Human rights violations continue to be perpetrated in Kenya and around the world because people are unaware of their rights. It is for this reason that legal aid in the form of legal education and assistance increasingly seems to be a necessity. There is an overwhelming number of Civil Society Organizations (CSOs) working to provide legal aid in Kenya for example Kituo Cha Sheria, the Kenyan Section of the International Commission of Jurists, Legal Resources Foundation and the Law Society of Kenya among others.
It is worth noting that provision of legal aid requires better support of the State as its duty in promotion and protection of human rights. Moreover, in order for citizens to participate effectively in public policy, they must be well educated and informed. In essence therefore, effective human rights protection requires recognition of the State’s obligation as the duty bearer. FAIR HEARING The right to legal representation is anchored in Articles 49 and 50 of the Constitution of Kenya which provides for the rights of an arrested person and fair hearing respectively. Kenya enacted the Legal Aid Act in 2016, a step that would facilitate the implementation of the right to access to justice as guaranteed in Article 48 of the constitution of Kenya.
The enactment is also a sign of Kenya’s commitment under international and regional human rights instrument to provide State funded legal aid and education as conduits to enhancing access to justice. These instruments include the Universal Declaration of Human Rights, The African Charter on Human and Peoples Rights, among other UN and AU Declarations and statements of Principles. The Legal Aid Act, 2016 has broadened the definition of legal aid, terming it as legal advice, representation, knowledge, legal awareness through education and recommendation of law reform and advocacy work. The Act established the National Legal Aid Service (NLAS) whose mandate is to establish and administer a nation al legal aid scheme that is affordable, accessible, sustainable and credible.
The Act envisions a legal aid scheme that provides affordable and credible legal aid services to the indigent persons, legal awareness, support to community legal services and provision of a legal aid scheme to assist indigent persons to access legal aid. The Act provides a rigorous step to determine whether such persons would be eligible for such provision. Legal aid services are not available to everyone. Section 36 of the Act limits the same to persons who are indigent and are resident in Kenya. The main premise for seeking legal aid services is to demonstrate that one is indigent and such status has to be determined by NLAS.
South Africa is among the few countries in Africa that has a successful legal aid scheme. The Legal Aid Act of 2014 established a supervisory board of the legal aid service which facilitates indigent peoples’ access to justice in relation to matters that concern their livelihood. The Board adopted a four-pronged approach, including the operation of justice centres, cooperation agreements, impact legislation and a national legal aid internship programme. The establishment of justice centres as State funded entities in South Africa has seen the efficiency of delivery of legal aid in a more decentralized way, as opposed to dependency on the judicial system. These justice centres are focused on quality service provision and incorporate qualified public defenders, legal aid service providers and interns to ensure quality service to the poor and the realization of the right to access to justice. INCREMENTAL PROCESS Implementation of the Legal Aid Act, 2016 has been a gradual and incremental process. Four years since the enactment of the Act, all processes and procedures for full implementation of the Act should be up and running. The gain under the Act thus far has involved legal recognition of paralegals and accreditation of CSOs to widen the scope of legal aid providers from just lawyers. The role that CSOs such as those mentioned above in providing legal aid cannot be gainsaid. They have provided training of community and prison paralegals and established justice centres across the country to serve a wider population.
These justice centres are managed by the trained paralegals. However, there is little to no support to CSOs in terms of funding from the state. One of the foreseeable challenges to implementation of the Legal Aid Act, 2016 is the quality of services. The idea of ‘free’ services seems to illicit a lack of trust in the quality of service provision. Furthermore, judging from the small number of lawyers who provide pro bono services, provision of legal aid by legal aid service providers within the meaning of the Act may not come to fruition due to the financial advantages of private practice. Additionally, lack of awareness of the access to legal aid by the poor and marginalized as provided in the Act may be a hindrance to its implementation. In order to mitigate this challenge, a collaborative process between CSOs and government to provide information on the opportunities in Act is necessary. In conclusion, it is time to view legal aid provision through the human rights perspective rather than the ‘welfarist’ view whose main objective is implementation of projects.
Legal aid is integral to realization and protection of many rights, including the right to access to justice. The state may consider employing strategies which give legal aid the status of a human right and work closely with CSOs to implement the Legal Aid Act, 2016.
Janet Kosgei- LAED
Kituo Cha Sheria.