Access to justice: lawyers fight to be recognised as ‘essential’ workers in Covid-hit East Africa
The decision by authorities in some East African countries to omit lawyers from lists of ‘essential’ service workers when implementing Covid-19 containment measures has obstructed lawyers from practising and disrupted access to justice.
In late March, the governments of Kenya, Rwanda and Uganda announced lockdowns, curfews and other containment measures to prevent the virus spreading. As they did so, lawyers were omitted from the professions considered essential service providers or workers.
Yoweri Museveni, the President of Uganda, ordered non-essential workers to stay at home as the country’s seven-month lockdown began – keeping lawyers away from work. In late May, private transport was allowed, for those with access to it – those relying on public transport remained restricted.
Already underfunded justice sectors will no doubt have staggered under the increased burden of court closures and lack of legal counsel
Vice-Chair, IBA African Regional Forum
Pheona Nabasa Wall, President of the Uganda Law Society (ULS), tells Global Insight that ‘[The lockdown] did have a huge impact on lawyers’ practice and access to justice. While [the authorities] allowed other essential service providers, the lawyers were not considered.’
‘It became obvious that the government[s] didn’t understand the role lawyers play in society. No wonder the legitimacy of some of the [presidential] directives was put into question,’ she says.
Sylvia Namubiru Mukasa, Executive Director of the Legal Aid Service Providers Network (LASPNET), says that the exclusion of lawyers violated Articles 28 and 44 of the Ugandan constitution, which cover fair and expeditious hearings and non-derogable rights respectively.
‘[When] you are issuing [presidential] directives which were bound to be violated, you need the prosecutors, judges, magistrates and lawyers to be working to complete the chain of justice,’ highlights Mukasa.
Given their exclusion from the list of essential workers, lawyers couldn’t attend to the cases of hundreds of people who were arrested for violating Covid-related presidential directives.
‘The rights of accused persons to access lawyers, court representation and bail applications were all undermined,’ says Mukasa. The few cases lawyers could attend related to senior government officials and business persons – and then only by walking or cycling to attend to their clients.
The United States-based Human Rights Watch has accused the Ugandan security forces of using ‘excessive force’ when enforcing government-issued lockdown directives, for instance by beating fruit and vegetable sellers and motorcycle riders in the capital, Kampala.
‘While lawyers were not allowed to work, the security agencies were busy enforcing the presidential directives with a lot of zeal, which caused many arrests and [more] incarceration,’ explains Wall, who adds that this practice threatened to further spread the virus.
‘The lawyers were not able to access their clients who were in police detention and prison to prepare them for court appearances or bail applications. Our work was seriously curtailed,’ she says.
After nearly two months of continuous lobbying, in May, President Museveni allowed a quota of 30 ULS lawyers to provide urgent legal services to businesses and to handle urgent criminal matters.
‘To give us 30 was just not even a drop in the ocean. It didn’t address the problem and magnitude. We needed more lawyers to be working. We are 3,500 lawyers all over the country,’ says Wall.
In neighbouring Kenya in mid-April, Judge Weldon Korir ordered authorities in Nairobi to quickly place lawyers on the list of ‘essential services, personnel or workers’ to allow them to offer legal aid to those in need. The judgment was handed down following a petition by the Law Society of Kenya (LSK), which raised concerns about the legality of the country’s curfew order.
‘It is necessary for defenders and upholders of the rule of law to be extra vigilant whenever the state exercises emergency powers,’ stated Korir. ‘[Lawyers] also attend to persons arrested by the police. There is, therefore, merit in the contention by LSK that its members should have been exempted from the operations of the curfew order.’
‘It is disappointing to note that the Kenyan and Ugandan governments did not understand the need to include lawyers in the list of essential workers,’ says Nankunda Katangaza, Vice-Chair of the IBA African Regional Forum and co-founder of Hook Tangaza in London.
It’s imperative, she adds, that governments ensure the public can access lawyers and justice during this challenging period, with technology being used where possible to allow courts to continue functioning for those with online access.
‘Already underfunded justice sectors will no doubt have staggered under the increased burden of court closures and lack of legal counsel, not to mention the violations of human rights that were observed during the lockdowns,’ says Katangaza.
Julien-Gustave Kavaruganda, the President of the Rwanda Bar Association, tells Global Insight that the country’s Covid-19 lockdown has led to delays in dispensing justice.
‘We had issues [with] accessing clients and many cases […] have been delayed as a result of Covid-19,’ says Kavaruganda. He also highlights the expenses involved in protecting lawyers against the virus.
Wall of ULS highlights how the omission of lawyers from lists of ‘essential workers’ has significantly affected members’ livelihood and wellbeing.
‘It has really been a difficult time for the lawyers,’ she says. ‘We have struggling colleagues. The lawyers have had to lay off some staff and lost clients who had to move on with whoever was available.’
She adds that many firms’ offices remain locked up, while individual lawyers are struggling with rent arrears for the months that they’ve not been able to work. ‘There are a lot of lawyers who are going to be evicted by landlords because they have failed to catch up with the rent,’ explains Wall.
In April, Ugandan lawyers set up the COVID-19 Emergency Relief Fund for Lawyers to support colleagues in financial difficulties.
‘We had members collecting money for colleagues who were really doing badly,’ says Wall. ‘We collected some food from the Ministry of Disaster Preparedness and it was distributed to some young lawyers.’
ULS is now using new innovations to assist lawyers in coping with the impact of Covid-19, as well as assisting with their professional development and continuing legal education. ‘We have made a lot of [training] free of charge so that the lawyers can meet their regulatory requirements for their practising certificates,’ explains Wall.
‘Going forward, any country needs to make sure that the judiciary and legal fraternity in their areas are made part-and-parcel of their crisis management process and disaster preparedness because it’s a very crucial role we play,’ she says.