• Article 48 of the Constitution requires the State to ensure that all persons have access to justice.
• Access to justice is therefore a basic principle of the rule of law.
Image: THE STAR
Courts are expected to deliver impartial justice in all cases before them irrespective of the status of the parties involved.
However, not everyone has access to the courts in seeking justice.
High court fees, complex procedures, lack of legal representation, remote geographical location of courts, and corruption are some of the factors that impede justice in Kenya.
The framers of the Constitution of Kenya 2010 were alive to this great injustice when they embedded access to justice in our Bill of Rights.
Article 48 of the Constitution requires the State to ensure that all persons have access to justice at an affordable cost as a constitutional right.
Article 48 is further reinforced by Article 22 on enforcement of the Bill of Rights and Article 47 protecting the right to fair administrative action.
Article 159 states that justice shall be done to all irrespective of their status and administered without delay and undue regard to technicalities.
The constitutional principles guiding access to justice are outlined in Article 159 and include efficiency in delivering justice; use of alternative forms of dispute resolution; equality before the law; and ensuring justice is not denied on the basis of technicalities.
Access to justice is therefore a basic principle of the rule of law. It is an enabler of a fair, just and accountable governance system.
The Constitution also promotes Alternative Dispute Resolution (ADR) as a distinct mechanism for enhancing access to justice.
ADR encompasses reconciliation, mediation, arbitration and traditional dispute resolution (TDR) mechanisms.
Despite this elaborate constitutional framework guaranteeing access to justice, including ADR and TDR many Kenyans face multiple challenges in accessing justice, especially through the courts.
A survey conducted in 2019 by Afrobarometer, a non-profit organisation specializing in research and policy advocacy, revealed that the majority of those surveyed prefer using out-of-court settlements in pursuit of justice compared to courts of law and tribunals.
Only ten per cent or less had any contact with the formal court system in the two years before the survey.
The survey also revealed that 35 per cent of Kenyans think judges and magistrates are involved in corruption.
Fifty-seven per cent trusted the courts compared to 73 per cent for religious leaders and 66 per cent for traditional leaders, showing the latter two institutions as potentially being more preferred for dispute resolution compared to the courts.
The most preferred avenue for seeking justice is through friends or family members (24 per cent), traditional leaders or community (19 per cent) or by the parties settling that matter (18 per cent).
Only a paltry 2 per cent considered courts the first point of call in accessing justice.
Earlier in 2017, the Kenya Judiciary undertook the Justice Needs and Satisfaction Survey which produced similar findings but importantly, that people in different socio-economic groups need justice in different ways.
For example, land-related legal problems mostly occur among poor and rural communities and persons with a low income or poor education tend to encounter legal challenges more often.
Hence the need to develop a justice system that takes into account these different needs.
In other words, a one-size-fits-all approach is not tenable in addressing the diverse justice needs of various groups in society.
Increased use of ADR mechanisms is one way of encouraging people to seek redress for their legal problems
Therefore, the move by the National Council on Administration of Justice (NCAJ) to include enhanced access to justice by vulnerable groups as a key pillar of its 2021-2026 Strategic Plan is timely.
However, more emphasis should be on promoting alternative dispute resolution in the administration of justice.
The Constitution envisions a stronger role for ADR including traditional dispute resolution mechanisms.
These are critical in bolstering the rule of law.
When people resort to non-violent ways of resolving disputes, peace and security are guaranteed.
In any case, going by the surveys cited above, it is clear that a majority of Kenyans prefer less formal platforms when it comes to resolving their legal disputes.
This is not to imply that courts and tribunals have no role in strengthening access to justice.
For instance, simplifying the language, form, procedures and content of the laws is critical in making courts more attractive and expeditious in managing disputes thus boosting public confidence in the judicial system.
There is also a need to strengthen legal aid programmes as a way of empowering the poor and marginalized to seek remedies for injustice.
The Legal Aid Act 2016 establishes the National Legal Aid Service (NLAS) to provide legal aid services in an accessible, transparent, efficient and affordable manner.
NLAS should be granted adequate resources to enable it to expand its services to all 47 counties.
This will help those seeking justice even in the remotest parts of the country to access legal representation.
NLAS should also work closely with the Law Society of Kenya (LSK), Court Users Committees (CUCs) and other stakeholders in building public confidence in the court system.
Due to Covid-19, courts have adopted virtual hearings in compliance with public health restrictions.
In remote places where internet connectivity remains a major constraint, parties are likely to be disadvantaged thus further alienating them from justice.
The Judiciary under the leadership of Chief Justice Martha Koome should prioritize the digitization of the entire court infrastructure.
Although this was already in motion pre-pandemic, the process should be fast-tracked to ensure gains made in reducing case backlogs are not eroded.
In addition, Chief Justice Koome should rid the courts of corruption cartels that have seriously damaged the credibility and integrity of our court system.
There is nothing for the Judiciary to be proud of when one-third of Kenyans think that judges and magistrates are involved in corruption.
You can’t, therefore, blame them when they shun the courts.
Corrupt judicial officers should be dealt with ruthlessly to salvage the reputation of the judiciary.
In a nutshell, the performance of the Judiciary should be measured primarily on its ability to sustainably improve the ability of citizens to get justice in a manner that is affordable, efficient, user-friendly, impartial and credible.
Only then will Wanjiku have full trust and confidence in our courts.
Mr. Rienye is an Advocate of the High Court of Kenya ([email protected])