By Arthur Muiru Njuguna (October, 2019)
Lawyers give free legal advice during Kituo’s annual clinic programme Legal assistance is a fundamental part of any justice system especially in the capitalist world. It is a response to massive inequalities that exist within these societies and to the money making disposition that professional practice has adopted. To allow lack of means to lead to lack of justice would be to cement the notion that all are equal but some are more equal than others. Rule of law would be subordinated to the rule of money.
That being so, what is the status of Legal Aid in Kenya? Indeed, this is a highly nuanced sector so the hope here isn’t to state every ‘stateable’ fact but to give a bare-bones description of the story from which one can build at their leisure.
The Good
For many years, provision of legal aid was seen as a reserve of non-state actors. Organisations such as the International Justice Movement, Kituo cha Sheria, Kenya National Commission on Human Rights and Transparency International were alone at the forefront facing massive funding deficiencies but steadfast nonetheless. We then saw institutions of higher learning, such as Strathmore Law School, and a host of law firms also step up to play a part in taking on the daunting challenge.
Programmes like Kituo’s ‘Legal Aid & Education programme’, Transparency’s ‘Advocacy and Legal Advice Centre (ALAC)’ and Strathmore’s ‘Legal Aid Week’ became the lifeline of many unable to pay hefty legal fees.
Finally, the last decade has seen the state at long last throw its hat in the ring and play its rightful role in guiding, facilitating and participating in this worthy cause. As a result, Kenya appears to be surging forward as a notable regional player in Legal Aid provision.
Credit for the latter development may be given to the promulgation of the Constitution of Kenya, 2010 which placed special emphasis on the right of Access to Justice.
“The State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice.” (Art. 48)
President Uhuru Kenyatta signs the Legal Aid Bill into law This triggered a ripple effect that gave rise to the National Legal Aid and Awareness Policy, 2015, the Legal Aid Act, 2016, the National Legal Aid Service, 2017 and the National Action Plan on Legal Aid, 2017 – 2022. The Government has also made commitments under various regional and international human rights instruments to enhance access to justice including; the ICCPR (1996), the UN CRC (1989), the UN CRPD (2007) and the ACHPR and Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003.
With prominent tongues wagging, legislation moving and Kenya professing her commitment on the international stage, Legal Aid provision appears to be getting the attention she deserves, finally!
The Bad
Notwithstanding the seemingly rosy state of affairs articulated above, it is important to take a look beyond the paper; beyond the roses, chocolates and poems. Does the walk match the talk? Has the rubber hit the road?
Sadly, and without spending too much time in the bush, the answer appears to be a resounding no! A year ago, during the East African Regional Legal Aid conference in Nairobi, the acting Director of the National Legal Aid Service, Caroline Amondi, shed some light on the depressing realities that face the Legal Aid initiative. She highlighted the sheer bulk of the work set out and juxtaposed it against the measly funding the initiative receives. With an average of 15000 cases a year to handle, the number more than tripling during times of unrest, the initiative is allotted a paltry 50 million shillings to provide services, pay salaries and fund expansion across the 47 counties! The initiative currently operates in Nairobi, Mombasa, Kisumu, Nakuru and Eldoret and would require close to 500 million if it is to achieve its desired end and permeate access to justice across the nation. Indeed, the harvest is ready, the labourers are plenty but the pockets appear empty. Kenya may have bitten off more than she is willing to chew.
The Ugly
The underlying consequence of the situation was expressed candidly, surprisingly so, by the Attorney General, Mr. Paul Kihara, at the same event;
“Left unaddressed, this matter will, no doubt affect all facets of national development as well as peace and security,”
A nation without access to justice is a nation without justice. If the law becomes inaccessible and justice a dream, society deteriorates. One doesn’t need to look far to see that when no light is visible at the end of the tunnel, nations fall; for when the law becomes a weapon for the rich the poor can only perish or take it by force.
Shall we seek and agitate to see this grand project, so robust on paper, through to maturity? Or shall we allow the proverbial gatekeeper at Kafka’s gateway to the law maintain his post?
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