REPORT ON THE LEGAL REFORM PROCESSES FOR THE RECOGNITION OF PARALEGALS IN TANZANIA

Transcription

1 REPORT ON THE LEGAL REFORM PROCESSES FOR THE RECOGNITION OF PARALEGALS IN TANZANIA By: Ms. Angela K. Ishengoma and Comments of an Experts Meeting on the Paper Published by: Friedrich-Ebert-Stiftung Dar es Salaam, Tanzania 2011 The report can be found in soft copy on our website under Publications-working papers.

2 PREFACE This report centeres on the study conducted by Ms. Angela Ishengoma on Legal Reform Processes for the Recognition of Paralegals in Tanzania, which has been commissioned by our office of the Friedrich-Ebert-Stiftung (FES) Tanzania. The purpose of the study was to establish facts on the ground regarding the status of Paralegals in the Tanzania legal system. After completing the study in 2011 its findings have been discussed at a meeting of legal experts. The statements of comments have been added as part two to this report. This report is premised on the fact that most Tanzanians are extremely poor, especially those residing in rural and remote areas. Many of those Tanzanians are not able to hire the services of lawyers and advocates even when, thanks to awareness campaigns, they have a fair amount of awareness of their legal and human rights. The cost of hiring the services of lawyers is well beyond the means of most Tanzanians. Moreover, there is only a limited number of these lawyers available, compared to the number that is needed. To make matters worse, the few lawyers available are urban-based, partly because the Advocates Act prohibits advocates from representing clients in Primary Courts, which predominate in rural areas. In most rural areas, the immediate organ for dispute resolution are the Ward Tribunals. According to Honorable Pius Msekwa, the ruling party Chama Cha Mapinduzi s Vice Chairman (Mainland), in his presentation titled Reflections on 4 th Multi-Party General Elections of October 2010 the total number of Local Government Electoral/Wards is 3,335. This being the case, the need for Paralegals to assist the majority of Tanzanians to access legal aid services becomes imperative than before. The few voluntary paralegals available in rural areas could only have scratched the surface much as what they have done so far is a commendable job. They have been rendering free legal guidance and referral services for the poor and disadvantaged groups 2

3 at ward level and beyond. However, it is high time that the government establishes a law on Legal Aid Services and Paralegals in the country. Many thanks to Ms. Angela Ishengoma and all those who assisted her in the process of information gathering as well as the legal experts who made valuable comments to enrich this report. Dr. Stefan Chrobot Resident Director FES Tanzania 3

4 Table of Contents LIST OF ABBREVIATIONS... 6 PART ONE: STUDY... 8 CHAPTER ONE INTRODUCTION BACKGROUND... 9 CHAPTER TWO LITERATURE REVIEW FACTORS CONTRIBUTING TO THE EXISTENCE OF PARALEGALS SERVICES AND WORKING FIELDS OF PARALEGALS CHAPTER THREE STUDY OBJECTIVES, METHODOLOGY AND SCOPE THE STUDY OBJECTIVES METHODOLOGY AND SCOPE OF THE STUDY CHAPTER FOUR STUDY ANALYSIS AND FINDINGS : PARALEGALS AND THEIR SUPPORTERS : CHALLENGES FACING PARALEGAL WORK IN TANZANIA : DELIBERATE MOVE TO OVERCOME CHALLENGES FACING PARALEGAL WORK : RECOGNITION : SUSTAINABILITY CHAPTER FIVE EMERGING ISSUES FROM THE FINDINGS AND CONCLUSION : LEGAL FRAMEWORK OF PARALEGAL OPERATIONALIZATION : LEGAL REFORM PROCESS FOR RECOGNITION OF PARALEGALS

5 5.3 SETBACKS IN THE PROCESS OF PARALEGALS RECOGNITION : CURRENT SITUATION OF THE PROCESS : WHAT NEED TO BE DONE : CONCLUSION REFERENCES PART TWO: COMMENTS OF AN EXPERTS' MEETING 1. Comments on "Challenges Facing Paralegal Work in Tanzania" by Mr. Alphonce Katemi. 2. Comments on "Legal Reform Process for Recognition of Paralegals" by Mrs. Athanasia Soka. 3. Comments on "Current Situation of the Processes, and what Need to be Done" by Mr. Charles Mkude. 4. The Law Reform Commission of Tanzania Act [Principal Legislation] 5

6 LIST OF ABBREVIATIONS BAKWATA CBOs CCM CCT CEDAW DANIDA ENVIROCARE FES FGM GDS HIV/AIDS LHRC LRCT LSRP MoCLA NGOs Nola NORAD NOVIB PLs RFE SIDA SUWATA TAPANET TAWLA Baraza Kuu la Waislamu Tanzania Community Based Organizations Chama Cha Mapinduzi Christian Council of Tanzania Convention on Elimination of all forms of Discrimination Against Women Danish International Development Agency Environment, Human Rights Care and Gender Organization Friedrich-Ebert-Stiftung Female Genital Mutilation German Development Services Human Immunodeficiency Virus/Acquired Immune Deficiency Syndrome Legal and Human Rights Centre Law Reform Commission of Tanzania Legal Sector Reform Programme Ministry of Constitutional and Legal Affairs Non Governmental Organizations National Organization for Legal Assistance Norwegian Agency for Development Cooperation (Oxfam NOVIB) Microfinance Fund in Netherlands Para-Legals Rapid Funding Envelop Swedish International Development Agency Shirika la Uchumi la Wanawake Tanzania Tanzania Paralegals Network Tanzania Women Lawyers Association 6

