Leaving the woods to see the trees: Locating and refocusing the activities of non-state actors towards the effective promotion of access to justice of persons with disability

Summary

The article conceptualises the place of non-state actors in international law and the important roles they ought to play if functioning well. It argues that most non-state actors remain underutilised in the realisation of their mandates or objectives that they are created to achieve. It has been argued that this possibly is premised on the paucity of human rights education, knowledge of international human rights instruments and their application in national laws. Considering the wide range of perceptions of non-state actors the article examines the emergence of law clinics in several Nigerian universities as non-state actors. It argues that the lack of engagement and adequate training of law clinics in enhancing access to justice of persons with disabilities as envisaged in article 13(2) of the Convention on the Rights of Persons with Disabilities is responsible for the underutilisation of law clinics as non-state actors. In addition, the article advances the argument that the continued poor engagement is also linked to a lack of appreciation and understanding of the relevant human rights instruments, especially with respect to the CRPD. Consequently, the article construes non-state actors as effectively being in the woods (human rights discourse) but unable to effectively see the trees (enhancement of access to justice of persons with disability). The article adopts a restricted quantitative methodological approach to collect and analyse data (knowledge and perception) by engaging in informal unstructured interviews with law clinic coordinators and students in Nigeria as it pertains to the question of access to justice of persons with disabilities. The article proposes that law clinics should be effectively positioned to make a greater impact on access to justice of persons with disabilities. To achieve this the article proposes the development of quality human rights education to enhance, among other things, the understanding and perception of the disability concept, access to justice, and an appreciation of relevant human rights instruments.

1 Introduction

The challenges that face people living with disabilities are not in doubt. The obvious disadvantages range from discrimination to a lack of reasonable accommodation. Persons with disabilities remain at the lower rung of societal disadvantages. In the discourse about persons with disabilities the various forms commonly discussed are disabilities such as hearing impairment, sight and mobility. The limited or low discourses of challenges of persons with mental disabilities suggest that persons with mental disabilities in most circumstances are not countenanced within the general theoretical discourse.1

The concept of non-state actors generally in international law suggests the involvement of groups that engage in either war or other obnoxious activities in and outside a state.2 Non-state actors also engage in business activities that impact the realisation of human rights in society. For instance, the International Monetary Fund (IMF) and other international institutions are also argued to be subject to international law regulations.3 In early times the question as to liability of non-state actors has led to much debate. It is argued in several quarters that non-state actors as subjects of international law should also be part of treaty making and negotiations.4 On the other hand, the extent to which states should be held responsible and accountable for the acts of non-state actors is another unresolved aspect in international law. The article advances the concept of non-state actors to include the activities of non-governmental organisations (NGOs) and the extent to which they should engage in the question of access to justice.

Access to justice generally deals with the ability of an aggrieved individual to obtain reprieve for any form of injustice. It deals with both substantial and actual access to the architecture of the rule of law in a state.5 A major factor affecting persons with mental disabilities is the perception and assumption that these persons lack the ability to make decisions for themselves. According to Ofuani, the challenge this may present is surmountable by relying on the provisions of article 12 of the Convention on the Rights of Persons with Disabilities (CRPD).6 It therefore is imperative to interrogate the veracity of this claim. Assuming this position to be true, the questions arises as to what efforts are effectively put in place to aid the realisation of access to justice of persons in this category.

An emerging concept in human rights advocacy and education is the growing influence of law clinics. Law clinics more often are located in law schools and have contributed immensely to the growth in driving the human rights concerns of people.7 Law clinics generally have been noted to support the work of the United Nations (UN) and regional human rights entities in several human rights discourses.8 The effectiveness of the law clinics generally has been adjudged as being excellent, but this not ignoring the fact that several areas of impact still loom large. The basis on which they are properly placed but unable to achieve more than they have done could be traceable to the issues of limited knowledge. Based on this, it might be safe to suggest that the law clinics are well located within the woods of human rights discourse but remain unable to see the trees. The article will set out to ground the discourse of access to justice of persons with mental disabilities and the role law clinics can play in enhancing this. The article is structured in five parts, dealing with the introduction; the conceptualisation of non-state actors as agents of international law application; and a discourse on applicable international instruments that deal with access to justice and mental disability. In addition, the position of the law clinics and the impact they are capable of having are discussed in light of collated data. The article finally makes recommendations and draws conclusions.

