The promulgation of the Constitution of Kenya 2010 came with a great promise to Kenyans for
the right to access to justice. Article 48 provides that the state shall ensure access to justice for all persons. This provision is just but the physics of things. The engineering of access to justice has a lot to do with procedure which is largely the forte of trained professionals in the name of Lawyers. Unfortunately, many Kenyans are people of humble means and cannot afford the services of Lawyers. That aside, some individuals have preconceived notions of lawyers expressed in titles like “Learned friends” and “Wakili”. This terms sound very innocent but they hide certain perceptions the public has about Lawyers which sometimes makes them unapproachable by the common mwananchi.
The high cost of legal fees and the inapproachability of Lawyers has created a situation which is neither beneficial to the clients nor the Lawyers. This is because a large portion of the population ends up lacking legal representation in appropriate cases while others end up falling in the arms of quacks who mess up their cases even more. This also means that Lawyers lose a big market to unqualified people and that eats into their profit margins.
When it comes to the issue of legal representation the Constitution concentrates on the rights of accused persons in Article 50(2). With special reference to indigent persons, Article 50(2)(h) provides that an accused person will have a right to be assigned an Advocate at the expense of the state “if substantial injustice would otherwise result”. This provision, although progressive presents its own difficulties as one would have to delve into the question when would substantial injustice result? Because of that statement, it has generally been presumed that the right to an Advocate at state expense is available in capital offences only. This, in a view, is a grave error for it is natural that substantial injustice would result in any case where a poor person is in conflict with the criminal justice system. Lay people has little or no understanding of the mechanics f the criminal justice system and can end up being convicted not because they are actually guilty but because they didn’t not understand it sufficiently well to be able to interact with appropriately. And this is a very common scenario where many innocent people are made to answer for crimes they didn’t commit maybe because they have rubbed a “mighty person” in the society the wrong way or where they are victims of malicious actions or witch hunt.
In another view, the absence of clear legal provisions in the Constitution on legal aid for civil cases still leaves a big gap in our society which must be addressed to ensure realization of the social and economic rights of our people. This is because a poor man without ability to protect his property and position in society will always remain the victim of those who control political power and hence resources. Such a situation erodes the dignity of individuals in our society and compromises the well being of entire communities. The result of this is that social justice is undermined and people become unable to realize their full potential as human beings.
In an effort to address some of the sticking problems with legal aid, Parliament recently enacted the Legal Aid Act (Act No. 6 of 2016) (LAA) which came into force on 10th May, 2016. For the first time in the history of this country, legal aid attained formal legal recognition away from ad hoc legal aid initiatives in the form of pro bono legal services, pauper briefs and legal aid clinics. Under the LAA Lawyers engaged in pro bono legal services and who take up pauper briefs will receive structured support and incentives that will see legal aid assume the right shape in Kenya. Additionally Lawyers and Law Students as well as NGOs such as Kituo Cha Sheria, Children Legal Action Network (CLAN), The Cradle Kenya, The Federation of Women Lawyers (FIDA), the Catholic Justice and Peace Commission and others involved legal aid clinics will get the necessary support to ensure all Kenyans access justice in a timely fashion.
One of the most progressive things about the LAA is that it establishes an institution known as the National Legal Aid Service (NaLAS) which is to take over from the ad hoc National Legal Aid Awareness Program which existed under the Attorney General’s office. This new body is charged with, among others, the duty of establishing and administering a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable. The Service has power to support legal aid providers, train persons in legal aid, educate the public on legal issues and increase legal awareness and so on. The Act also establishes a fund know as the Legal Aid Fund which is administered by the Service. This fund is crucial for financing legal aid activities across board.
With the creation of NaLAS, we hope that legal aid initiatives shall be established across the country and be available to all deserving Kenyans without discrimination. Ideally the NaLAS should establish offices not only in all the 47 counties of the Republic but also have a functional presence in all the major towns. This can be achieved by creating linkages with the County Governments and the Judiciary to establish offices in all the County Headquarters and all the courts across the country as well as having outreach programmes to reach the rural poor.
Justus A. Wabuyabo.
MANAGING PARTNER – WABUYABO LUKOBA & CO. ADVOCATES NAIROBI
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