7 TAWOVA TEC TLS WILDAF WLAC Tanzania Women Volunteers Association Tanzania Episcopal Conference Tanganyika Law Society Women in Law and Development Africa Women s Legal Aid Centre 7

8 PART ONE: STDY CHAPTER ONE INTRODUCTION AND BACKGROUND 1.1 INTRODUCTION In Tanzania, like in many other African countries, there is a wind of change. Change for increased recognition of human rights, democratic principles, good governance and the rule of law. Access to justice and indeed provision of legal aid is an important aspect of these principles. This explains why the legal system in Tanzania, and I believe in other countries, does recognize the provision of legal assistance as a basic right for its people. Despite this recognition, we all know that the demand is far higher than the availability of legal aid services. It is at this juncture that paralegals stand to play a very crucial role (Migiro A.R ) 1 No one in any society can claim to be able to live smoothly and comfortably in the absence of laws, law enforcement machineries, and law enforcers; in other words, humans can only thrive where there exists some form of law and justice dispensing system. Inevitably, laws and legal procedures largely tend to regulate socialization and interaction processes in any society. They do this by providing rights, protections, obligations, remedies and penal sanctions for every conceivable human act or omission. For one to be able to enjoy his/her rights and protections as provided for by the laws, and for one to secure remedies when ones legal rights are violated, such a person must be knowledgeable about which law and what legal procedure ought to be 1 Dr. Asha-Rose Migiro, the then Minister for Community Development, Gender and Children Affairs in Tanzania, and currently Deputy Secretary- General of the United Nations, when delivering a closing speech at the 2005 Paralegal Symposium. 8

9 followed in a given circumstance. One would also always benefit from being knowledgeable about which legal organ would be best suited for pursuit of given rights and remedies. Unfortunately, in Tanzania, like in many other developing countries, the law and procedures are complicated both in form and content. Hence, the law has become a domain of very few trained specialists called lawyers, notwithstanding the fact that law affects everyone. This is a situation where many people who are poor and cannot therefore pay for the specialized advice of lawyers tend to find themselves unable to access legal services. Those legal services offered in the market by the often few practicing advocates are not affordable and reachable where the poor majority are concerned. This is due to the fees charged by lawyers for one to access legal advice. They tend to be prohibitive if not discriminatory and more often than not these advocates tend to be urban based. In the light of this obvious reality, poor people, especially those residing in the rural areas tend to suffer greatly for inability to access legal services to resolve their legal problems. Since, it is not possible to station trained lawyers in all localities where people live, it is necessary to facilitate acquisition of basic legal knowledge within the communities by training semi-lawyers or para-legal-services-providers drawn from the respective communities. These paralegals with a tailor-made training in certain aspects of the law can function as the first contact person to those in need of legal services and do not know how to access such services. 1.2 BACKGROUND In 2004, the Law Reform Commission of Tanzania acknowledged the need for the provision of paralegal services by stating that currently, the provision of legal assistance and representation is oriented towards urban centres. There is neglect of the rural areas where most of the courts, particularly Primary Courts are situated throughout the country and where the majority of people live. This means that the bulk of work transacted in courts is in rural areas and at the Primary Courts level 2 (LRCT). This observation provides a rationale for an urgent need to explore ways 2 LRCT - Report on the Scheme for Provision of Legal Services by Paralegals, December, 2004 at Pg4 9

10 in which paralegals may be made available in a sustainable manner to poor people and marginalized groups in rural communities who could not hire the services of lawyers. Since early 1990s, NGOs, such as the Women s Legal Aid Centre (WLAC) among others, have noted the fact that the Tanzania government is not capable of providing legal assistance and representation to all poor sections of the Tanzanian society. Hence, NGOs have developed a special programme for training legal assistance volunteers (paralegals) who could render legal aid to the poor and vulnerable groups. To this end, the first paralegal unit was established towards the end of 1992 in Tanga as a pilot project. Other NGOs joined WLAC in this initiative to include: Legal and Human Rights Centre (LHRC), Environment-Human Rights Care and Gender Organization (ENVIROCARE), Tanzania Women Lawyers Association (TAWLA), Tanzania Women Volunteers Association (TAWOVA) and a few others. Unfortunately, up untill now, the work of paralegals in Tanzania, though acknowledged and accepted by the beneficiaries has not yet been appreciated by the Government. This is because the Government has not yet legally recognized paralegals as a distinct category of legal aid providers. This report, therefore discusses the findings of a study that was conducted with the aim of establishing the facts on the ground regarding legal reform processes that are likely to facilitate or place obstacles to the recognition of Paralegals. It should be noted from the beginning that the findings of this study focuses on formal paralegal units/centres formed by NGOs or civil societies and their members work as volunteers. 10