2 Access to justice and international law

In conceptualising the term ‘access to justice’, it is important to underscore the key components of the concept. In the first place the term ‘justice’, as most social phenomena, defies a definite definition. What might be called justice to A invariably could not mean justice to B. For instance, in the field of transitional justice a debate remains about which should be projected, justice or peace.9 While many scholars will advocate peace, some advocate justice. However, a seemingly acceptable premise is to appreciate that whichever approach is followed, the position of the victim must be appreciated and protected.10 Another important component of the justice concept is the representation of fairness, accountability and equity. These notions also are not devoid of the challenges facing the concept of justice. With this challenge in mind, Lord Denning, as he then was, advocated in the popular case of UAC v Macfoy11 that justice must not only be done but must be seen to be done. Justice, broadly, covers criminal justice, civil justice and administrative justice, and can be exerted either via reliance on established systems or via self-help. The article deals more with the formal system of justice in line with state creations and the rule of law. The question of access mainly deals with the process through which individuals are able to access state-created structures in the quest to find justice when they feel aggrieved. Issues affecting access to justice are identified as a lack of funds, language barriers and institutional bureaucracies.

In international law the concern about the concept of access to justice can be traced back to the Universal Declaration of Human Rights (Universal Declaration).12 This instrument sets out the twin tenets of a fair hearing, known as a person being heard in his case and a person not been a judge in his own matter. These two principles were further enunciated in the International Covenant on Civil and Political Rights (ICCPR).13 While these provisions deal with access to justice of accused persons in the criminal justice system, the same principles invariably can be extended to other bases of the pursuit of justice. At the regional level the African Charter on Human and Peoples’ Rights (African Charter) also provides that no individual is to be prevented from having access to justice.14 The African Commission on Human and Peoples’ Rights (African Commission) also has developed a guide to access to justice, namely, the Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa.15 All the instruments enumerated above generally have provisions that are non-specific to access to justice for persons with disabilities.

However, despite the perceived shortcomings mentioned above, it is important to commend the provision of the Sustainable Development Goal (SDG) that seeks to ensure a just, peaceful and inclusive society.16 Interestingly, for the realisation of the goal, the need to ensure that strong institutions are built is underscored. In this respect the position buttresses the need to ensure the establishment of law clinics as institutions capable of driving this aspiration.

The challenges facing persons with disabilities in every facet of society formed a core concern for the international community and subsequently heralded the entry into force of the CRPD. The Convention’s core interest was to ensure that persons with disabilities are not sidelined in their day-to-day living. The CPRD particularly makes provision for the right of access to justice of persons with disabilities, which is discussed in the next section of the article. As a follow-up to the CRPD, it was important to ensure that the pursuit of justice was done on an equal footing. To this effect, it has been noted that ‘equality before the law is a basic general principle of human rights protection and is indispensable for the exercise of other human rights’.17 Accessibility is as important as equality. It is argued that a fair hearing, as advanced in international law, cannot be possible where equality is denied. The importance of access is stressed in General Comment 9 which provides definite and specific parameters for grounding accessibility to justice of persons with disabilities.18

3 Law clinics as non-state actors and scope of operations

Law clinics in Nigeria are anchored on the Legal Aid project of the country to make justice accessible to every citizen, especially the indigent.29 The legal aid clinics are creations of the state through legislation. The major legislation on legal aid in Nigeria is the Legal Aid Act 2011. The main aim of this Act is to provide for the establishment of legal aid and an access to justice fund into which financial assistance would be made available to the Council on behalf of indigent citizens to prosecute their claims in accordance with the Constitution, and further to empower the existing Legal Aid Council to provide justice in certain matters or proceedings involving persons with inadequate resources, in accordance with the provisions of the Act.30

