Early exposure to signed language from date of birth, however, diminishes this disadvantage.[79] Research has further indicated that early exposure to local/home signs and access to substantial language background developed along the line of language conversant to the hearing-impaired child enhances early vocabulary build up and increases opportunities for learning.[80] Another study has shown that children who are bilingual do not experience delays in the achievement of early language goals when they use their respective native/local languages.[81] More so, Berens et al, Jasinska and Petitto provide the understanding that the age of first language and first bilingual language exposure (a process of linking the first language and the second language) also influences to a greater extent the hearing-impaired learner’s ability to develop reading skills.[82] Consequently, it could be taken that visual learning if developed alongside early acquisition of local signed language contributes to the hearing-impaired learner’s literacy development.

Furthermore, research has shown that early visual language environment affects visual processing and increases skill in joint-attention that assists children to shift eye gaze which facilitates vocabulary development.[83] Early visual language exposure (home/local signs), together with early visual attention developed by the hearing-impaired child has also been found to contribute to reading and language development.[84] Studies in bilingual education further exemplify that cognitive advantage, the ability to manipulate languages, problem-solving, attention control and task exchange can be derived from learning two languages.[85] In addition, children that are bilingual have been found to have greater intellectual flexibility and understanding to language meanings than those who are monolingual.[86] Bilingual language exposure is synonymous with the use of signed language in a language that the learner is familiar with as first language and another spoken language as a second language. This approach is less confusing to learners.[87]

These findings illustrate that the hearing-impaired learner in Nigeria can also experience analogous academic benefits from learning local Nigerian signs and spoken English and signs through print, visual processing and listening (depending on the individual learner’s disposition).[88] Moreover, it has been demonstrated that early signed language acquisition does not inhibit hearing-impaired children from adopting or learning speech, rather early signed language acquisition enhances the possibility of spoken language development for children who prefer to use spoken language.[89] Accordingly, learning to read and write language is a very necessary educational component for hearing-impaired learners in Nigeria, and early exposure to signed language and other communicative modes has implications for cognitive and literacy development. 

Hence, there is a connection between local signed language and language of instruction in the pre-school and early stage of primary school, which is fundamental. It is at this stage that support for families and support for the learner between the home and the school begins. It should reasonably start by sensitising families and the society to appreciate the necessity for a holistic development approach for every learner in terms of substantial language exposure before school age. 

All children have a right to language[90] and that of the hearing-impaired child cannot be an exception. Signed language as visual language is an accessible language for most hearing-impaired learners and timely exposure to this language as early as possible is critical to education and academic success. Thus any hope for improvement in the education of the hearing-impaired learner lies in timely advancement of signed language and other communicative skills and modes. Achieving meaningful participation within Nigeria’s socio-economic and political environment for hearing-impaired learners will require appropriate early visual language input, visual learning and spoken English language. Here, spoken English language is considered necessary because of its use in Nigeria as formal language.

Early child care and education are practical approaches that enhance lifelong learning for a child, and has to be realised through policy and practice for every learner in Nigeria – particularly hearing-impaired learners and other learners with disabilities. It is also an augmentative process.[91] The state has the responsibility to ensure that its institutions, agencies and policy-makers in education recognise the importance of early visual language needs of the hearing-impaired learner, which has been noted to enhance progressive development for the hearing-impaired learner on a level commensurate with learners who hear.[92] In fact, this parallels Stein’s ‘disability human rights paradigm’ which like the prescriptive approach, argues for the development of individual talent based on individual worth and value.[93] Stein further lays emphasis on the society’s role in creating disability and its responsibility to compensate disability-based marginalisation.[94]  Admittedly, Nigerian citizenship belongs to us all and it is the responsibility of the Nigerian government to provide safeguards through regulations and policy in order to ensure that each hearing-impaired learner is accessing an education comparable with hearing learners’ academic outcomes. This is based on the moral imperative that every individual is entitled to the means necessary to develop individual potential.

Informal and Non-Formal Learning 

Along the line of lifelong learning and social development of children with disabilities as emphasised under the CRPD, informal and non-formal education is considered relevant under formal primary education within the general education system.[95] In construing informal and non-formal education as part of how inclusive education for the hearing-impaired learner is conceptualised in this study, it is pointed out that the idea is not to provide a detailed discourse or explore the assumptions underlying the concepts of informal and non-formal education. Rather, the centrality lies in establishing linkages with the different forms of learning (formal primary education, non-formal and informal learning) while highlighting the priorities of inclusive equality.