11 CHAPTER TWO LITERATURE REVIEW 2.1 FACTORS CONTRIBUTING TO THE EXISTENCE OF PARALEGALS As a matter of legal principle, legal aid services in Tanzania is only accorded when one is being faced with capital punishment cases. This is through the Legal Aid (Criminal Proceedings) Act No. 21 of which allows the judge or any presiding officer to appoint an advocate to represent an accused person in the matter against him/her at the State s expenses. However, such assistance is only restricted to capital offence murder. Conversely, in civil cases what the law provides is only remission of court fees when one files a case and not a guarantee of legal assistance 4. For this reason, it is therefore right to conclude that there is no state sponsored legal assistance in civil matters. In Tanzania it is common practice that people with legal and social problems seek assistance or advice from their close members of the family, clan leaders, or friends before they even go to neighbours or local leaders. However, due to increased awareness among the society about one s legal and human rights particularly from 1980 s onwards, some NGOs engaging in the area of rendering legal services (such as WLAC) started to use mobile legal aid clinics to try to reach different communities (in the regions) in order to sensitize them on their human and legal rights as well as to avail them with an opportunity to raise their specific legal problems and be guided accordingly. The legal mobile clinics strategy proved to have limitations and very minimal impact, hence necessitating WLAC to find an alternative way of meeting peoples legal aid service demand. In 1991 WLAC (by then SUWATA Legal Scheme for Women) sent the coordinator of the scheme Ms. Nakazael Lukio-Tenga to Harare to be trained on how paralegal workers render their 3 Chapter 21 [R. E. 2002] 4 For details see Rule 8 of the Court Fees Rules, GN.No. 308/1964 made under the Judicature and Application of Laws Act. 11

12 services and on how to mobilize the community to advocate for women s legal rights. The experiences gained were transferred to Tanzania and the first paralegal unit was formed in Tanga by the end of 1992 as a pilot project and gradually established other similar units in Morogoro, Katesh, Mbeya, Arusha, Shinyanga, Kigoma, Mwanza, Kibaha, Kilimanjaro, Dodoma, Iringa, Lindi, Mtwara, Songea, Kiteto, Kyela, Singida, Tabora, Bukoba, Kibaha (women & development), Rukwa, Mara, Kondoa and Geita. A total of 25 paralegal units all-over Tanzania Mainland have been established and are being mentored by the Women s Legal Aid Centre based in Dar es Salaam. WLAC s initiative motivated more NGOs to try to open up similar units in different regions of Tanzania as narrated below. During an interview with the officer of the Legal and Human Rights Centre (LHRC) 5, it was revealed that LHRC established nine (9) paralegal units in some districts of Tanzania Mainland in 1998 as a pilot project of Mass Education Programme. These districts include: Hanang, Mbulu, Babati, Ngorongoro, Tarime, Serengeti, Mvomero, Kiteto and Kilosa. The focus was on those districts where land disputes and violation of human (particularly women) rights such as Female Genital Mutilation (FGM) practices were highly reported. These units were supported by LHRC for 10 consecutive years. More units were established by the LHRC in 2007 following reports on killings of elderly women and albinos in Maswa, Bariadi, Geita, Ukerewe, Ludewa and Makete. Such killings were caused by superstition and due to women/girls sexual abuse and human rights violation in the mines and fishery industries. It was decided to establish paralegal units in those respective districts so that paralegals can sensitize and educate community members about their legal rights and the problems emerging from human rights violation. The Environment, Human Rights Care, and Gender Organization (ENVIROCARE) when contacted on the factors attributing to the establishing of paralegal units, explained that, many people in Tanzania assume that in Kilimanjaro region there is no human rights abuse especially 5 Ms. Gloria Mafole (LHRC Legal Officer) 12

13 for women and children. In order to prove that in Kilimanjaro the degree of human rights violation and gender based violence is high, a needs assessment was conducted in 1997, followed by five days awareness creation training on human rights issues in different communities 6. Between 1998 and 2006, ENVIROCARE had established Gender, Legal & Human Rights Committees in 585 villages of Kilimanjaro region. When asked the reason for not calling these committees paralegal units, Ms. Lema said that their organization was aware of the fact that in Tanzania there is no law recognizing the so called paralegal. Therefore, they decided to form committees which operate under the village leadership structures. Under these structures, community members elect some representatives and they get trained by lawyers on legal and human rights issues. ENVIROCARE then monitors their performance and strengthens their capacity through re-training. Besides, influential people and decision makers in the region (such as bishops, priests, police, doctors, pastors, regional administrative secretary etc) were invited to the meeting where the report of findings on human rights abuse in Kilimanjaro was tabled before the winding-up of the project in Since 2010 other similar committees have been established in 15 villages within three districts of Tanga region, namely: Mkinga, Handeni and Kilindi due to problems of land disputes and inheritance rights for women. Additionally, Tanzania Women Lawyers Association explained that they have established paralegal units in the districts of Njombe, 7 Mafinga (Iringa region) and Bahi (Dodoma region) as an effort to sensitize the communities on human rights and land rights for women. In both districts (though not isolated cases as far as Tanzania society is concerned) women are discriminated and denied of the right to own/access land and property. 6 Ms. Loyce Lema (Executive Director - Envirocare) 7 Now a fully fledged region. 13

