Background
Access to
justice is a concept that is
not only limited to the existence, availability and accessibility of redress
mechanisms but also encompasses a wide range of factors that contribute to
people’s self realization with regard to their social, economic and cultural
aspirations. These other factors include but are not limited to, the awareness
of people of their rights and obligations under law; and, their capacity to
demand for and use justice mechanisms available to them. Justice was described
as ‘truth in action’ by one Benjamin Disraeli[1], once
the British Prime Minister. In this context, ‘truth’ can only be the law or
what is legally acceptable in a democratic society governed by the rule of law.
It therefore follows that access to justice must be regarded as a concept where
people have what is legally entitled to them whether in solving disputes or in
their daily interactions.
Access to justice for the poor is an emotive
issue that requires one to identify what is legally entitled to the
economically challenged members of society and thereafter their capacity to
gain access to such entitlements. The discussion contained herein highlights,
the legal safeguards on access to justice available; state of access to justice
for the poor; and, suggestions on improving access to justice for the poor.
Legal Safeguards on Access to Justice
Access to
justice as a tenet for democratic societies and the rule of law has received
international recognition as espoused in some international instruments. For
example, the Universal Declaration of Human Rights[2] and the
African Charter on Human and People’s Rights[3] provide
for the right to legal representation as a minimum core right under the due
process of Law. More importantly, the Constitution of Kenya (2010) brings to fore
a wider scope of responsibility not only to individuals but also the government
and non-governmental institutions with regard to access to justice. The biggest
exposition of this endeavor can be drawn from the Bill of Rights[4] which
not only provides specifically for the right of access to justice[5] but
generally makes provision for the protection of these rights and aspirations by
Kenyans.[6] Access
to justice being a basic principle to the rule of law is also provided for as a
principle of governance.[7]
Additionally, the
Constitution provides that judicial authority is derived from the people and
exercised by the judiciary on their behalf.[8] This
illustrates that all people are essentially equal before the law and should
thus benefit from equal protection by the law. Independence of the judiciary as
protected under the Constitution (2010) is also vital for the impartial
execution of its mandate. The Constitution in particular provides that:
“In the exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any person or authority.”[9]
The concept of
devolution as espoused under the Constitution (2010) also promotes access to
justice in its most practical form. This is achieved through making government
services available and also making provision for public participation on
matters of governance. All these efforts are aimed at empowering the people to
access their fair share of government resources and services. [10]
State of Access to Justice for the Poor
Access to justice
for the poor in Kenya has been elusive since the colonial period. The poor and
marginalized in society have had no recourse to justice due a myriad of
reasons. One of the reasons for the deficiency in accessing justice for the
poor is the lack of accessibility of judicial systems. Due to the imbalance in
infrastructure development in the country, many marginalized areas have not
benefited from government institutions and services. Successive governments
have over the years neglected developing judicial systems in marginalized areas
and especially those inhabited by economically challenged individuals. This
problem is further propounded by the lack of facilitation of the Judiciary by
the Government to undertake its mandate. For example, as at March of 2012,
Kenya’s population of 40 million was served by 300 magistrates, 60 high
court judges, 15 courts of appeal judges and 7 Supreme Court judges[11].
Many of the
economically challenged individuals are also not educated and therefore cannot
comprehend the laws of the land effectively. Lack of education also leads to
exploitation of individuals on various fronts one of which is accessing
justice. They are not able to comprehend the judicial processes and as a result
cannot benefit from the same.
The justice system
is also regarded to be relatively expensive especially when it comes to
litigation. Majority of Kenyans find it difficult to afford the services of
advocates and avoid going to court altogether. The Kenya justice systems continues
to consistently suffer from very lengthy delays in criminal and civil trials,
limited entitlements to bail or a limited ability to meet bail conditions. In
contrast, others who have access to family and financial support can readily
meet bail conditions or, in some cases, bribe their way to freedom, both which
reinforces the already deep divide between rich and poor. The poor are not able
to sustain their defenses or claims in court as resources run out in the
process.