Thus, informal and formal learning as used in this context basically refer to the system of continuous learning, where the curriculum is expanded in line with capacity and confidence building, using various sources of communication, and where every learner is patiently motivated towards attitudes, principles and skills that are inclusion oriented.[96] In this light, there is the understanding that each learner is welcomed and is considered unique in terms of learning needs.[97]

Critically, people could see non-formal or informal learning as education for persons we perceive as ‘other’. But it is a legitimate form of education that is also for all and needs to be incorporated into formal education curriculum so that its benefits can be universalised.[98] To participate fully in the society is not only a struggle for vulnerable groups like persons with disabilities, including the hearing-impaired learner,[99] but is about human development and it is the struggle of any human person as has been aptly stated.[100] Historical evidence demonstrates that within and even outside the Nigerian context, individuals gain frequently from non-formal or informal learning.[101]

Kisanji argues that several approaches and methods believed to facilitate learning in contemporary schools have been the natural part of African indigenous education.[102] African indigenous education was considered informal but was collaborative, continuing and substantially diversified.[103] The wider community as well as the age grade and apprenticeship system encouraged learning practices which were woven around the political, financial, religious and physical life of the people.[104] Learning was responsive, democratised as well as remedial in emphasising relevance, respect for all, fairness and socio-economic and political justice. Within this process, individuals implicitly derive a purpose as it promotes skills acquisition and encourages self-reliance. It also facilitates the development of participatory values as well as basic standards of justice.[105]

Nigeria as an African state can still adapt and integrate these indigenous practices in the interest of primary school learners and especially for the hearing-impaired learner to promote learning.  Formal education has been found unable to cater to the needs of every learner as its curriculum is often directed at responding to the academic needs of the dominant majority.[106] Discriminatory attitudes and practices that promote unequal treatment in the education of persons with disabilities including the hearing-impaired is a major challenge that limits opportunities for them. Consequently, our values as a nation as well as socio-economic and cultural contexts ought to inform what learners are taught and how they are taught.

While appreciating the benefits of informal and non-formal education as an inclusive part of how the hearing-impaired learner should learn, it is necessary to emphasise that informal and non-formal learning should not become a substitute or an excuse for not abating discriminatory laws and practices inherent in formal education delivery for the hearing-impaired learner. It must also not be an alternative towards making the needed accommodations which are significant for the formal education of the hearing-impaired learner. In other words, we must try to create a balance. This balance lies in having the necessary knowledge to be both creative and flexible in the classroom .[107] The imperative of exemplifying commitment within the general education system is also implicated.[108]

Facilitating inclusive learning, imagining a feasible future and developing skills and potentials towards actualising what has been learnt is considered an objective good. By thinking about a feasible future for learners, we need to imagine a society that promotes integral human flourishing, appreciates difference and values human dignity and respect. This must be why Ferreira da Cunha in her natural law theory of social justice insisted that every citizen, has a right to free development of his person in recognition of his dignity. The scholar explains it thus: 

“A person, citizen A, B, C, etc with no discrimination has a general right to the free development of his/her personality and to the real, effective, practical recognition of his/her dignity. This obligates that those among A, B, C, etc., who have nothing or almost nothing by the strict iron logic of the juridical title should be helped (of course, being not a slave, one has at least some recognisable rights to himself or herself: it seems that nobody is absolutely deprived of everything...). They should not however, be helped by charity, but by solidarity, and not through the mere free will of private philanthropies, but through a political means: Social justice. Namely this help must be given by means of social security.”[109] 

Ferreira da Cunha’s perception reinforces the understanding of transforming the society and the general education system through supportive practices, culture and structures that accommodate diversity as many have accentuated.[110] Hence, it supports the normative directive that the general school system must be restructured to accommodate all learners, including learners with disabilities.[111]

The school system is expected to focus on training the abilities of children with disabilities, including the hearing-impaired learner instead of highlighting deficits. Other responsibilities involve awakening the interest of learners within friendly environments, improving teachers’ commitment towards all learners and the curricula content made learner centred.  The removal of labels like ‘mute’, ‘deaf mute’, ‘onye ogbu’ which means ‘a dumb person’ as the hearing-impaired is popularly referred to in the Igbo language in Nigeria is also considered necessary. As a nation, there is need to have insights concerning the future and the situations that individuals face so that committed plans and coordinated decisions can be made in other to harmonise individual opportunities.