14 The Tanzania Paralegal Baseline Survey 8, conducted by paralegals mentoring organizations for Legal Sector Reform Programme (LSRP) in 2010, concluded that paralegals contribute to good governance and democracy by highlighting; Paralegals increase people s legal knowledge and awareness as well as improve their access to judicial and administrative services. Paralegals often open up new social spaces for marginalized groups by supporting the foundation of community based organizations, strengthening their voices and leadership capabilities. In particular, this holds true for women who are often excluded from public life and whose self-confidence can profit from recognizing that they have rights of their own 9. This survey further argues that: In legal reform processes, the cooperation with paralegals can help to rapidly assess laws and legal practices, which require attention from the perspectives of marginalized groups. In some cases the paralegal work has conquered the attention of the judiciary, police and parliamentarians, and has influenced and accelerated reforms in laws and legal practices by feeding back the legal needs of the population. 10 As observed by Tanganyika Law Society (TLS), paralegal work intended to cater for the majority poor and the disadvantaged groups at the grassroots level. The initiatives to establish paralegal units at the community level started due to a great public demand of legal aid services caused by the limited number of advocates in remote and rural areas, exacerbated by ignorance of law, poverty 8 By the Legal Sector Reform Programme, August, Ibid at pg 6 10 Ibid at page 6 14

15 and inability of the government to reach the majority rural population to make justice more accessible 11 In a nutshell, one can highlight the following as some of the factors contributing to existence of paralegals in Tanzania: Increased legal and human rights problems. Increased awareness of people s legal and human rights. High demand for access to justice. Shortage of lawyers particularly in rural areas. Poverty as the majority of Tanzanians are poor and disadvantaged (women forming a bigger number) volunteer-paralegals continue to render legal services for free. Hence making it easier for the have-nots with legal problems to access justice. Communication problems (both distance to districts where lawyers are based, and sometimes language barriers for indigenous people to express their problems clearer to the lawyer). Paralegals are community-based and they have knowledge of peoples legal and human rights problems, since they are more close to the people they serve, community members recognize them and accept their support as they respond directly to their daily/expressed legal needs. Under the guidance of the mentoring organizations, paralegals complement government responsibility of ensuring that all citizens (especially the disadvantaged groups and the poor) enjoy equal right of access to justice/legal aid services. 2.2 SERVICES AND WORKING FIELDS OF PARALEGALS So far in Tanzania paralegals play a very significant role in facilitating and enhancing access to justice especially for the poor and disadvantaged groups. Tanzania laws have provisions that accommodate access to justice. The Constitution of the United Republic of Tanzania, part two, 11 Tanganyika Law Society

16 provides that 12 : All persons are equal before the law and are entitled, without any discrimination, to protection and equality before the law. Equality before the law as envisaged in the Constitution covers, among other components; equal access to justice by all. The same Constitution provides that The civic rights, duties and interests of every person and community shall be protected and determined by the courts of law or other state agencies established by or under the law 13. In order for this article to be effective, access to justice must be ensured to all persons of Tanzanian society and that is what paralegals strive to achieve. Access to justice normally aims at enabling people to invoke the laid down laws and procedures so as to realize their legal rights. Ways in which justice is accessed can be categorized into three major groups, namely:- a) Access in Person. This is done by a person who is pursuing his/her rights invoking the legal machinery to realize the rights he/she is entitled. Therefore this presupposes that one understands their rights; knows how to go about them and more importantly where to go. b) Access by Hiring Services of a Lawyer. This way normally depends on the financial ability of the client to pay for such services. Majority of Tanzanians are poor (especially those in rural areas and the disadvantaged) hence cannot afford legal services costs under this category. c) Access through Legal Aid Schemes or Services. Legal aid services under this category aim at helping poor people and marginalized groups who are not able to hire the services of lawyers to represent them, and are not able to represent themselves owing to their vulnerability. 12 Article 13:(1) 13 Article 13(3) 16

17 Apart from assisting the marginalized people and the vulnerable groups, paralegals have been playing pivotal role in educating/creating legal awareness among communities concerning peoples legal and human rights issues. This is done through seminars and sometimes by using theatre/drama performances within targeted community and on specific social/legal problem. This study on legal Reform Processes for Recognition of Paralegals in Tanzania noted that the common problems addressed by paralegals include:- land rights disputes, women s rights of inheritance, matrimonial cases, gender based violence/domestic violence, sexual abuse and early marriages for girls, corruption and HIV and AIDS. Moreover, due to high rate of sexual violence to girls and women (wife beating) peer refugees-paralegals (under WLAC s coordination) offer legal counseling and training on refugees rights in Mtabila and Nyarugusu camps in Kigoma. Paralegals help in enhancing women s and children s rights (as part of the marginalized groups women are the majority beneficiaries of paralegals services). They also assist clients in the bureaucratic procedures and they escort their clients in courts (though they do not represent them). They even guide/coach their clients on how to make their statements before the court or even on how to argue/express their cases and on how to behave in the court of law. In addition to that they make follow-ups on the progress of their clients cases. From the findings of Paralegal Baseline Survey above mentioned, paralegals serve as mediators between conflicting parties or refer them to traditional or modern dispute settlement institutions in the search for peaceful resolution. The report further reflects that paralegals refer clients to competent state services (such as the police, court, lawyers, judges) or to legal counseling centre (NGOs), which can support them, as a last resort to take their case to court 14. Lastly, paralegals are also involved in monitoring of human rights violations in their respective communities and encourage the community to take action. Concerning paralegals fields of work, the interviews conducted by this researcher with the representatives of different organizations where paralegals are affiliated revealed that, paralegals 14 The LSRP- Tanzania Paralegal Baseline Survey, August, 2010 at pg 4 17

