Access to justice is a central theme in our constitution. In a nutshell, access to justice refers to ability of members of the public, and especially those who are financially disadvantaged or from marginalised groups, to approach the courts with relative ease and to be able to have their disputes considered and resolved in a fair and just way.
The constitution lays great emphasis on access to justice in at least four ways. First, it has a substantive provision on access to justice: Article 48 states that 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.”
Second, Article 22 makes it easy for persons who have disputes about human rights to go to court either for themselves or on behalf of others, especially those who cannot act on their own behalf. This type of access is broadened by Article 258 to violations of any provisions of the constitution.
Third, Article 50, dealing with fair hearing contains provisions that create facilitative mechanisms to ensure that court processes are fair, especially to the poor. It says that those with disputes have a right to a lawyer (which means a lawyer they hire themselves), but importantly requires that an accused person have an advocate assigned “by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”
Finally, Article 159 provides for some minimum principles that should guide access to justice, including that justice shall be done to all irrespective of their status, it should not be delayed and that procedural technicalities should not be used as a bar to achieving substantive justice.
In many ways the access to justice provisions have been revolutionary in changing the manner in which justice has been administered since the promulgation of the 2010 constitution, perhaps the greatest positive impact coming from Article 159 principles and Article 22 provisions.
Judiciary efforts at enhancing access to justice
Through the principles contained in Article 159, judicial officers are required to do whatever they can to reduce the levels of anxiety of those who come before them, especially the unrepresented persons. Most people who attend our courts today are pleasantly surprised by the courtesy shown by most of the judicial officers. Court processes can be intimidating and stressful. Even those who wield great authority in the society feel that aura when in court, and often look and feel vulnerable when in court. If courts then can be intimidating to Presidents and kings, one wonders what they can do to mere mortals.
Fortunately, the Kenyan judiciary has been working hard to ensure that courts are, and feel friendly enough. Through small but significant gestures, judges and magistrates are finding ways to make courts more friendly. Many magistrates and judges now start their sessions by extending greetings to those in the courts, an act that humanises the judges and makes it easy for those attending court to present their concerns. Perhaps most commendable has been how most judicial officers now deal with unrepresented persons in court, mostly taking time to explain the proceedings to them and trying to find creative ways to ensure that the overbearing court environment does not inhibit their ability to articulate their case and to receive substantive justice.
Additionally, access to justice has been enhanced by the introduction of the National Council on Administration of Justice (NCAJ) and Court Users Committees (CUCs) (including police and prison services, children’s departments, civil society organisations, the LSK, and paralegals). While the achievements of the NCAJ, a seemingly elitist and Nairobi based organ, are hard to publicly quantify, CUCs on the other hand are having a lasting impact on how justice is administered and delivered in Kenya. CUCs are local accountability forums introduced by the judiciary to ensure that consumers of justice are able to provide feedback on how the judiciary works, and to propose ways that delivery and access to justice can be enhanced. They have become the vehicles that make local communities feel connected with the justice system.
Article 22 and Access to Justice
In many ways, Article 22 is revolutionary. Before the 2010 constitution came into force, it was very common for courts to insist that anyone who brought a suit had to show that he or she was personally, directly and substantially affected by what they intended to challenge in court. Courts also insisted that no one could maintain a suit on behalf of another. This meant that those who faced constant abuse, such as evictions or labour malpractices, but who did not have means to sue could never access justice.
Moreover, courts constantly engaged in hair splitting on technicalities to essentially defeat justice. In fact, this was the story with Kenneth Matiba following 1992 general elections. When, after the elections, Matiba sought to contest the outcome that saw former President Daniel Moi declared the winner, the courts threw out his case on the basis that his wife, and not he, had signed the supporting court documents. The court did not care that his detention had left him disabled, unable to sign on papers and hence the reason his wife did so on his behalf. Thus, while it is true that the former constitution had little to facilitate access to justice, many judicial officers were also too eager to frustrate whatever opportunity there was for the poor, human rights advocates, or those in opposition to the government to try and access justice.
Article 22 (and its corresponding provision outside the Bill of Rights Article 258) allows everyone to go to court whenever their rights are infringed. But there is more. Article 22 also allows anyone to go to court on behalf of another person whose rights are infringed especially where there are good reasons why the affected person is unable to go to court. Additionally, the Article provides that a person can go to court in the public interest. Basically, the cumulative effect of Article 22 is to make it impossible for the courts or anyone else to shut the door on anyone seeking to access justice.
Commendably courts have been very keen to give full effect to Articles 22 and 258, including finding creative and just ways to sustain cases that do not conform to the traditional format of proceedings. There have been efforts by a number of judges and magistrates to work with, or facilitate litigants to ensure their disputes are heard by the courts, including in some instances waiving fees that need to be paid to court to bring litigation.
But at a substantive level, Article 22 has had significant impact in regard to access to justice. Of note are the many cases where courts have protected persons living in informal settlement from facing arbitrary evictions. Through Article 22, people requiring retroviral drugs have received reprieve by being allowed to access cheaper generic medicines, even where pharmaceuticals had managed to lobby Parliamentarians to pass a law that made access to cheaper generic drugs an offence. The positive stories of Article 22 are endless.
Conclusion
This Article has painted a rosy picture, and deservedly so, on what the courts and communities are doing to facilitate access to justice. However, many challenges abound. Among these challenges is the lack of a proper and functional legal aid system that is required by the constitution. That will be the subject of next week’s Katiba Corner.
The author is the Executive Director of Katiba Institute