The Legal Aid Act also establishes the Legal Aid Council which is mainly responsible for promoting access to justice in the Nigerian legal system. However, the legal aid clinics at Nigerian universities have also been recognised as legal aid providers under the 2011 Legal Aid Act.31 According to a guide published by the Network of University Legal Aid Institutions (NULAI), the legal aid clinics at Nigerian universities at the time of this research stood at 18.32 These law clinics are guided by the policies of NULAI,33 an NGO established in October 2003 as a non-profit organisation dedicated to generating sufficient interest in the legal education sector and the promotion of legal education, access to justice and human rights.34

NULAI thus far has pioneered the establishment of 14 law clinics at universities across Nigeria, while influencing the establishment of several others.35 In this article, the focus will be placed on three law clinics at three Nigerian universities, namely, Abia State University; the University of Abuja; and the University of Ilorin. Law clinics examined are hosted in government institutions. It is important to restate the premises of conceptualising law clinics as non-state actors, premised on the basis of the status they are able to assume as NGOs. The impact of these three law clinics will be examined in relation to the CRPD. The reason behind the examination of these three law clinics is primarily premised on the fact that they are among the first generation of law clinics; represent law clinics in different geo-political zones in Nigerian law faculties, and because of the author’s personal knowledge and interactions.

Legal education in Nigeria has the sole responsibility of educating individuals that are motivated towards the law profession. A historical view of the legal education curriculum in Nigeria suggests one that was highly laden with the British style of education (considering the colonial history of Nigeria). It entailed a structure that was lecture-based and that prepared students for theoretical examinations to become qualified lawyers. At the successful completion of his educational training a candidate is admitted as both solicitor and advocate of the Nigerian Supreme Court. The educational training is structured in two major folds: first, five years of university education and, second, one year at the Nigerian Law School.

Considering the deteriorating quality in the nature of lawyers produced, the system of over-reliance on the theoretical framework of legal education took was under scrutiny in the country.36 The high rate of rejection of poor and incompetent lawyers produced by the legal education framework necessitated a review of the process.37 In a bid to follow the global trend, the system of law clinics was adopted in major law schools in Nigeria.38 One of the core bases that gave credence to the embracing of law clinics is hinged on the fact that legal education should basically enhance human knowledge and societal interaction of the lawyer.39 Another important basis was the need to ensure a grasp of means of advocacy to drive the basic tenets of human rights. According to Wilson, law clinics are originally configured to ensure that the justice model of the law is practically imbibed.40 Scholars such as Ojukwu and Egbewole advocate the importance of clinical legal education as a major means of ensuring an integrative approach to learning, community engagement, access to the rule of law and demystification of the challenges often identified with access to justice.41 According to Omoragbon, law clinics came into being in Nigeria as from 2004 and were conceptualised to function as a bridge to the challenge of access to justice, particularly in light of the high cost of legal services.42

According to Zarei and Safari, the allusion to the concept of non-state actors mostly is inclined towards the activities of armed groups.43 However, broadening the scope of the concept of non-state actors, it includes ‘actors that include private sector, social partners, trade unions and civil society organisations’ and, in this case, the law clinics at Nigerian universities. Article 6 of the Cotonou Agreement44 provides for the expansive interpretation of the actions and status of non-state actors. Private entities such as civil society organisations have had their status settled as non-state actors on different occasions, including acting as amici curiae before treaty bodies and supra-national judicial bodies. It is argued that the underlying theme of a body to be recognised as a non-state actor primarily is being an organisation, a legal personality and independent from government activities and supervision.

Building on this, it is assumed that the nature of law clinics in Nigeria would safely place them within in the ambit of non-state actors. For instance, the law clinic at the University of Ilorin was established on the premise of rendering pro bono services to communities in the vicinity; embarking on advocacy initiatives and contributing to the promotion of human rights of indigent citizens generally.45 Despite the wide scope of the operations of the law clinics, the level of their efficiency has come under heavy criticism and will be analysed in the next section.

4 Law clinics and diverse engagement: Other perspectives

From the foregoing it is important to briefly mention the need to ensure that law clinics are actively engaged with developing trends in society with a view to contributing to the realisation of the respect for the rule of law and human rights. In the author’s view, Nigerian law clinics would benefit tremendously from the experience of other climes in the engagement of law clinics in diverse activities.