18 have basic knowledge on existing laws such as the Law of Marriage Act of , inheritance laws, land laws, rights of the child, as well as essential information regarding International Conventions ratified/signed by Tanzania. For instance, the Convention on Elimination of all Forms of Discrimination Against Women (CEDAW) and other Human Rights Treaties. Apart from the above, through capacity building, paralegals have undergone leadership skills, counseling and guidance techniques, record keeping and report writing. Some have even attained elementary skills of monitoring and evaluation of their projects, as well as of fund raising and resource mobilization. Paralegals are also introduced to lobbying and advocacy techniques so that they can lobby decision makers within their districts and communities with regard to attitude change hence reduction of gender discrimination at all levels. Advocating for women s legal and human rights is so far an essential task of paralegals work in the country, regardless of where they are located. Thus, Paralegals constitute an important component of networking with other local organizations in the localities where they operate; particularly those local organizations sharing a similar interest in struggling for equal rights in accessing justice. 15 Cap. 29 [R. E. 2002] 18

19 CHAPTER THREE STUDY OBJECTIVES, METHODOLOGY AND SCOPE 3.1 THE STUDY OBJECTIVES The main objectives of this study were to establish facts about voluntary paralegal work in Tanzania and the legal reform processes, challenges/hindrances, towards their legal recognition. Specific Objectives The specific objectives of the study were to provide detailed answers to the following questions: What constitutes a paralegal in the Tanzanian context? What are the factors contributing to the existence of paralegals in Tanzania? What are the services and working fields of paralegals in Tanzania? As of now, who in Tanzania specifically are the paralegals and their supporters? What are the challenges facing paralegal work in Tanzania? What deliberate moves have been made to overcome the challenges facing paralegal work? What is the current legal framework within which paralegal work is operationalized? What legal reform processes favor the recognition of paralegals? What have been the setbacks in the process of paralegals recognition? What is the current situation regarding the process of paralegals recognition? The responses to these questions, derived from this study, are outlined in each of the subsequent sections. 3.2 METHODOLOGY AND SCOPE OF THE STUDY Methodology Face to face interviews with representatives of Paralegals mentor organizations (all based in Dar es Salaam) were contacted. Literature on previous research reports conducted regarding activities 19

20 of paralegals as well as on legal status of their existence was reviewed. Organizations contacted includes:- WLAC, LHRC, TAWLA, ENVIROCARE, Nola, TLS, as well as Women Advancement Trust (WAT). Scope: What constitutes a paralegal in Tanzanian context? In some countries like the USA the term paralegal is associated with certain formal qualification through education and work experience. However, in Tanzania a paralegal is defined differently depending on the NGOs and Civil Societies under whom such a paralegal operates. The Tanganyika Law Society (TLS), for example, defines a paralegal as: A non lawyer who has attended trainings given by lawyers and acquired the basic knowledge on different legal and human rights issues and who serves in the grassroots areas by providing legal advice, raises awareness on different legal and human rights issues and monitors human rights violation 16 The Women s Legal Aid Centre (WLAC) on the other hand, defines a paralegal as: A person who has basic knowledge on legal issues and who can serve the community at his/her own door-steps 17. Tanzania Women Lawyers Association defines a paralegal as: A person with basic knowledge on laws and comes from the community which he/she serves 18 (Mkinga G.) The Law Reform Commission of Tanzania categorizes the paralegals into two, based on the legal assistance they offer. First is that group of individuals who provide legal services through experience and /or acquired knowledge and they normally charge a fee for their services The Commission then refers to this group as the professional paralegals. Thereafter the Commission goes to state that The second group is the one organized by NGOs and this 16 TLS Jullu S. WLAC Executive Director 18 Mkinga G. TAWLA (Head - Legal Aid Department) 20

21 group is based on the provision of legal aid and so offers its services free of charge. This group is referred to as voluntary paralegals 19. Based on the above few definitions and the categorization made by the Law Reform Commission of Tanzania one can correctly define a voluntary paralegal (being a focus of this study) in the Tanzanian context as: a person based in a community and has gained elementary/simple knowledge about basic laws and procedures governing legal and human rights. The training is offered by competent lawyers, and the person uses this knowledge to educate and create awareness among community members This means that this person or group of people has to belong to the community they serve and need to have clear picture/understanding of the problems faced by those people so as to be accepted. This study found out that despite the fact that voluntary paralegals have acquired elementary knowledge on basic laws (especially those laws safeguarding women s and children s rights), the duration of training ranges from two (2) to five (5) days. Only a few were trained for two weeks. For that reason such paralegals need to be up-dated with the knowledge they acquired before more often so as to enable them fulfill their services better in the communities they commit to operate. There is also a general definition originating from organizations as indicated in the Tanzania Paralegal Profile paralegals are defined by organizations which they are affiliated as people with the following distinguished features: Non Lawyers Trained by lawyers and Social workers Know how to read and write (Literate person) Person with communication skills Influential, trustworthy and respected person Person with volunteerism spirit 19 LRCT- Report on the Scheme for Provision of Legal Services by Paralegals, December, 2004 at Pg