Conclusion

From the foregoing discussions, it can be drawn that inclusive education for the hearing-impaired learner does not lie merely in placement options. It is therefore prescribed that achieving inclusive participation for hearing-impaired learners must start from the general education system. It is argued that equality and non-discrimination principles underscore any choice between a regular school and special school placement for the hearing-impaired learner. Ideas of the universal design learning, early child education and informal and non-formal approaches are also considered as constituent parts of how inclusive education is to be conceived for the hearing-impaired learners. Article 24 of the CRPD - in demanding for the inclusive education hearing-impaired learner - does not affirm the promotion of hierarchical difference. Due to the heterogeneity of hearing impairment, the impact or effect of hearing impairment on learners will depend not only on the type of hearing impairment but on the attitude and values of the community learners live in. Certainly, valuing the dignity and personhood of hearing-impaired learners require the socio-political and cultural environment to respond positively to human diversity.

Footnotes

[1]Under Pressure: a report on the rule of law in the Gambia; published by International Bar Association.

[2] Ibid.

[3] Ibid.

[4] Franklin Gevurtz & Elizabeth Rindskopf Parker, A Curricular Core for the Transnational Lawyer (2004), http://www.aals.org/international2004/Papers/Parker Paper.pdf (unpublished article) (on file with the McGeorge Law Review).  accessed 27 January  2018.

[5] See Louis Del Duca, Strategies for Internationalizing Law School Curricula: Challenges and Opportunities 2 (AALS Conference Paper, 2004), http://www.aals.org/international2004/Papers/DelDuca.pdf

(on file with the McGeorge Law Review). accessed 27 January  2018.

[6] University of Dar es Salaam, The Faculty of Law, http://www.lawafrica.comVLegalEducation/ go.asp?sectionlD=DAR-FAC (last visited January 2, 2018) [hereinafter Dar Es Salaam Faculty of Law] (on file with the McGeorge Law Review).

[7] Marbury v. Madison, 5 U.S. 137  Brown v. Board of Education, 347 U.S. 483 (1954).

[8] Compare, for example, the courses offered in the first year at the University of Ghana Faculty of Law (Ghana Legal System, Legal Method, Law of Contracts I and II, Constitutional Law I and H, Torts I and II, Immovable Property I and II, and Criminal Law I and II) with those offered in the first year at the University of the Pacific, McGeorge School of Law (Civil Procedure I and H, Contracts I and II, Criminal Law, Legal Process, Property I and HI, and Torts I and 11). See infra App. H; McGeorge Sch. of Law, First Year Courses (Required), http://www.mcgeorge.edu/Documents/catalogf2007-fa/2008-Course.-Descriptions.pdf (last visited February  6, 2018) (on file with the McGeorge Law Review).

[9] Faculty of Law, Chancellor Coll., Univ. of Malawi, Faculty of Law Course Outlines, http://www. sdnp.org.mwlruleoflawllawfacultylCourseOutline.htm (last visited February 6, 2018) [hereinafter University of Malawi Law Faculty] (on file with the McGeorge Law Review).

[10] Ibid.

[11] See Muna Ndulo, ‘Legal Education in Africa in the Era of Globalization and Structural Adjustment’, 20 PENN ST. INT'L L. REV. 487, 503 (2002) [hereinafter Ndulo, Legal Education in Africa]

[12] SeeIibid. at 493.

[13] Ibid.

[14] See McGeorge Sch. of Law, LLM & JSD Admissions: Frequently Asked Questions, http://www. mcgeorge.edu/x836.xml (last visited March 8, 2018) (on file with the McGeorge School of Law).

[15] Muna Ndulo, ‘Legal Education in Africa in the Era of Globalization and Structural Adjustment’, 20 PENN ST. INT'L L. REV. 487, 503 (2002)

[16] See Ibid. at 497 ("[Mlany [African] law schools have doubled their intake of students during the last decade while not making similar adjustments to numbers of faculty, libraries, etc.").

