In the United States it is simply referred to as Miranda rights- the Miranda warning– a type of notification customarily given by police to criminal suspects. The dictum that arrested persons must be informed of their constitutional rights. These rights are enumerated to include; the right to remain silent, right against self-incrimination and the right to legal representation. The justices in the landmark U.S. Supreme Court case of Miranda v Arizona,384 U.S436, [in emphasis] stated that information obtained from Miranda could not be used as evidence because he was not informed of his constitutional rights at the point of arrest. These standards and norms have been adopted into both international and municipal law in several countries. In Kenya, the rights of an arrested person are a key component of the Bill of Rights. Article 49 of the Constitution of Kenya, 2010 states that persons arrested are to be informed promptly in a language they understand; the reason for the arrest, the right to remain silent and the consequences of not remaining silent. The constitution further provides that an arrested person has the right to communicate with an advocate and get legal representation, the right not to be forced or to make confessions, to be held in custody separate from those convicted and be brought to court as soon as reasonably possible.
While a lot of these provisions were drafted as a way to correct the mistakes of history, three glaring points come to mind. Firstly, do the Kenya Police always abide by the requirements of Article 49 of the Constitution? Do they inform an arrested person of their rights? Perhaps they do; however, the ‘kuja hapa kijana’ experience is what majority Kenyans associate with the police. Secondly, how many Kenyans know of their Article 49 rights? How many Kenyans are even able to challenge the police at the point of arrest if need be? While this assertion may not be backed by statistics- experience portends that many Kenyan citizens may not be knowledgeable enough hence are often intimidated by the police. Thirdly; the right to legal representation. How many Kenyans can afford competent legal representation? And what happens to those who cannot afford legal counsel? These questions highlight the importance of civic education and legal aid services in Kenya which is the subject of this paper.
Legal aid is defined as the provision of legal services, advice and representation at the expense of the State on the conditions and in accordance with the provisions established under the law and relevant regulation. Legal aid includes legal education, access to legal information and other services provided through alternative dispute resolution and restorative justice programs. A lot of time legal aid is thought of in terms of representing accused persons in court especially those who may not afford representation however, as the definition states, it has a number of disciplines. Kenyans need the basic knowledge on the law of contract and the effects of contracts, succession law and wills, family law and the rights of children and land law- all of this is achieved through legal aid services.
For a long time, legal aid services have been undertaken through an amorphous structure with NGOs and civil society organizations mainly filling the space. A number of scholars have reflected on the ‘injustice’ in the lower courts since a lot of litigants go to court without lawyers and representation hence the need for legal aid services. The development of a legal regime however began with the promulgation of the Constitution of Kenya, 2010. One of the principles of fair hearing under Article 50 is the right to be presented by legal counsel or to be provided representation by the State. This necessitated the enactment and operationalization of the Legal Aid Act No. 6 of 2016 which gives effect to article 19 (2), 48, 50(2), (g) of the Constitution of Kenya, 2010. Section 3 of the Act outlines the objectives of the law as to establish a legal and institutional framework to provide affordable, accessible, sustainable, and accountable legal service, provide a legal aid scheme, promote legal awareness, supporting community legal services and promoting alternative dispute resolution mechanisms. The Act further provides for the National Legal Aid Services (NLAS) which is a body corporate with perpetual succession with the mandate to create a legal aid scheme and do everything pertaining to legal aid in Kenya under Section 7 of the Act which is administered by a board of service.
The other saline feature of the Act is the creation of the legal aid fund which is to be managed by the NLAS. The Act also provides for the choice of accreditation and criteria of accreditation for the organizations that may want to provide legal aid under this Act. The other provisions of the Act include; the duties of the courts, registration of accredited legal aid providers, enforcement of grant on legal aid and offences under the Act. The Constitution as well as the Act is a big and positive move towards access to justice, however, there are a number of challenges that have come to light with regards to legal aid in Kenya
The first challenge is public awareness. There are many Kenyans who are not aware of the option of legal aid. Many poor citizens who may not be able to afford legal representation or advice often lose out as the national legal aid scheme is not known as one of the department under the Office of the Attorney General. The challenge of public awareness often goes hand in hand with literacy levels and accessibility of the areas. The second challenge is capacity. This has two limbs; one is capacity in terms of personnel; meaning that advocates and paralegals to do the legal aid work and capacity in terms of facilities and the geographical area covered. This perhaps is a major challenge as it involves getting more probono lawyers, creating more offices and building networks. As much as the Department of Legal Aid is underway, there is still a lot to be done. The third challenge is financing. It is certainly clear that almost everything costs money. Funding always goes a long way in improving the infrastructure and building capacity. Lastly, the fourth challenge is the nature of legal aid services against the requirement that they have to come from government. For example; public interest litigations against the Government- how are these to be carried out by a department of the same government?
This paper therefore offers a number of solutions to the aforesaid challenges. There is need to do public awareness about legal aid. This may be done through electronic and print media. Away from the usual print and electronic media, there may be need to use community radio stations with grassroots reach as well as vernacular radio stations so as to get to as many people as possible. Community mobilizers and leaders are also an important instrument of public awareness. The challenge of personnel can be solved through collaboration with the Law Society of Kenya. I propose that law firms can be involved and encouraged to take on more pro bono cases by awarding the firms professional points based on the number of cases they take per year. Individual advocates can also be encouraged to take more pro bono cases and then awarded points. Another way is creation of legal clinics in the University and accrediting them so that law students can help with the legal aid services as they are guided through the learning process. Accredited Non-Governmental Organizations also have a role to play too. They can be encouraged to set up and help with legal aid services through tax incentives. Monetary issues can be solved through budgetary allocations as well as partnership with both the private sector and development partners. Lastly, the National Legal Aid Department ought to be a Semi-Autonomous Government Agency ( SAGA) so as to carry out its functions effectively
Ouma Kizito Ajuong’
Advocate of the High Court of Kenya