22 Ability to work in a team Attain the age of maturity Must be a resident within the district, division, and ward which he/she is working. 20 CHAPTER FOUR STUDY ANALYSIS AND FINDINGS 4.1: PARALEGALS AND THEIR SUPPORTERS As mentioned earlier in this report, the first paralegal unit in Tanzania was established by Women s Legal Aid Centre (by then SUWATA Legal Scheme for Women) in Tanga region. The Executive Director of WLAC Ms. Scholastica Jullu informed the researcher that the first support to open-up the Tanga Paralegal Aid Scheme for Women and Children came from a Norwegian organization known as NORAD. This foreign organization has been supporting several paralegals activities through WLAC since 1992 up to Other supporters of paralegal work under WLAC coordination mentioned to be the following: German Development Services (GDS) currently known as DED, Friedrich-Ebert-Stiftung (FES), Danish International Development Agency (DANIDA), the Norwegian Church Aid, The Royal Finish Embassy, One World Action (based in UK), African Women Development Fund, Sigrid, Rouse Foundation (based in UK), Well Spring (based in the USA), Foundation for Civil Society, and the Legal Sector Reform Programme. The above listed supporters enabled WLAC to establish new paralegal units in other regions of Tanzania Mainland, made follow-up visits on established units, re-trained paralegals on new legal developments and law amendments, prepared and produced simple literature (in a form of booklets, brochures, flyers, posters), organized paralegals symposiums and general annual meetings, helped paralegals to register their units either as NGOs or CBOs, supported payment 20 WLAC Tanzania Paralegal Profile, 2005 at page 1 22

23 of office rent and office equipment/materials, strengthened paralegals capacity on new skills such as resource mobilization and proposal writing, etc. For this reason, WLAC has won the trust of some religious institutions such as Baraza Kuu la Waislamu Tanzania (BAKWATA), the Christian Council of Tanzania (CCT) and the Tanzania Episcopal Conference (TEC), who since 2008 have been supporting WLAC to further establish (and train) more paralegal units in districts like Kondoa, Kilindi, Korogwe, Geita, Arusha urban, Mbulu and Karatu. In all these districts the focus of paralegal work is on the fight against Gender Based Violence in the respective communities. On the side of the Legal and Human Rights Centre, the Legal Officer responsible for Government Watch 21, informed the researcher that LHRC receives support for follow-up visits, train and re-train paralegals etc from various organizations. The partners include: SIDA, the Norwegian Embassy, NOVIB, Ford Foundation and the Basket Funding. Unlike the above two mentoring organizations (WLAC and LHRC), ENVIROCARE, from 1997 to 2006 continued to receive support from DANIDA for conducting needs assessment before the establishment of new gender, legal and human rights committees, training of committee members, organizing awareness raising seminars for different community groups, monitoring and evaluating committees activities. The discussion held between the researcher and the ENVIROCARE authority 22, when discussing, decided to adopt the term paralegal units for the new centers which they established in the three districts of Tanga. The costs for conducting needs assessment, establishing paralegal units and training of paralegals, production of training manuals, organizing and running radio programs, as well as training of paralegals on the use of moot-court has been received from one American supporter whom they said is an anonymous donor. 21 Ms. Gloria Mafole 22 The Executive Director of ENVIROCARE, Ms. Loyce Lema and Ms. Catherine Lymo Jerome (in house lawyer) 23

24 In TAWLA, an Italian organization known as IDOS was mentioned to be the only supporter of TAWLA s coordinated paralegal units as of 2006 to date. The support they received has been spent on establishing and training of paralegals and on conducting sensitization seminars for community members on Human Rights as well as women s land rights. The legal services offered by paralegals have attracted other supporters from within the regions and districts where they are based. The Foundation for Civil Society has played a very significant role in funding activities organized by registered paralegals particularly those focusing on awareness raising regarding legal/human rights, political participation, good governance, HIV and AIDS, etc. The National Organization for Legal Assistance (nola) supports some registered Paralegal Legal Units in areas close to their centres. During an interview with the official from nola 23, has the following to say nola has been cooperating with registered PLUs in Shinyanga (PACESHI), Magu (NABROHO), Tarime (SHEHABITA), Mtwara (Mangonet), Lindi (LIWONET), Kyela (SWOLO), since 2009 nola offers them training on record keeping and strengthen their capacity by up-dating them on new legal developments. In addition to that, nola receives difficult/referral cases from paralegals and assists the referred clients to file their cases in relevant courts. For example in the year 2010, nola attended a total of 4670 clients (3973 males and 697 females) referred to them by paralegals. Other supporters of Paralegal work in Tanzania include: Women in Law and Development in Africa (WILDAF), Rapid Funding Envelop (RFE), Help Age International, Action AIDS, MS Tanzania, just to mention a few. 23 Mr. Charles Mkude (Advocate and Programme Manager for Legal Aid & Strategic Litigation, NOLA) 24

