IBA International Pro Bono

Africa and pro bono - is Africa behind, or different?

 

Odette Geldenhuys, Webber Wentzel, Cape Town
Odette.Geldenhuys@webberwentzel.com

 

The state of pro bono legal services in Africa is often as misunderstood as Africa itself. Compounding such misunderstandings is a tendency to think of Africa as a ‘country’, rather than as a continent that is home to 54 countries, 200 ethnic groups, 1,500 languages and more than 1.1 billion people.

 

‘It was a road that traversed a region still thought to be the most turbulent on earth, which in the context of this story, is a detail both unimportant and supremely important. It’s that sort of story, it’s that sort of road.’ So begins Kevin Bloom and Richard Poplak’s Continental Shift: A Journey into Africa's Changing Fortunes.[1] This quote neatly directs the reader away from the binary lens through which Africa is usually viewed, to a more layered and complex view.

 

The availability of, and the nature of, pro bono services on offer ‘in Africa’, are greatly determined by the status of the different national economies, as well as the overall development status of the varying countries.

 

Africa as a continent

 

The Africa Rising narrative, popularised by 2011 articles in the Times and The Economist, is problematic precisely because Africa is a vast continent, its fortunes are uneven, and unrelated developments happen in diverse and distant locations. The previously held view of Africa ‘as a basket case’ is similarly problematic for the same reasons.

 

National economies

 

By measure of Gross Domestic Product (GDP), Nigeria is the wealthiest country in Africa, followed by Egypt and South Africa. The ten poorest countries, by the same measure of a country’s purchasing power in international markets, are: Guinea, Ethiopia, Democratic Republic of the Congo, Madagascar, Liberia, Niger, The Gambia, Central African Republic, Burundi and Malawi.[2] In 2016, Africa’s overall growth rate was 2.2 per cent, which is low when compared to other continents; within this average growth rate, some African countries fared better than others. The mixed economic performance among African countries was highlighted in the 2016 message from the Chairperson of the African Development Bank Group.[3]

 

Improvements are from a low base. ‘Before the turn of the century, poverty was rampant, economies were faltering, infrastructure was in disrepair and political and economic governance was weak. Africa as a continent was fragile. Things changed as Africa grew rapidly over the next two decades. Extreme poverty in Africa declined from 56 per cent of the population in 1990 to 41.5 per cent in 2015… poverty remains a challenge in Africa, with an estimated 400 million poor, in 2015, up from 350 million in 1990, largely because of rapid population growth. Income inequality remains high, youth unemployment is rising, and gender equality remains elusive. The benefits of growth in Africa have not reached the masses.’[4]

 

What are the pro bono strategies in a context of almost unlimited need and very limited capacity?

 

We often hear the platitude that, with few exceptions, pro bono in Africa is at a nascent stage, with firms undertaking projects in a largely ad hoc manner. The reasons why this platitude is partially true have nothing to do with any racist explanations or the lack of expectation that anything good can come out of Africa, but has a lot to do with the fact that most African countries are poor, do not have strong economies and frequently lack strong institutions. The availability of legal resources are determined by the economic wellbeing, or not, of a country. The lack of large law firms with their origins in African countries has much to do with the scale, size and nature of the countries’ economies. In the absence of a stable and thriving national economy, law firms are focused on survival, with insufficient time, finances or emotional resources for sustained pro bono work. The Nigerian example of the memorandum of understanding between the Nigerian Bar Association and the Legal Aid Council of Nigeria for pro bono services that took more than a quarter of a century to be finalised,[5] demonstrates that while the will may be there, until a country’s economy has stabilised and there is reliable institutional backing, organised pro bono initiatives cannot come into their own.

 

Poor economies are also societies with few lawyers. For example, in Angola, the 2014 estimate was 1,000 lawyers in a population of about 21 million people; and this severe shortage of lawyers, coupled with a very uneven urban/rural distribution, means that many Angolans struggle to obtain legal assistance in a variety of civil and criminal matters.[6] Morocco is another country in which the numbers of lawyers remain disproportionate to the population’s needs.[7] One can understand why local law firms do not have the capacity for pro bono legal services, as such strained lawyer to population ratios leave very little, if any, time for pro bono work.   