[17] Muna Ndulo, ‘Legal Education in Africa in the Era of Globalization and Structural Adjustment’, 20 PENN ST. INT'L L. REv. 487, 503 (2002) [hereinafter Ndulo, Legal Education in Africa]

[18] Ibid. (noting that the long-term needs of African countries will not be met by routine training of a purely technical kind, but only by imaginative programs).

[19] See Richard A. Posner, ‘The Deprofessionalization of Legal Teaching and Scholarship’, 91 MICH. L. REV. 1921, 1925-26 (1993) (providing a summary on the need for theory and interdisciplinary scholarship in the law school curriculum).

[20] Amy E. Sloan, ‘Erasing Lines: Integrating the Law School Curriculum’, I J. ASS'N LEGAL WRITING DIRECTORS 3(2002).

[21] Lord Denning, ‘Legal Education in Africa: Sharing Our Cultural Heritage’, 58 L. Soc'Y GAZ. 147 (1961);

[22] REPORT OF THE COMMIT'EE ON LEGAL EDUCATION FOR STUDENTS FROM AFRICA, CMND. NO. 1255 (1961) [hereinafter DENNING COMMITTEE REPORT].

[23] Ibid.

[24] Ibid.

[25] See Clive Walker, ‘Legal Education in England and Wales’, 72 OR. L. REV. 943,946 (1993).

[26] Ibid.

[27] Ibid.

[28] Ibid.

[29] Paul A. Samuelson, ‘The Convergence of the Law School and the University’, 44 AM. SCHOLAR 256, 270 (1974);

[30] See Byron D. Cooper, ‘The Integration of Theory, Doctrine, and Practice in Legal Education’, I J. Ass'N LEGAL WRITING DIRS. 50, 52 (2002).

[31] Ibid. at 55.

[32] Ibid.

[33] Ibid.

[34] Ephraim A. Vordoagu, The 50th Anniversary of the University of Ghana: An Occasion for Stocktaking and Redirection of Policy Objectives, NEWSLETTER (Univ. of Ghana, Faculty of Law), 1998, at 7 (discussing the problems that current overcrowding posse to students and lecturers in the University of Ghana).

[35] But, in almost all the African legal training institutions, the lecture method is never used

exclusively; rather, it is often complemented by discussions, questions, tutorials, etc.

[36] See Clive Walker, ‘Legal Education in England and Wales’, 72 OR. L. REV. 943,946 (1993).

[37] Ibid.

[38] Karl N. Llewellyn, Case Method, in 3 ENCYCLOPEDIA OF SOCIAL & BEHAVIORAL SCIENCES CASE METHOD 251, 252 (1930) [hereinafter Llewellyn, Case Method) ("Knowledge of the positive law is won under case discussion only at a heavy cost in time.").

[39] See Clive Walker, Legal Education in England and Wales, 72 OR. L. REV. 943,946 (1993).

[40] Ibid.

[41] Ibid. ("In a good tutorial, the student will be prepared to discuss the area of law being addressed and

to ask questions where areas of doubt persist.").

[42] Ibid.

[43] Ibid.

[44] Ibid.

[45] Ephraim A. Vordoagu, The 50th Anniversary of the University of Ghana: An Occasion for Stocktaking and Redirection of Policy Objectives, NEWSLETTER (Univ. of Ghana, Faculty of Law), 1998, at 7.

[46] Ibid.

[47] See Byron D. Cooper,’ The Integration of Theory, Doctrine, and Practice in Legal Education’, I J. Ass'N LEGAL WRITING DIRS. 50, 52 (2002).

[48] See Clive Walker, ‘Legal Education in England and Wales’, 72 OR. L. REV. 943,946 (1993).

[49] See Byron D. Cooper, The Integration of Theory, Doctrine, and Practice in Legal Education, I J. Ass'N LEGAL WRITING DIRS. 50, 52 (2002).

[50] See Clive Walker, ‘Legal Education in England and Wales’, 72 OR. L. REV. 943,946 (1993).

[51] WHO factsheet 2012 http://www.who.int/mediacenter/factsheets/fs300/en/ (accessed 24 October 2013).

[52] H Hauland & C Allen ‘Deaf people and human rights’ (2009) Report of the World Federation of the Deaf 34.

[53] See Unpublished: NC Umeh ‘Realising the right to inclusive education for hearing-impaired learners in Nigeria’ unpublished PhD thesis, University of Pretoria, 2017.

