Rosenbaum, S A --- "Clinique Togo: changing legal practice in one African nation in six days" [2012] LegEdDig 38; (2012) 20(3) Legal Education Digest 18

• Clinique Togo: changing legal practice in one African nation in six days

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Clinique Togo: changing legal practice in one African nation in six days

S A Rosenbaum

International Journal of Clinical Legal Education, Vol 17, 2012, pp 59-98

With honour and humility I accepted an invitation from the US State Department to participate as a technical advisor in a week long rule of law seminar in Togo, with attorneys, judges, law professors and students. My mission was to explain various models for delivery of free legal services and assist in developing proposals for establishing a bar association pro bono program in conjunction with the nation’s principal law school.

In Togo, the Embassy had reason to believe that the overall theme of legal aid to the indigent, particularly as it involved clinical legal education and pro bono service, was suitable for a program speaker. Whether the suitability was informed by discussions with the Togolese or by what was in vogue with Foreign Service colleagues in other African capitals or Washington, DC, I do not know, I was not given any background documentation beyond the standard State Department country report.

It was through my perusal of the relevant literature that I assumed the immediate need for legal aid was among prison detainees. Only after arrival in Togo did I learn that the nation had an inoperative legal assistance statute that had been on the books for decades. The statute, Ordinance No. 70-35, Article 10 provided legal aid to the indigent but required the executive to issue an implementing decree. I was also informed, once in Togo, about a new cooperation agreement between the principal law school and largest local bar association. In addition to this administrative framework, there existed an informal pro bono effort by members of the bar to make ad hoc visits to the prison to obtain some releases. These efforts represented the totality of the Togolese indigent legal services program.

The United States supports democratisation efforts in countries like Togo, which are transitioning from autocratic one-party states with under-developed judicial procedures. Typically, the American government contributes its resources to nations which display a modicum of stability and targets a mid-level elite receptive to reform.

The scope of the program had been defined broadly with a focus on the mechanisms for reform. A criticism of ‘access-to- justice’ or ROL programs is their failure to ‘overcome transplant, formalist, and prescriptive criticisms of the 1960s law-and-development movement’. Modern programs have evolved, however, and are distinguished by three characteristics: the involvement of practitioners (in addition to academics); participation of multinational actors, together with those from the United States; and an effort to work in partnership with African educators and practitioners to develop suitable institutions.

The program in Togo harnessed the effectiveness of this last change, in particular.

Despite my difficulties with communication, it became apparent that the two broad objectives for the Togolese were: (1) develop a bar association pro bono program to facilitate delivery of legal aid to the indigent; and (2) establish a clinical education component at the capital’s law school.

My research fell into three main topical areas: approaches to clinical education with an emphasis on developing countries; model civil law statutes for free legal services delivery; and reform campaigns aimed at reducing prison populations.

Email exchanges in the weeks just before departure confirmed the mission was overly ambitious: a three day conference to (1) draft a statute establishing free legal services for the poor; and (2) design a clinical legal education programme at the University of Lomé faculty of law.

Conference work was to occur in small groups, book-ended by formal plenary sessions, but it was unclear whether I was expected to facilitate any of these sessions. An email from the PAO suggested that workshops, at least as conducted in most American “break out” settings, were not a well-established mechanism in Africa; past experience told me as much.

On the first programme day in Lomé, I held two key preparatory meetings: one with the president of the local bar association and the other with the Ambassador. The bar association was officially in charge of the impending workshop. Characteristically, the bar was neither sufficiently staffed nor financed to independently plan or organise this kind of event.

In the upcoming seminar discussions, beginning with the meeting at the bar headquarters, participants frequently invoked Article 10 of Ordonnance No. 78-35. This sole existing statute addressing subsidised legal assistance states:

Legal assistance may be granted, by decision of the jurisdiction handling the matter, to parties proving their indigence. The particulars of the assistance are governed by décret.

Two other documents also appeared central to the debate. First the Ministry of Justice had issued a draft judicial modernisation program a little more than two years earlier, noting that the legal aid fund allegedly created in 1978 never received any government appropriations. Second, the nation’s largest bar association and law school had entered into a partnership agreement or memorandum of understanding earlier in the year. The document envisioned such activities as continuing education of the bar, theoretical and practical training of students; attorney-taught courses and curriculum planning and student externships.

It remains surprising that a white American lawyer from a common law regime has something to say to French-speaking, black African jurists working in a Germano-Roman civil law system. Yet, these differences failed to raise large obstacles to communication despite their divisive potential.

The US system, putting aside our own history of hegemony, does provide an instructive model for examining contemporary judicial and legal educational innovations – beyond the general caché associated with Made in America.

There was a long period of incubation before the American institutions of democratic governance and due process protections took shape, I explained to the audience. The Supreme Court required 170 years to clearly define the contours of the Sixth Amendment to the U.S. Constitution – a fundamental provision of the Bill of Rights establishing the principle of legal assistance to those accused of committing a crime.

I went on to describe a second unique method of the American legal system that could be instructive in Togo’s struggle to provide services to the indigent: the development of clinical programs. Through these programmes, law schools have set up clinics permitting students to work under the supervision of lawyers, or skilled teachers, and hold them accountable to indigent clients. Indeed, clinical education has developed elsewhere in Africa, in Anglophone countries and in legal regimes with no longstanding clinical or practice-orientated tradition. Although the clinical model, as we have come to praise it, is not intrinsic to common law, the development of law school clinics to provide service appears to be a creature of the Anglo-American system. In contrast, the Western European civil law countries – and France in particular – have historically failed to embrace clinical education or formation pratique.

Lastly, having proposed several models for guidance and discussed their applicability, I urged the creation of a law school-associated clinic in Togo, which could really benefit from a theory-practice collaboration resulting from the recent partnership agreement between the local bar association and the University of Lomé. In short, Togo presented a rare opportunity to establish a clinic in French-speaking Africa.

For example, students would work under the supervision of an attorney for a specified time, for the purpose of acquiring professional experience, absorbing values inherent to the profession and mastering the professional code of ethics.

This problem begins with the type of instructors available. For the most part, professors are recruited directly from the Academy, with no law practice experience or training. Classes are almost exclusively about theory, delivered lecture style in a large hall, with minimal to no student interaction or opportunities for formation pratique.

The theoretical curriculum would focus on conceptual definitions, ethical norms, legal foundations, inter-university exchanges and alternative methods of conflict resolution. The practical programme would concentrate on statutory amendments, ‘drop-in and orientation’ centres and legal clinics, and reliance on paralegals. When other seminar participants expressed some concern about the clinic proposal, the working group responded that its mandate was to suggest a general orientation about instilling a ‘legal aid consciousness’, while leaving it to the University to determine the practical methods of teaching the subject matter.

There must be more face-to-face exchanges and of longer duration. There must be a greater interchange between Togolese who study, observe, teach or consult abroad – in Africa, Europe or the United States – in law school, law practice or NGO settings, and foreigners who come to Togo to do the same. Any attempt at establishing a clinical system will also require public and private funds, administrative and technical feasibility, and political will.