 

While one can assume that local pro bono initiatives in African countries may not be documented as extensively as in the United States or European countries, the following information about one of the poorest and one of the wealthiest countries in Africa, based on desktop research, is informative.

 

ETHIOPIA

 

In Ethiopia, which is one of the poorest countries in Africa, it is hardly surprising that there is no pro bono practice and culture. Under such circumstances the Ethiopian Lawyers’ Association must be commended for having set as objectives the provision of free legal aid to the needy; and to work for human rights and the rule of law within a values' framework of effective and ethical lawyering, democracy and good governance.[8] Because of Ethiopia’s high levels of poverty, the Ethiopian Lawyers’ Association has as an imperative objective: the provision of legal aid services to those who are economically and socially underprivileged. In the absence of local resources, such a project has been made possible by a European Union grant.[9]

 

NIGERIA

 

As one of the wealthiest countries on the African continent, the legal profession is financially better placed than their colleagues in the poorest African countries, and hence the intention to do pro bono work has been around in Nigeria for 25 years. The Nigerian Bar Association has two formal Pro Bono Declarations in place, adopted in 2009 and 2015, respectively. The 2009 Declaration states that members should commit to providing more than 20 hours or three days of pro bono legal services per lawyer per year. The 2015 Pro Bono Declaration looks at the numbers of people to be assisted, and encourages law firms and individual lawyers to assist on a pro bono basis, at least five indigent individuals, group of persons or communities annually.  

 

By making pro bono legal work one of the criteria for appointment to the revered rank of Senior By Advocate of Nigeria (which is the Nigerian equivalent of a British Queens Counsel), it is a great motivator for lawyers with such ambition.[10]

 

Sustainable Development Goals

  

In 2015, the United Nations adopted the Sustainable Development Goals, a set of 17 goals designed to end poverty, protect the planet and ensure prosperity for all. Goal 16 focuses on Peace, Justice and Strong Institutions, and it identifies the role of strong institutions in promoting peaceful and inclusive societies for sustainable development.[11]

 

However, Africa is the continent most affected by fragility. Some 250 million of its people live in fragile situations, and about 19 million people have been displaced due to the upsurge in violent conflicts since 2010. Fragility threatens to slow, or even reverse, the development prospects of countries and entire regions, making it harder for Africa to achieve the Sustainable Development Goals’ ‘leaving no one behind’.[12] Such ongoing fragility – economically and otherwise – is barren ground for highly structured pro bono programmes. Introducing external pro bono models that do not take account of local conditions is not realistically feasible. What would be interesting and meaningful is to gain a deep understanding of the ways in which lawyers with limited resources serve needy clients, probably without calling it ‘pro bono’.

 

Once this continent overcomes its weak economies - and it follows, weak institutions – the stability will bring with it the various resources required by local and national lawyers to provide pro bono legal services to its disadvantaged and disempowered people. Such pro bono legal services will continue to develop and evolve according to local needs and homegrown pro bono models, which are effective for the specific conditions of different African countries, will mature.

 



[1] Kevin Bloom and Richard Poplak, Continental Shift: A Journey into Africa's Changing Fortunes(Jonathan Ball Publishers 2016) 1.

[2] See: www.biznakenya.com

[3] African Development Bank 2016 Annual Report, p ii, available at: www.afdb.org/fileadmin/uploads/afdb/Documents/Generic-Documents/AfDB_Annual_Report_2016_EN.pdf.

[4] Ibid 1.

[5] See: www.nigerianbar.org.ng/index.php/news1/306-nba-gives-a-major-boost-to-pro-bono-legal-services-in-nigeria.

[6] See: www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-angola.pdf.

[7] See: www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-morocco.pdf.

[8] See: www.ethiopian-bar.org/index.php/about-ela/value-goal-and-objective.

[9] From the European Union Civil Society Fund II, see: www.ethiopian-bar.org.

[10] See: www.lw.com/admin/Upload/Documents/Global%20Pro%20Bono%20Survey/pro-bono-in-nigeria.pdf.

[11] See: www.un.org/sustainabledevelopment/sustainable-development-goals.

[12] See n 3, 19.

 

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