[54] WHO factsheet 2012 (n 1 above).

[55] Hauland & Allen (n 2 above)

[56] As can be drawn from a reading of Western Cape Forum for Intellectual Disability v Government of the Republic of South Africa & Another 2011 5 SA 87 (WCC). Where a High Court found the state policy (White paper 6) as inter alia violating the children’s right to human dignity and amounting to stigmatisation. In this case, the South African White Paper 6 policy excluded learners with severe and profound intellectual disabilities in the provision of schools and in the funding of their education.

[57] Dakar Framwork of Action, 2000.

[58] Experience of growing up in a rural Nigerian community, as described by my hair stylist.

[59] Experience of my housemate’s sister.

[60] For a detailed understanding of this approach see Umeh (n 3 above).

[61] As above.

[62] D Chen et al L ‘Lessons from project PLAI (Promoting Learning through Active Interaction) in California and Utah: Implications for early intervention services to infants who are deaf-blind and their families’ (2000) 7 Deaf-Blind Perspectives 1.

[63] Articulated from a reading of Karamicheal’s work see Unpublished: JP Karamicheal ‘Experiences of a deaf learner in a mainstream high school’ unpublished  PhD thesis, University of Johannesburg  2004 25; C Padden ‘Early bilingual lives of deaf children’ in I Parasnis (ed) Cultural and language diversity: Reflections on the deaf experience (1996) 99; T Humphries et al ‘Language acquisition for deaf children: Reducing the harms of zero tolerance to the use of alternative approaches’ (2012) 9 Harm Reduction Journal 1.

[64] This has been discussed elsewhere.

[65] BR Guijarro ‘Conceptual framework of inclusive education’ in Acedo C, Amadio M, & Opertti R (eds) Defining an inclusive education Agenda: Reflections around the 48th session of the International Conference on Education (2009) 11.

[66] As above.

[67] See General Comment No 4 on inclusive education, adopted by the UN Committee on the Rights of Persons with Disabilities 2 September 2016, CRPD/C/GC/4, paras 12(c) & 65; S Philpot ‘Too little, too small? The CRPD as a standard to evaluate South African legislation and policies for early childhood development’ (2014) 2 African Disability Rights Yearbook  51.

[68] C Yoshinaga-Itano & ML Apuzzo ‘The development of deaf and hard of hearing children identified early through the high risk registry’ (1998) 143 American Annals of the Deaf 416.

[69] International Standard of Education (ISCED) (1997) para 46; UNESCO Holistic Early Childhood Development Index (HECDI) framework: A technical guide (2014) 12.

[70] S Philpot ‘Too little, too small? The CRPD as a standard to evaluate South African legislation and policies for early childhood development’ (2014) 2 African Disability Rights Yearbook 55.

[71] Grisez et al ‘Practical principles, moral truth and ultimate ends’ (1987) 32 American Journal of Jurisprudence 119.

[72] S Neaum Child development for early childhood studies (2013) 23

[73] SW Barnett  ‘Long term effects of early childhood programs on cognitive and school outcomes’ (1995) 5 The Future of Children  25;  Neaum (n 20 above) 24.

[74] T Humphries et al ‘Language acquisition for deaf children: Reducing the harms of zero tolerance to the use of alternative approaches’ (2012) 9 Harm Reduction Journal 45.

[75] As above.

[76] See General Comment No 4 (n 15 above) para 34(b)&(c).

[77] LA Petitto et al ‘Speech-like cerebral activity in profoundly deaf people processing signed languages; Implications for the neural basis of human language’ (2000) 97 Proceedings of the National Academy of Sciences 13961; WFD Policy ‘WFD Statement on the Unification of Sign Languages’ January 2007http://www.wfdeaf.org/wp-content/uploads/2011/04/statement-on-the-unification-of-sign-languages-_january-2007_1.pdf. (accessed 19 December 2015).

[78] As above.

[79] As above.

[80] PA Ajavon ‘An overview of deaf education in Nigeria’ (2006) http://www.deafchildworldwide.info/document.mr?id=2875 (accessed 11 May 2015).

[81] LA Petitto & S Holowka ‘Evaluating attributions of delay and confusion in young bilinguals: Special insights from infants acquiring a signed and a spoken language’ (2002) 3 Sign Language Studies 4.

