Johannes Hangula and Josefina Nghituwamata
WINDHOEK – Legal aid or legal representation is a welfare provision by the state to people who could otherwise not afford counsel from the legal system.
Legal aid also helps to ensure that welfare provisions are enforced by providing people entitled to welfare provisions, such as access to legal advice and the courts.
This is a foundation for equal access and enjoyment of right to a fair trial as it safeguards the fundamental fairness and public trust in the criminal justice process.
Established under the Legal Aid, Act 29 of 1990 in the Ministry of Justice, the Namibian government ensured that this statutory service lived up to its mandate of providing legal aid at state expense to indigent persons (i.e. those with inadequate means) to afford legal services of private legal practitioners to represent them in proceedings before the courts.
According to Moses Ndjarakana, Director in the Legal Aid Directorate that is administering the Legal Aid scheme in the ministry, the objective of the scheme is to ensure access to justice by providing equality before the law, the right to counsel and the right to a fair trial.
“Legal aid is essential to ensure equal rights for justice for all, especially for people with inadequate income also referred to as indigents. Applications for legal aid are considered through a means test and the merits of a case,” stressed Ndjarakana.
He further added that the process requires a legal practitioner to be instructed by the Directorate to carry out the mandate of legally-aided persons as per Article 12 and 95 of the Namibian Constitution as well as Legal Aid Act 29 of 1990, as amended.
“All clerks at magistrate’s offices, police and prison Warders, assists in completion of legal aid applications. The legal aid application forms are available at all magistrate offices countrywide and completed application forms should be submitted at the nearest magistrate office,” he explained.
Through this initiative, the Namibian government guarantees the right to fair trial in its national legal systems which ensures that justice is equally accessible to all Namibians regardless of their economic status
Access to legal aid service ensure effective legal counsel, and so, the accused’s right to a fair trial. Without access to legal aid, the right to counsel becomes meaningless for many accused persons, as it may prevent them from accessing a lawyer to defend themselves against the charges they face.
Consequently, Legal aid services assured to support the most vulnerable in our country.
The statistics for Legal Aid from the year 2013-2018 availed by the Ministry of Justice are indicating that a total number of 42 156 applications were received by the directorate, whilst 28 083 applications which is 67 percent of total applications were granted the legal Aid services at the cost of government from various towns across Namibia. The few remaining of 9 640 applications which is 23 percent of the total were regrettably declined, with 4 433 applications which are equal to 10 percent pending and in these financial years the statistics are revealing that 1 234 applications are concluded.
This service continues providing legal representation, at state expense to persons whose means are inadequate to enable them to engage practitioners to assist and represent them. More specifically, for citizens who do not have sufficient financial means, the provision of legal aid by governments will increase the likelihood, within court proceedings, of being assisted by legal professionals for free (or at a lower cost) or of receiving financial aid.
Based on the regulations made under the Legal Aid Act, 1990, it provides for a means test to be used to determine eligibility of the service. Simon Idipo, public relations officer at the Ministry of Justice, added that any person in Namibia have the rights to apply for legal aid in a civil or criminal case; however, the Director of Legal Aid has the discretion to grant or decline such an application.
“It is important that, any person(s) find themselves in the wrong side of the law, thus have the right to a fair trial despite of their financial means,” said Idipo.
Idipo further emphasised there is no timeframe when one should apply, but it is always advisable to apply as soon as one is aware of the need for legal representation.
“The lawyers who represent people in legal aid cases do not work for free; they are either government employees, or private legal practitioners who are paid out of government funds. Therefore, Legal Aid is regarded as central in providing access to justice by ensuring equality before the law, the right to counsel and the right to a fair trial,” concluded Idipo.
With the government determined to bring services closer to all its citizens, legal aid lawyers are employed by government and assigned to 26 magistrate courts in the country with plans underway to have legal aid lawyers at more magistrate courts.
To access this service; there is a prescribed form that the applicant should complete and hand it to the Director of Legal Aid for consideration. It takes a maximum of ten (10) working days from the date the application is received for the applicant to get his/her response, provided all the requisite information is provided to the director of Legal Aid at the ministry.
One can obtain legal aid application forms as well as the checklist from any magistrates court in the country, most police stations, at correctional facilities as well as at the Directorate of Legal Aid that is housed in Kisting House no 10565 at the Corner of Mungunda and Richard Kamuhuka Street, Katutura, Windhoek. The application form is also available on the Ministry of Justice’ website: http://www.moj.gov.na/contact-us .
* Johannes Hangula and Josefina Nghituwamata are Senior Information Officers in the Ministry of Information and Communication Technology, Directorate of Print Media Affairs: Media Liaison Services.