25 4.2: CHALLENGES FACING PARALEGAL WORK IN TANZANIA Information gathered during this study and report on Tanzania Paralegals Baseline Survey observed a number of challenges facing paralegal work in Tanzania: Despite the fact that they play a crucial role, paralegals are facing many challenges in implementing their activities in the community. Some of these challenges include: they do not receive recognition from the legal system nor the government, they are mistrusted by other members of the community, they have a very limited level of awareness and knowledge of legal issues, and they are viewed as providing services of limited value 24. Other challenges raised in the baseline survey report are: paralegal concept, paralegal recognition, issues of training in relation to duration and curriculum and the question of outreach. The report further noted that some paralegals do not have reliable offices and those who have do not open offices daily, hence making it difficult for clients to access paralegal services on daily bases. During direct interviews with representatives of mentoring organizations of paralegals most of them had similar conclusions on the challenges facing paralegals. They range from: Lack of legal recognition. Lack of sustainability due to limited sources of funding (majority rely on membership contributions on monthly basis and depend on mentoring organizations for material assistance). Low morale/commitment due to volunteerism/lack of motivation. Most of them are not conversant with current legal developments. Lack of leadership skills. Lack of policy/comprehensive legal framework governing provision of legal aid (by the government). Law on legal aid and paralegals is non-existence. 24 The LSRP- Tanzania Paralegal Baseline Survey at pgs 1 & 27 25

26 Tanganyika Law Society summarizes the above challenges by stating; Despite the independent efforts made by paralegals and various legal aid institutions to provide legal aid to the poor and marginalized, paralegals do not have the needed legal recognition to freely operate in Tanzania and therefore, face many obstacles in the discharge of their services. This means that paralegals often operate in an environment where they face many challenges from law enforcement and other authorities : DELIBERATE MOVE TO OVERCOME CHALLENGES FACING PARALEGAL WORK 4.3.1: RECOGNITION NGOs There have been joint efforts between mentoring organizations and the paralegals to try to reduce some of the challenges and obstacles hindering the smooth running/provision of legal aid services by paralegals. On the question of legal recognition, the founding organizations for the first time organized a National Paralegal Symposium in the year 2005, they invited guests from various countries where paralegal services are accepted/recognized to come to Tanzania for the purpose of experience sharing regarding the processes for recognition of paralegals in their respective countries. Delegates came from Kenya, Uganda, Malawi, Zambia, Zimbabwe and South Africa. Relevant government departments and institutions were also invited and participated. One of the objectives was to share experience and identify common issues in order to promote the role of paralegals in Tanzania, as well as to identify important issues for advocacy towards promotion of their role Tanganyika Law Society WLAC Proceedings Report on the National Paralegals Symposium, 2005, at pg 1 26

27 This symposium was one of the strategies for the founding organizations of paralegal work in Tanzania to advocate and influence policy makers to recognize paralegals as one of the stakeholders in the legal cadre. All participating stakeholders also identified and discussed areas of interventions and the lobby mechanisms. Apart from the above step, in the same year (2005) relevant information on paralegals was collected from all NGOs where paralegals are affiliated and the Tanzania Paralegal Profile was compiled (under the coordination of WLAC). Then it was distributed to all interested parties (including government institutions responsible for legal matters) and supporters of paralegal work within and outside the country. The aim of this exercise was to provide further information about paralegals in terms of where they are located, what they are doing, when they started their work and their main focus. It was assumed that the information contained in the Tanzania Paralegal Profile could have given an idea/hint of who they are and where paralegals are operating for the government to consider their legal recognition. Paralegals for Community Justice was the message conveyed throughout the profile (as a slogan for advocacy campaign). Paralegals During the second National Paralegals Symposium organized in 2008 and attended by more than 130 paralegals, one of the important issues raised was how to combine paralegal efforts and advocate for their own recognition. They agreed to form a paralegal network (under WLAC guidance). The envisaged network has been formed and registered since 2010 under the Companies Act 27, as The Tanzania Paralegals Network Ltd (TAPANET). One of the objectives of the network is to have common voice on issues related to development of paralegals in Tanzania Cap. 212 [R.E. 2002] 28 TAPANET 2010 at page 2 27

28 They have also been trained through seminars and workshops on how to advocate for their recognition. Others: Ever since 2007 the LHRC has been working towards establishment of a University to be known as Bagamoyo. The same has eventually been registered this year (2011). The University of Bagamoyo is a joint venture between the LHRC and the Tanzania Legal Education Trust (TANLET). According to the interview with LHRC Officer 29, one of the objectives of the University of Bagamoyo is to train and up-grade the paralegals up to a Certificate/Diploma levels. This will help to overcome the issue of little legal knowledge by PLs and contribute to the facilitation of their legal recognition as they will now be trained and acquire basic legal knowledge : SUSTAINABILITY In order to overcome the challenge of sustainability, the baseline survey on paralegals considers the issue of succession plans as of great importance. It recommends that: Succession plans should be deliberated adopted and implemented which recruit young people to engage in paralegal work since the majority of the current paralegals are of old age. Financial support needs to be put in place so that paralegals are able to focus exclusively on paralegal work. Currently, the majority of paralegals need to engage in economic activities to support themselves (the survey noted). In order to decrease the amount of paralegal attrition, further training and support is needed to improve working conditions. Further, the introduction of a motivation scheme may be helpful Ms. Mafole 30 The LSRP -Tanzania Paralegal Baseline Survey at pgs