Provision of
legal Aid and awareness programmes has largely been left solely to
non-governmental organizations. Most of these NGOs are based in the urban areas
and do not even have the capacity to expand their programmes as they are funded
by international donors. Their services thus become inaccessible to the target
audience of their services.
It is also
evident that Traditional Justice Systems[12] within
communities have either broken down or they are no longer sustainable. These
justice systems included clan of elders who would be instrumental in solving
family disputes and clan issues. Now all these issues are handled by the courts
making it difficult for them to function effectively. Traditional Justice
Systems must thus be restored and facilitated as envisaged by the Constitution
(2010). This will provide an avenue for ADR where people can solve disputes
expeditiously and effectively within the comfort of their localities.
Reforms
The Judiciary
reforms that are still ongoing herald a breath of life to the efforts aimed at
improving access to justice for the poor. The Judicial Transformation Framework
2012-2016 is cognizant of the fact that the Constitution of Kenya, 2010
mandates a reconstruction of Kenyan society according to the ideals and values
expressed in Articles 4 and 10, and in a host of other provisions. The
judiciary is thus tasked to undertake its reforms with much more zeal as it is
the bedrock for access to justice for the poor and marginalized.
The mechanisms
traditionally used to advance the concept of Access to Justice have a tendency
to be time consuming and expensive for the planners and participants alike. It
therefore follows that the use of innovative technologies should be
considered as a viable option for legal aid providers especially in
disseminating legal awareness information in a relatively cheap and easily
accessible manner as opposed to the traditionally accepted seminars and workshops. In addition it is important
for state actors to enhance the capacity of the police force as they play a
very important role in provision of justice to the people. It is important to
have an educated police workforce that is well versed with human rights
provisions and appreciates the intricate nature of their work in disseminating
justice.
It is light of
the above that the Judiciary should come up with a judicare system that is
available in all criminal and civil court locations. In doing this, much
emphasis must be given to making the people aware of their rights and
obligations under the law and as such appreciate the very function of justice systems.
The Legal aid
Bill 2012 is another important phase in advancing the efforts aimed at
improving access to justice for the poor. The Bill in particular provides for
the participation of law students in the provision of legal aid. This is a
great milestone as it gives impetus to the efforts that academic institutions
have shown in the provision of legal aid and awareness services to the
community and subsequently operates to strengthen co-operation between the
stakeholders in provision of legal aid. The Bill also provides processes and
structures aimed at improving access to legal services to indigent members of
the society especially through among other things: providing for a verification
process to access the need basis for an application and the status of such
person to require the services; creating a pool for funds and resources and the
necessary safeguards to management of such funds; and establishing structures
to effectively manage provision of legal aid in Kenya.
In addition it
is paramount that the provision of pro-bono services by the advocates should be
made more endearing by having a beneficial account on their professional
profiles. Provision of access to justice for the poor is not an end in itself
but a destination that needs all state actors on board and as such should
benefit from concerted efforts from all in the justice and administrative
systems.
[1] Benjamin Disraeli was a British Prime Minister (21 December 1804 – 19 April 1881),
parliamentarian, Conservative statesman and literary figure. Made the
declaration on justice in a state speech he made in 1851.
[2]
Article 7.
[3]
Article 7.1.
[4]
Chapter 4 under the Constitution of Kenya (2010).
[5]
Article 48 under the Bill of Rights in the Constitution.
[6]
Article 20 of the Constitution (2010) on Application of Bill of Rights.
[7]
Article 10 (2) (a) and sixth preambular paragraph to the Constitution.
[8]
Article 159 of the Constitution (2010) on Judicial Authority.
[9]
Article 160 (1) on Independence of the Judiciary.
[10]
Chapter eleven on Devolved government and in particular Articles 174 and 175 of
the Constitution (2010) on Objects and Principles of Devolved Government.
[11]
This was witnessed by the Truth Justice and Reconciliation Commission during
their Thematic Hearings on Access to Justice.
