Everyone is entitled to legal representation

Unlike medical care and education, which receive government support, access to justice in Kenya still remains a big concern.

This is largely due to the fact that legal aid, which is essential to attaining access to justice, is still considered a luxury that must wait as the government strives to meet “the pressing needs of the people”.

This can be attributed to the impression that exists in our society that legal issues are secondary concerns that should be addressed by the individual on his or her own account even when they do not have the means or technical know-how.

The Constitution of Kenya 2010 came with great promise to Kenyans for the right to justice.

Article 48 provides that the State shall ensure access to justice for all persons.

Unfortunately, many Kenyans are of humble means and cannot afford the services of lawyers.

Also, many people fear to approach lawyers because of certain perceptions they have of them.

Due to these factors, a large portion of the population does not have access to legal representation while others fall prey to quacks and crooked lawyers.

The Constitution concentrates on the rights of accused persons, with special reference to indigent persons, providing that an accused person will have the right to be assigned an advocate at the expense of the State “if substantial injustice would otherwise result”.

This provision, although progressive, presents its own difficulties as one would have to delve into the question of when substantial injustice would result.

Consequently, it has been presumed that the right to an advocate at State expense is available only in capital offences.

This is a grave error for it is natural that substantial injustice would result in any case where a poor person is in conflict with the criminal justice system.

Lay people have little or no understanding of the mechanics of the criminal justice system and can end up being convicted, not because they are guilty, but because they do not understand it well enough to be able to interact with it appropriately.

ADDRESSING PROBLEM
The absence of clear legal provisions on legal aid for civil cases leaves a big gap that must be addressed to ensure that the social and economic rights of all people are respected.

To address some of the problems with legal aid, Parliament recently enacted the Legal Aid Act, which came into force on May 10, 2016.

For the first time in the history of this country, legal aid attained formal legal recognition away from ad hoc initiatives in the form of pro bono legal services, pauper briefs, and legal aid clinics.

Under the Act, lawyers engaged in pro bono legal services and who take up pauper briefs will receive structured support and incentives.

Additionally, lawyers and law students as well as NGOs involved in legal aid clinics will get the necessary support to ensure that all Kenyans have access to justice in a timely fashion.

The law establishes the National Legal Aid Service (NaLAS), which is to take over from the ad hoc National Legal Aid Awareness Programme in the Attorney-General’s office.

This new body is charged with, among others, the duty of establishing and administering a national legal aid scheme that is affordable, accessible, sustainable, credible, and accountable.

The service has the power to support legal aid providers, train persons in legal aid, educate the public on legal issues, and increase legal awareness.

The Act also establishes the Legal Aid Fund, which is administered by NaLAS, to finance legal aid activities.

With the creation of the National Legal Aid Service, it is to be hoped that initiatives shall be established across the country and that they will be available to all deserving Kenyans.

Ideally the service should establish offices in all the 47 counties and the major towns.

Mr Wabuyabo is managing partner, Wabuyabo Lukova & Company Advocates. [email protected].