How legal aid can help keep poor, innocent Kenyans out of prisons

Peter Kyalo, a guard, was walking home from his place of work on August 10, 2014 when he suddenly heard somebody shouting at him.

He did not pay much attention to the incident until he noticed a crowd milling around him.

He was shocked to be told that he had been identified by Francis Njuguna, as one of the men who had robbed him the previous week.

Mr Njuguna was walking with his wife past 6pm on August 3, 2014, when a gang of three dragged them into a nearby bush, undressed and robbed them.

The crowd insisted that Mr Kyalo be taken to the police station, where the police beat him up and demanded he disclose the whereabouts of his accomplices.

He pleaded his innocence and maintained that he was a victim of mistaken identity but the police would hear none of it.

ROBBERY

Mr Kyalo earned a 10-year jail term after the magistrate’s court on June 20, 2017 found him guilty of robbery with violence.

A year later, he regained his freedom when High Court Judge Luka Kimaru acquitted him on appeal after establishing that he was a victim of mistaken identity.

“Taking into consideration the fact that the complainant, as a victim of the robbery, may have been traumatised during the incident, it cannot be ruled out that the complainant may honestly be mistaken that he had identified Mr Kyalo as a member of the gang that robbed him,” observed justice Kimaru on June 20, 2018.

Mr Kyalo’s experience mirrors that of many others who for one reason or another, end up suffering miscarriage of justice which see them languish in jails for crimes they never committed.

A report titled “The Criminal Justice System Audit Report,” published by the Judiciary through the National Council on the Administration of Justice (NCAJ) in 2017 found that Kenya’s criminal justice System is largely skewed against the poor.

JAIL TERMS

The report was an indictment of a system that is expected to guarantee justice to people from all walks of life buts ends up condemning the innocent poor to jail terms for crimes they never committed.

According to Chief Justice David Maraga, “it is only when justice reaches the weak, and the rule of law protects the indigent, that we, as a country, can say that our Constitution is living up to its judicial and developmental promise of equality and equity.”

In an attempt to address the challenge of injustice on individuals who cannot afford a lawyer, Parliament passed the Legal Aid Act on April 22, 2016.

It establishes a national legal aid service through which the poor can have access to lawyers at the expense of the State.

The guiding principles and objectives of the Act are anchored in constitutional provisions and spirit contained under Articles 19 on rights to fundamental freedoms, Article 48 on right to access justice and Article 50 on the right to choose counsel and be informed of legal representation.

A lobby, Kituo cha Sheria, has been assisting several persons who cannot afford legal services to access pro-bono lawyers. It has also trained several paralegals to assist such persons.

FUNDS

The lobby’s director, Mrs Gertrude Angote, questions why the government has not allocated funds to operationalise the Act. The State is supposed to allocate funds to be used to pay lawyers hired to represent those who can’t afford lawyers.

“It is possible that with a lawyer, a defective charge can be brought to the attention of the court early enough, and the charge can be amended. A majority who can’t afford a lawyer, are languishing in remand, don’t understand the court language or what they are charged with. They may also fear the court,” Mrs Angote said.

Lawyer Felix Odhiambo of JK Felix & Smith Advocates LLP, says the best time to rectify a defective charge in a criminal process is the trial court. Past that stage, it becomes near impossible to correct such a charge as the appeals court often relies on the trial court’s records to make a finding.

“The appeal court rarely admits new evidence, and it is therefore very difficult to rectify the problem which occurred in the trial court especially if one is not being represented by an advocate,” Mr Odhiambo observes.

“If there was a problem in the trial court’s record, then the problem replicates in the appeal court. And more importantly, if the accused could not afford a lawyer at the trial court, it becomes even more difficult to afford one in the higher court,” he adds.

DISPUTE RESOLUTION

Human Rights Advocate Samuel Karanja says there is need to encourage the Alternative Dispute Resolution (ADR) mechanism that will allow people to talk to each other without being bound by the rules of evidence.

All for Justice Project

“Maybe somebody simply wanted to be told sorry but since this option was unavailable in a formal justice system, which is very technical and legal, there is wastage of time and neither the victim nor the accused will be able to fully appreciate the outcome of the case,” he notes.

But criminal trial is set to improve drastically if a raft of proposals contained in a draft report being prepared by the Director of Public Prosecutions are adopted.

The report will enable the DPP’s office to effectively respond to its core mandate within the criminal justice system.

In the report — All for Justice Project — the DPP seeks ways of ensuring the country has quality prosecution with an accused being represented by a lawyer to assist them understand why they are in court and to ensure they obtain favourable bail terms.