KATIBA CORNER

Public access to law is important, and Kenya is a leader

Lawyers have tended to think of themselves as the priests of the law.

In Summary

• Many countries are now trying to help individuals who cannot afford a lawyer to prepare for court cases themselves.

Kenya Law books on display
Kenya Law books on display
Image: COURTESY

“Ignorance of the law is no excuse”. This old saying is mostly relevant to criminal law.

If, for example, a man is prosecuted for having sex with a sixteen-year-old girl, he cannot say “I did not know it was a crime”. But if the girl consented, and he can convince the court that he, reasonably, believed she was 18, he will escape conviction.

Even in other situations, it is good for people to have an idea about the law. When people are taking so much about changing the Constitution, it is a good idea to have some understanding of what it says. It would be great if Kenyans knew what the powers of counties were, or understood more about how political parties should operate, or who the Director of Public Prosecutions (so important in corruption cases) is.

Lawyers have tended to think of themselves as the priests of the law. They revealed only enough of the law to be able to advise clients and make them dependent on them. They preserved their place as intermediaries between the public and justice. And they used obscure language (with sprinklings of languages like old French and Latin) to obscure what may be a simple reality. And this secrecy preserved a monopoly for them – and, like other monopolies, has been lucrative.

CHANGE OF APPROACH

There are many signs of a change of attitude, even by lawyers. One is the “plain language in law” movement. Many countries are trying to make the form of their laws less complex: No unnecessary technical terms, and shorter sentences, for example.

Second, it has never been the case that you must use a lawyer to go to court. Only a few documents – often about land – must be drafted by lawyers. It is still wise to use one for many others that are highly technical, like those on setting up a company. And, almost certainly, many people in Kenya are convicted of crimes who would not be if they had a lawyer to advise and defend them.

Many countries are now trying to help individuals who cannot afford a lawyer to prepare for court cases themselves. Courts often have officers who will help people who represent themselves by explaining the procedures. Courts have produced simple written guides for these “do it yourself” litigants. Judges are encouraged to ensure that they make it clear what they are doing, what they need from the parties and what they have decided, so that these unrepresented litigants do not leave the court unsure what has happened in their case.

Another development that likes to call itself a “movement” is free access to law – using the internet and its possibilities for spreading information reasonably cheaply to make at least the basic documents of law available to most people.

IMPLICATIONS OF FREE ACCESS TO LAW

Making it much easier to get access to the law and read for oneself has several implications.

First, it respects the people for whom the law is supposed to be made and administered. It makes it possible for the people to understand the Constitution, understand their rights better, and to participate in decisions that affect them, as the Constitution promises.

Second, it makes it more possible for people to represent themselves in court.

Third, it helps to make the courts, and legal practice, a more level playing field because the lawyers for the poor (lawyers who themselves may not be as rich as those who represent the wealthy) are also able to get access to the legal materials they need, even if they cannot afford private electronic databases or expensive printed law reports.

Fourth, it broadens the possibility of the less wealthy becoming lawyers. Poorer law students can get full access to the raw materials of the law.

Fifth, by enabling online access to court decisions, it improves the quality of legal arguments, and new court decisions. The truth is that formal printed versions of Kenyan laws, and court decisions, fell behind in the past, and are still not fully up-to-date. And printed copies were in libraries only. Free internet access to the law is revolutionary.

Being able to read the law is vital for accountability. We can all judge the behaviour of public officers more effectively, especially because we can study the Constitution. When we read the law made by Parliament, we can decide for ourselves how well they are carrying out their tasks. And the courts, too are more accountable: it is much harder for judges to be corrupt if people can read exactly why they decided cases as they did. Their competence, too, is more easily judged.

The free access to law movement has produced its own declaration that says, “Public legal information from all countries and international institutions is part of the common heritage of humanity. Maximising access to this information promotes justice and the rule of law”.

THE CONSTITUTION

Article 35 is about the right of access to information held by the government. It also says “The State shall publish and publicise any important information affecting the nation”. Surely the law is “important information”. This does not include just the Constitution and Acts of Parliament but Acts of county assemblies and by-laws, most of which were made by old local authorities under the old system, important policy documents, and court decisions.

Universal access to information, including to law, also promotes equality (both a national value and a right under the Constitution).

You may be unaware that Kenya has been a leader in this movement. And, unlike many countries, a public , with a significant amount of public money (and other resources too) has led the way. Its official, pompous name is the National Council for Law Reporting, but it is known as Kenya Law and that is its website name: www.kenyalaw.org.

There you will find all national laws (including regulations), with the changes made (but you can also find the way the law was before the changes). These laws are up-to-date and accessible for free. Many of the county laws made under devolution are also there.

There are over 140,000 judgments of Kenyan courts on the site. It takes a new user a little experience to learn how to find them, but occasionally, Kenya Law tweets a link to an important case, or highlights it on Facebook, making it easier and cheaper for most users to find the case.

The website is a treasure house of other things, too. International treaties that Kenya has accepted (and are therefore part of Kenyan law), material from the East African Community, the Government newspaper the Kenya Gazette which you might otherwise never see unless you buy it from the Government Printer.

You can find draft laws (Bills) so you know in advance what is planned. There are links to the (Hansard) reports of Parliament, and the colonial Legislative Council right back to 1911. And a wonderful set of official reports on various matters, the oldest being from 1927; they include one on corruption in Nairobi City Council from 1956, the Ndung’u Commission on the irregular allocation of public land and a host of others.

THE FUTURE

Last week, Kenya Law officially launched its Strategic Plan 2018 - 2022. Among many other initiatives, this plan will address the challenge posed where the formal printed version of the law is not up-to-date, yet the electronic version is.

Kenya Law, the Government Press and the Office of the Attorney General and Department of Justice will work seamlessly together to formulate a framework for law revision, for the benefit of Kenyans to ensure access to formal printed up-to-date versions of the law.

Kenya Law is a resource that Kenyans can be proud of, and should make great use of.

The author is grateful for input from Long’et Terer, CEO of Kenya Law and Janet Munywoki, Deputy CEO, but remains responsible for any errors.