29 Responding to the question of sustainability during the interview by this researcher, the official from WLAC 31 responded by stating that, WLAC has been requesting funds from its development partners and distribute it to six (6) paralegals (affiliated to WLAC) per year. Such support helps the receiving paralegals to buy office materials and be able to make home visits of their clients. It was also said that since majority of WLAC s paralegals are registered either as NGOs or as CBOs and they have been trained on how to prepare Strategic Plans for their units/centres which they use for fund raising/resources mobilization. Regarding other challenges, there have been measures from both mentoring organizations and paralegals coordinators to try to look for possible ways of combating/addressing them. It was reported by interviewees that through capacity building workshops/seminars and Back-up trainings of between 5 & 10 days, paralegals have gained additional skills on leadership and facilitation of meetings, as well as on team building. Generally, the baseline survey reported the majority of the paralegal centres have never received continuous financial or technical support from the government. Only 9 of the respondents interviewed (or 6.4%) noted that at some point, they had received some form of financial support from government through District Councils 32. Since paralegals do not have reliable source of income to enable them render their services smoothly, it is obvious that majority would be tempted to engage on private income generating activities rather than spending the whole week on voluntary work which is not even recognized. 31 Scholasticca Jullu - WLAC Executive Director 32 The LSRP Tanzania Paralegal Baseline Survey at pg22 29

30 With a guarantee of financial support, one would expect that paralegals reach more clients (with legal problems) because they will have the means to follow-up and conduct legal sensitization activities in their communities. CHAPTER FIVE EMERGING ISSUES FROM THE FINDINGS AND CONCLUSION 5.1: LEGAL FRAMEWORK OF PARALEGAL OPERATIONALIZATION The current system of providing paralegal services is uncoordinated and /or not institutionalized. The on-going trend is that activities of paralegals are self regulated in the sense that they are done according to the wishes of the providers. Given the fact that activities of paralegals are neither coordinated nor institutionalized, it calls for and created a need for legal recognition and institutionalization. The study found out that despite the fact that paralegals offer their services for free, most of them decided to register so that they can formally conduct some activities either as NGOs or CBOs. With an exception of those operating under the structures of village leadership i.e. those formed with the assistance of Envirocare (in Kilimanjaro region) and those mentored by TAWLA (in Njombe and Bahi districts), the rest are either registered or are in the process for registration as NGOs or CBOs. The baseline survey also noted that some paralegals take longer to register because they prefer to operate as informal groups then register as they grow. Although the first paralegal centre was launched in 1992, it took eight years before the first paralegal group decided to officially register itself. The survey indicates that paralegals prefer to operate as informal groups and later as they grow, the need to formalize becomes clearer. The survey found that the majority of the respondents indicated to have acquired legal registration (65.7%) while 32.9% have are not 30

31 registered. Most of those which are not registered indicated having plans to register in the future (33 out of 46) 33. As pointed out earlier in this report that so far in Tanzania there is no law on legal aid and paralegals, this means that there is no governing procedures or regulations for paralegals operationalization. There is no mechanism to coordinate training of paralegals and promote/categorize them accordingly. 5.2: LEGAL REFORM PROCESS FOR RECOGNITION OF PARALEGALS The report on The Scheme for Provision of Legal Services by Paralegals presented to the Minister for Justice and Constitutional Affairs 34, revealed that there have been government initiatives to deal with Private Legal Practice in Tanzania even before the existence of voluntary paralegals (which is the focus of this study). According to this report, government concerns over private legal practice can be traced as far back as It is reported that the overall objective of the study was to examine the role and activities of paralegals in the Tanzania legal system, to review their efficacy and effectiveness and to recommend the introduction of an appropriate and benefitting legal and regulatory framework Among the recommendations made by the team of researchers to the Commission and which justifies the importance of the introduction of the paralegal cadre focused on the question of legal representation by advocates and paralegal personnel in Primary Courts, both in urban as well as in rural areas. The team observed that paralegals be allowed to represent parties in Primary Courts presided over by any competent magistrate provided that such paralegals act as agents of the respective parties and not purporting to be advocates The LSRP- Tanzania Paralegal Baseline Survey at pg At DSM on 22 nd December, LRCT - Report on the Scheme for Provision of Legal Services by Paralegals, December, 2004 at Pg. 31

32 The work/services performed/rendered by paralegals respond to the expressed legal needs of the poor majority and the disadvantaged groups due to the fact that legal demand in Tanzania is on the increase while the supply of lawyers for legal assistance and representation is low. It is because of this fact that another strong recommendation made by the team of researchers to the Commission was on the establishment of an independent regulatory body for paralegal cadre to oversee the following: a) the establishment of a paralegal cadre, b) accreditation of training institutions, c) curriculum for paralegal training, and d) establishment of code of conduct for paralegals 36. It is in the light of the actual situation that the Commission admitted the reality by stating The Commission however believes that the provision of paralegal services by professional as well as voluntary paralegals is still a necessary intervention that is needed to fill the existing gap in the provision of legal services at the grassroots level 37 At different occasions high ranking government officials such as Ministers, Permanent Secretaries, Chief Justices, etc. have been heard making statements or addressing groups of Tanzanians by showing positive signals and commending paralegal work in helping the poor and disadvantaged groups to access justice particularly those in rural and remote areas: Madam Chairperson, it will be recalled that the Legal Task Force in its report in 1996 was concerned very much about the fact that majority of Tanzanians, particularly those in rural areas, had little or no access to legal services. The problem is still in existence today though, to a certain extent, legal aid groups have started to promote and undertake legal literacy campaigns, conduct legal aid clinics and training of paralegals. A large number of people still do not enforce many of their rights entrenched in the national constitution due to poverty or ignorance. They cannot access the courts because they cannot afford the costs of enforcing those rights. In many of our countries justice is very unfortunately, an expensive process. 36 Ibid at Pg Ibid at Pg