Over the last several months, Katiba Institute and Social Justice Centres Working Group have conducted legal aid clinics around the country.
The clinics, a project focusing on enhancing prevention and response to gender-based violence, provide an opportunity for people to receive free legal advice from trained paralegals and advocates.
I was fortunate enough to participate in clinics in Kayole, Kiamaiko, Mukuru kwa Reuben and kwa Njenga and Kibera in Nairobi, as well as Kabarnet in Baringo county.
Although we were able to help many people, the scope and complexity of the issues presented to us were overwhelming and heart-breaking (even for a lawyer).
We could only scratch the surface of the issues, and the depth of human suffering and the inadequacy of Kenya’s legal aid system could not help but cause deep misgivings. (The Norwegian Embassy funded the project.)
We saw very many examples of how the system falls short. Still, I will focus on two.
Jane*, a commercial sex worker living with HIV-Aids, was physically assaulted and raped at a bar and reported to the nearest police station.
The police neither documented her complaint nor initiated an investigation because she was a sex worker.
Similarly, Anne*, a disabled and pregnant woman, was raped and miscarried but felt unable even to report the incident because of the fear that the police would do nothing to assist her, or do anything about it, because she was disabled.
(*Not their real names, of course.)
HOW LEGAL AID MIGHT HELP
Due to the failure by the police to document these events and forward the files to the Director of Public Prosecutions for prosecution, the best that could be offered to Jane and Anne during the legal aid clinics was legal advice on how to go about such incidents in the future.
Such cases show tolerance of violence against women, and encourage it. This is true whether the cause prioritising custom or tradition over the respect for fundamental freedoms and rights of women, or simple male prejudice.
If there had been a legal aid clinic readily available at the time, it would have provided a watching brief opportunity to help protect the rights and interests of victims of a crime, including enabling the victims to play the role in a trial, if any, that the law now allows.
The purpose of watching brief is not to ensure a conviction takes place but rather to guarantee that the criminal process is conducted well to bring about just outcomes.
THE CONSTITUTION
It does not have to be this way. Many of the Constitution’s provisions are geared toward eliminating human suffering. Meaningful access to justice lies at the heart of these objectives.
The preamble promotes the fundamental values of human rights, equality, freedom, democracy, social justice and the rule of law. Article 48 guarantees equal protection of the law for all.
It also demands “justice must be done to, all irrespective of status” and that all state organs must ensure access to justice for all persons. Any fee required must be reasonable and not impede access to justice.
Additionally, Article 50 (2)(h) provides that every accused person has the right to have an advocate assigned to them at the States’ expense “if substantial injustice would otherwise result”, and to be informed of this right.
That last clause seems very clear, though you can imagine how hard to would be to immediately set up a scheme to provide lawyers to everyone who would suffer substantial injustice. And it only applies to accused persons in criminal trials (not what Jane and Anne would have needed).
A proposal in the Bomas draft Constitution (2004) for a public defender office disappeared during the Committee of Experts process. Unfortunately, it took some years before the National Legal Aid and Awareness Policy was adopted in 2015, followed by the Legal Aid Act, 2016.
The Act resulted from a rigorous campaign by civil society organisations and their partners in the justice sector even before the promulgation of the Constitution. Civil society organizations offered legal aid in Kenya even before a legal framework was put in place. And the scheme of the Act relies heavily on continued civil society contributions.
The legislation, therefore, did not initiate legal aid but came in to provide a framework for what was already taking place. This is an improvement because before the enactment of the Legal Aid Act, the State had no obligation to provide legal aid services.
WHY ARE THINGS STILL SO BAD?
If the Constitution, law and policy all point to the same objectives, why are Jane, Anne - and thousands like them – still suffering? These processes are not perfect; the organizations are short-staffed, underpaid, and under-resourced.
They will never be able to address the need fully. And they are under-appreciated; many people still perceive ‘free’ services to mean ‘inadequate’ services. This, of course, is wrong.
Recent events have shown that public interest lawyers can go toe to toe with better resourced and many better-paid advocates. Those who dedicate their professional lives often at the cost of their financial comfort, are to be commended.
But the new right in the Constitution was not fully embraced by the courts – the Court of Appeal called it “aspirational” which means a hope only, not enforceable until law was passed.
This was at odds with the Constitution, which did not want the lack of court rules (or law) to stand in the way of enforcing the rights (Article 22(4)).
The judgment was also contrary to the preamble on promoting the fundamental values of human rights, equality, freedom, democracy, social justice and the rule of law, and to Articles 48 and 50 (2)(h) which are described earlier in this piece.
This approach locked out many deserving minority groups, people living with disabilities and financially disadvantaged Kenyans from accessing justice.
Once something is seen as merely “aspirational”, its urgency is obscured, and it seems to be perpetually placed on the back burner. The same language was used of the right to housing in an early case under the Constitution. Sometimes our judges have not seemed fully attuned to the human rights implications of the 2010 Constitution.
The idea of legal aid and education is based on the assistance to the socially and economically disadvantaged persons to enable them to understand and protect their rights. It is not about charity or generosity to them – but about their rights.
The reality is that the Kenyan legal and justice system is not equally accessible to everybody. Minority groups and tribes, people living with disabilities and financially disadvantaged people often experience difficulty accessing justice. Human rights violations have been increasing in Kenya and around the world because people are not aware of their fundamental rights and freedoms. As a result, legal aid and assistance become the more necessary.
Legal aid is an integral part of realising and protecting fundamental human rights and freedoms and access to justice. To allay the challenges to providing legal aid services, the government and civil society organisations need to collaborate and provide information on the opportunities that the Legal Aid Act provides. How many readers have even heard of it?
There is also a need to ensure the legal aid plan of action, institutions established under the Legal Aid Act and civil society organisations are well funded by the Exchequer and donor partners to ensure that the needy and marginalized in the society get access to legal aid.
Further, players providing legal aid such as the government, civil society organisation, lawyers and development partners must ensure that legal aid is not associated with the tag “low quality” since there is a tendency to associate freebies with low quality.
If people are more aware, and are reassured that they will not get an inferior service, more will seek legal aid. Over time these tendencies - better finding and better awareness of and faith in the system - will reinforce each other.
The author is legal consultant and researcher at Katiba Institute