Consequently, it is noted that the role of law clinics cannot be overemphasised, Quigley makes the point that the continued education of law clinicians is germane in ensuring that social injustices are confronted. 56 This position supports the argument of the author about the need to ensure proper capacity building for law clinics in Nigeria on issues of disability, and particularly on access to justice of persons with mental disabilities. This approach could be likened to what Karin and Runge describe as an integrated approach.57 The need for Nigerian law clinics to embrace a multidimensional approach to clinic education is important as this would enable the clinics to advance beyond the traditional engagement with the civil and political rights advocacy which seems to be the sole focus of the clinics. If the awareness level of the rights of persons with disabilities to access justice is to be enhanced, the role of the law

clinics is crucial, and they must be engaged especially in low focus areas such as the rights of persons with disabilities.58 To overcome the challenges identified in the operation of the law clinics and also inculcate a deeper appreciation of the challenges of persons with disabilities, interaction with clinicians is encouraged as this would enhance both the passion of the clinicians and the quest to seek a deeper understanding of the legal framework that has the potential of providing respite.59

5 Repositioning the law clinics to see the trees: Enhancing access to justice of persons with mental disabilities

Having established that law clinics have the potential to effectively engage the question of access to justice, it is important to reposition the law clinics to enhance the lived experiences of persons with disabilities with respect to access to justice. An important means of repositioning the law clinics would be the following:

(i) to enhance knowledge of applicable treaties;

(ii) to strengthen the institutional framework; and

(iii) to find a sufficient basis to motivate both the students and the coordinators.

In the first instance, enhancing the knowledge of the participants in the activities of the law clinics, there is a need to engage in the human rights education of all major stakeholders. This position is gleaned from experiences emanating from such programmes available to clinicians in other jurisdictions. In addition, the curricula of the human rights scope of most law schools in Nigeria need to be reviewed with a particular focus on disability laws. In addition, a dedicated effort needs to be focused on the continuing legal education framework of the Nigeria Bar Association to ensure that lawyers and judges appreciate the importance and impact of international law on municipal laws. The application of decisions of treaty-monitoring bodies and other supra-national judicial bodies also needs to be appreciated and effectively applied to the relevant cases that require the jurisprudence.

Second, the need to ensure that institutional frameworks are strengthened cannot be ignored. Apart from the judicial institutions, the need to strengthen the legal institutions that oversee the scope of legal education in Nigeria is very important. In advocating institutional strengthening, infrastructural reposition as well as policy reformulation are singled out. Apart from the challenges of reasonable accommodation that should be eliminated, it is important to have policies that are specific to enhancing the experiences of persons with disabilities, with particular reference to access to justice of persons with mental disabilities.

Third, it is important to enhance the motivation of both students and coordinators of the law clinics. The funding of the activities of the law clinics must as a matter of urgency come effectively within the scope of funding by law schools. It no doubt is a reality that the credit assigned to courses at universities provides some motivation. However, it is important to ensure that the students concentrate wholly on the academic and practical aspect of the running of the law clinics and not get involved in attempting to be part of the funding of their activities.

6 Conclusions

Having established that NGOs also fall within the ambit of non-state actors and that they have a very important role to play in the human rights discourse, it has become imperative to examine the activities of law clinics in Nigeria. Law clinics generally are seen as NGOs and should by their composition and legal status be agents of change in the human rights advocacy.

The question of access to justice is very important in every facet of human rights, and its denial goes against the basic tenets of human rights treaties. Identified in the course of the research is the fact that persons with disabilities are more vulnerable, added to the further disadvantage of persons with mental disabilities.

As far as the role of law clinics in advancing the course of access to justice is concerned, it was found that while the law clinics in the select law schools were busy and engaged, their scope of operations was limited in certain areas. Identified factors that could possibly affect the efficiency of the clinics include limited knowledge, and institutional and motivational shortcomings.

In summary, law clinics were effectively identified to be well positioned to make a significant impact on reducing the inability of persons with disabilities to access justice. However, this can be achieved only by improving the capacity and knowledge of the clinicians.