LEGAL AID IN KENYA

LEGAL AWARENESS WORKSHOP

Legal aid can be defined as providing free legal advice to the poor,marginalized and vulnerable people in the society(indigent people).

In Kenya,there have been various efforts at providing legal aid through voluntary legal aid schemes by individual advocates and law firms. The first recognized effort at providing legal aid was in 1973 when a clinic was set up at Shauri Moyo in Nairobi under the aegis of the Faculty of Law, University of Nairobi and the Law Society of Kenya. This clinic operated as the Legal Advice Centre throughout the 1980s and was thereafter renamed Kituo Cha Sheria to date. Later in the 90s, many initiatives were started by non-governmental organizations (NGOs) which offered a range of services.

Legal aid in Kenya has taken long to enter into our policy papers as a key measure in the alleviation of poverty.  The first recognition of legal aid in our policy framework was in the Poverty Reduction Strategy Paper for 2001-2004 which noted that “Communities and the poor cited lack of access to socially responsive and affordable legal and judicial services as critical issues that need to be addressed by the government in the fight against poverty.

The Government of Kenya has come up with a practical and affordable and effective legal education and aid delivery scheme that increases access to justice for the poor in Kenya in accordance with the priorities set out in the poverty alleviation strategy. It is the poor who suffer most from the effects of weak, unaccountable and insensitive legal and judicial systems.”

Other policy initiatives such as the National Poverty Eradication Plan 1999 – 2015, Investment Programme for Economic Recovery Strategy for Wealth and Employment Creation (ERS) 2003 – 2007 and the Kenya Vision 2030 identify lack of access to justice as having a direct link to poverty. Accordingly, they recognize the need for access to justice as a critical pillar for economic development and poverty reduction.

The Government has made commitments under regional and international human rights instruments to provide state funded legal aid and education as conduits to enhancing access to justice. These include the Universal Declaration of Human Rights; the International Covenant on Civil and Political Rights; the African Charter on Human and People’s Rights; the Convention on the Right of the Child; among others.

Legal aid and legal awareness are a critical component of enhancing access to justice. Promoting the administration of justice and the rule of law is one of the several priorities of the Government of Kenya. Efforts by the Government towards comprehensive reforms has included a review of the legal sector covering the State Law office, the Judiciary, Legal Education Institutions and other law enforcement agencies such as the police, prisons, children and probation services departments.

Despite the initiatives to promote access to justice having had some degree of success, the demand for legal aid and awareness services is overwhelming and has stretched the capacities of those bodies dealing with legal aid to their limits. Furthermore, their efforts have been largely uncoordinated and their quantitative reach insignificant in terms of addressing the problem at the macro policy level. However, coupled with lack of standardization, supervision, regulation and spatial limitation, the quality and frequency of legal aid and legal awareness provided by these players have been compromised.

Legal provisions exist relating to the right to legal representation both in Kenya’s civil and criminal procedures. However, obstacles to access to justice, the nature of the legal system itself, and the context within which it operates. The legal system is faced with structural, procedural, administrative, fiscal and human resource limitations, thus leaving a majority of the Kenyan population, especially the poor, vulnerable and marginalized unable to access justice. In the criminal justice system for example, suspects in remand endure inordinately long remand periods for reasons ranging from long cause lists, missing investigation files, lack of witnesses, lost court files, among others, a situation that is further compounded by lack of legal representation.

Several barriers prevent the poor, the marginalized and vulnerable from accessing judicial services and justice in general. Apart from inadequate court infrastructure in many places, poverty and lack of awareness of legal rights as well as corruption inhibit access to justice for the majority. The use of traditional/community justice systems have been relegated in favour of the formal justice system. As a result, populations in far flung areas who cannot reach the formal justice infrastructure are excluded.

Majority of the Kenyans are unable to access justice due to a number of reasons including: Access to legal representation is mostly available to only those who can afford to pay private practitioners for their services; Services provided by non-governmental can only reach a limited number of those who require legal representation; The existing pauper brief system for capital offenders only caters for murder suspects on trial in the High Court, leaving out other capital offenders facing death sentences; The procedure for one to be declared a pauper under the Civil Procedure Rules is highly technical and difficult to apply; courts are too far for sections of the population; corruption; inadequate number of judicial officers leading to backlog and delays in the dispensation of justice; Inequality before the law and under-utilization of alternative dispute resolution mechanisms.

Kenya’s formal justice system is adversarial in nature and requires that one has legal representation or legal knowledge. The public has often expressed frustration at the delays experienced in the dispensation of justice and many have lost confidence in the formal justice system.

Access to justice is now contained in the constitution. The Constitution of Kenya recognizes the need for enhanced access to justice and lays a solid foundation for the establishment of a national legal scheme. The Bill of Rights (Chapter Four) of the Constitution recognizes the need to protect human rights and fundamental freedoms for purposes of preserving the dignity of individuals and communities and promoting social justice and the realization of the potential of all human beings. Every organ of the state is obliged “to observe, respect, protect, promote and fulfill the rights and fundamental freedoms in the Bill of Rights”[1]

All state organs to are required to “address the needs of vulnerable groups within society, including women, older members of society, persons with disabilities, children, youth, members of minority or marginalized communities”, among others[2] and every person has “the right to institute court proceedings claiming that a right or fundamental freedom in the Bill of Rights has been infringed, or is threatened.”[3] Legal aid will provide a person with limited financial resources access to justice through this provisions.