[82] M Berens et al ‘Learning to read in two languages; Should bilingual children learn reading in two languages at the same time or in sequence? Evidence of a bilingual reading advantage in children in bilingual schools from English-only homes’ (2013) 36 Bilingual Research Journal 35; KK Jasinka & LA Petitto‘How age of bilingual exposure can change the neural systems for language in the developing brain: A functional near infrared spectroscopy investigation of syntactic processing in monolingual and bilingual children’ (2013) 6 Development Cognitive Neuroscience 87.

[83] National Association of the Deaf ‘Position statement on early cognitive and language development and education of deaf and hard of hearing children’ https://www.nad.org/position-statement-early-cognitive-and-language-development-and-education-dhh-children (accessed 11 May 2014).

[84] C Chaberlain & R Mayberry ‘Theorising about the relationship between sign language and reading’ in CJ Morford & R Mayberry (eds) Language acquisition by eye ( 2000) 221.

[85] K Hakuta Mirror of language: The debate on bilingualism (1986); J Cummins Negotiating identities: Education for empowerment in a diverse society (2001); P Hauser et al ‘Development of deaf and hard of hearing students executive function’ in M Marschark & P Hauser (eds) Deaf cognition: Foundations and outcomes (2008) 286.

[86] As above.

[87] T Humphries ‘Schooling in American Sign Language: A paradigm shift from a deficit model to a bilingual model in deaf education’ (2013) 4 Berkeley Review of Education 7; P Crume ‘Teachers’ perception of promoting sign language phonological awareness in an ASL/English bilingual program’ (2013) 18 Journal of Deaf Studies and Deaf Education 464.

[88] Inspired from a reading of S Easterbrooks & S Baker Language learning in children who are deaf and hard of hearing: Multiple pathways (2001).

[89] K Davidson et al ‘Spoken English language development among native signing children with cochlear implants’  (2014) 19 Journal of Deaf Studies and Deaf Education 238; R Swanwick ‘The demands of a sign bilingual context for teachers and learners: An observation of language use and learning experiences’ (2001) 3 Deafness and Education International 62.

[90] CRPD, arts 21, 24(3)(a) & (b); National Association of the Deaf ‘Position statement’ (n 31 above). 

[91] CRPD, art 24(3)(a).

[92] National Association of the Deaf ‘Position statement’ (n 31 above).

[93] MA Stein ‘Disability human rights’ in D Weissbrodt & M Rumsey (eds) Vulnerable and marginalised groups and human rights (2011) 665.

[94] As above.

[95] General Comment No 4 (n 15 above) paras 8-9.

[96] See General Comment No 4 (n 15 above) para 12(g); M Omolewa ‘The practice of lifelong learning in indigenous Africa’ in Carolyn Medel- Aonuevo (ed) Integrating lifelong learning perspectives (2002) 13.

[97] As above; RM Torres ‘Lifelong learning in the north, education for all in the south’ in Medel- Aonuevo (n 44 above) 3-12. 

[98] Torres (n 45 above) 3-12. 

[99] As above.

[100] As above.

[101] Omolewa (n 44 above) 14.

[102] J Kisanji ‘Historical and theoretical basis of inclusive education’ Keynote address for the workshop on Inclusive education in Namibia: The challenge for teacher education March (1999) 11.

[103]As above; UNESCO Special needs in the classroom: Teacher resource pack (1993).

[104] Omolewa (n 44 above) 13.

[105] As above.

[106] K Somtrakod ‘Lifelong learning for a modern society’ in Medel- Aonuevo (n 44 above) 30.

[107] See General Comments No 4 (n 15 above) para 25.

[108] For these thoughts, I am grateful to Robert Dinerstein, of the American University Washington College of Law for providing these insights during discussions with him at the Disability Rights in an African Context Short Course 14-18 March 15, 2016.

[109] PF Ferreira da Cunha  Rethinking natural law (2013) 53.

[110] A Dyson et al ‘Making space in the standard agenda: Developing inclusive practices in schools’ (2003) 2 European Educational Research Journal 228 244; CG Ngwena ‘Western Cape Forum for Intellectual Disability v Government Republic of South Africa: A case study of contradictions in inclusive education’ (2013) 1 African Disability Rights Yearbook 142.

[111] See CRPD art 24, para 1; General Comment No 4 (n 15 above) para 8.

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