Under the Civil Procedure Rules,2010, a litigant may apply to be declared a pauper where the litigant has an opportunity to file suit without the requisite filing fees and other court disbursements. However, the procedure laid down for instituting these suits under the Civil Procedure Rules is rarely applied for the reason that the applicants are usually illiterate and strict adherence to procedure would shut out many on technicalities. The procedure is so technical that a poor litigant still requires a lawyer to file the necessary application on her/his behalf. It is also time-consuming, thereby defeating the whole purpose of access to justice.

The guarantee to legal assistance provided by Section 186(b) of Children Act 2001 is conditional to a child offender having no other recourse to legal assistance. However, this proviso does not place any specific obligation on the state to provide legal aid.

The persons with Disabilities (Legal Aid) Regulations 2009 which establishes a Legal Services Department provides that persons with disability are entitled to legal aid in matters affecting the violation of their rights or the deprivation of their property, and in cases involving capital punishment. It requires the person with disability to lodge an application for legal aid with the National Council for Persons with Disabilities.

In 2005 the Ministry of Justice and Constitutional Affairs undertook to design and operationalize a Legal Education and Aid Pilot Programme, which would provide lessons for the eventual National legal Aid Scheme in Kenya. This was a build up from previous efforts at creating a legal aid Programme by the Attorney General’s office and other stakeholders.

The National legal Aid (and Awareness) Steering Committee was established on 3^rd November 2007. The development goal of the pilot programme is to achieve a practical, affordable and legal education and service delivery scheme that increases access to justice for the poor in Kenya in accordance with the priorities set out in the Kenya Vision 2030. The pilot programme is designed to provide lessons for the design and development of an appropriate national legal aid scheme for Kenya.

Non- governmental organizations including faith based organizations have initiated projects and programmes geared towards providing legal awareness and legal aid based on their specific areas of focus such as women’s rights, children’s rights, land rights and employment, to name a few. As a result of this specialization, many needy cases that do not fit into the selected themes or eligibility criteria do not get to benefit from those services.

Non-governmental organizations in the legal aid and awareness business have called for a more sustainable and systematic government approach to the provision of legal aid and legal awareness, which this policy seeks to address. One of the most important contributions of these schemes has been the breaking away from the traditional philanthropic focus of the official interventions by attempting to address some class aspects of the problem, by promoting empowerment and social change.

Universities have developed means of enhancing access to justice where university students provide legal advice and assistance to needy clients as a way of gaining practical legal experience. In Kenya, the concept has been embraced by the University of Nairobi. Through these clinics students are guided by the faculty in the services they provide and are sometimes attached to organizations as appropriate.

Apart from legal advice and assistance, the students also carry out conciliation, research and develop publications on legal matters. A programme developed by the University of Nairobi known as Public Interest Clinic which is a unit in the final year of study involves attaching the students to various NGOs and human rights institutions where they offer similar services and also learn various notions and alternatives to enhancing access to justice and promoting social justice.

The Kenya Human Rights Commission (KHRC) in its effort to enhance access to justice provides legal aid and legal awareness through its response to human rights violations through monitoring, policy proposals and investigations. The KHRC however, does not have the requisite human and material resources to deal with the large numbers of cases brought especially those in need of legal aid and awareness.

Previously challenges relating to the judicial system have been addressed on the basis of philanthropy. This has been done through the paper brief system and limited pro bono litigation which has been seriously disregarded by the established advocates leaving it to the new ones in the fields and due to their little experience in the field they may end up losing cases some of which could have been easily won.

Legal aid encompasses legal representation by a lawyer, including such assistance as is given by a lawyer in the steps preliminary or incidental to any proceedings or arriving at or giving effect to a compromise to avoid or to bring to an end any proceedings. Lawyers mainly practice in urban centres, leaving the poor majority in the rural areas without the benefit of legal representation.

The constitution also defines marginalized group as a group of people who are disadvantaged by discrimination on the grounds set out in Article 27[4] of the Constitution which are race, sex, pregnancy, marital status, ethnic, social differences, colour, disability, religion, conscience, belief, culture, dress, language or birth. To these groups should be added the economically disadvantaged special attention been given to the needs of the indigent who have to face the criminal justice system, either as accused persons or as prisoners upon conviction. Inevitably many of these seeking justice and seeking legal assistance may suffer from multiplicity of challenges they may be indigent person, marginalized or persons affected with HIV/AIDS.

Access to justice to these different groups will definitely mean different things due to their differences and challenges and therefore appropriate legal frameworks should be drawn with special regard to these groups of the community. Access to justice incorporates the ability of the citizens to utilize the legal systems with the least possible costs, without delay or inconvenience and effectively. Use of the legal system is not a privilege granted to the philanthropic members of the society or members of the legal profession, but as part of the basic framework for development. Access to justice should therefore without any doubt be regarded as a Constitutional right to all member of the society. So the question to be addressed is how this Constitutional entitlement is affected.

The need and justification for legal aid in Kenya is that it performs five major tasks which include;-to justly allocate advantages and disadvantages, to prevent abuse of power, to prevent abuse of liberty, to justly decide disputes and to justly adapt to change. For poor people who do not have money to pay court fees or hire a legal expert to advise and represent them, the right to subsidized legal service is the most fundamental right of all rights. Legal aid should thus be looked at as a system which facilities equality of access to the justice system through the provision of legal services in serious matters to those who would not otherwise be able to finance them solely from their own resources. It also facilitates fair hearing so that all the parties seeking justice may get convinced that justice has been done but it has also manifestly and undoubtedly been seen to have been done.

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[1] Article 21 (1) of the Constitution

[2] Article 21(3) ibid

[3] Article 22(1) ibid