Hi wakili, I am struggling with a private legal matter. Those I am up against are very influential and can afford great lawyers. I can’t afford to hire one, but I hear some lawyers take pro bono cases. How do I get such lawyers, and will they do a good job?
The issue for which you require legal support remains unknown. However, the message in the text helps readers reflect on four fundamental concepts, whose realisation, amongst others, may amount to justice. The first is the concept of inherent dignity. The right to intrinsic dignity demands that every human being access all the opportunities within their path of individual or collective efforts because of being human. In a constitutional context, which in Kenya is found in Article 28, it is the basis for an individual’s entitlement to rights and curtail interference in exercising the rights.
The second concept is non-discrimination of and by the law equality is a right provided for in the Constitution in Article 27. In Clause 1, it is provided that equality before the law includes the right of a person to use it and receive unqualified protection by it, alongside gaining from every benefit that accrues. Clause 2 reemphasises equality as a person’s right to full and equal enjoyment of all rights and fundamental freedoms. Your concerns are rooted and canvassed in the Kenyan Constitution, which is foundational to getting representation.
The third concept is a fair trial. The Kenyan Constitution in Article 50 Clause 2 provides that every accused person has the right to a fair trial, including the right to be presumed innocent until the contrary is proved. Similarly, for such a person to choose and be represented by an advocate and promptly informed of this right. In criminal jurisprudence, a fair trial presupposes a trial before an impartial judge or magistrate, a fair prosecutor, and an informed accused person in an atmosphere of judicial calm. In the Indian case of Zahira Habibullah Sheikh and Others versus the State of Gujarat, the Supreme Court proclaimed that denying a fair trial is as much an injustice to the accused person as it is to the victim and society.
The fourth is the concept of justice. Article 48 of the Constitution gives every person the right to access justice. This Article, if read with Article 19 Clauses 2 and 3, allows us to canvass how law through institutions helps adjudicate matters between warring parties. Clause 2 seeks to recognise and protect human rights and fundamental freedoms as preservation of the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings. While Clause 3, paragraph (a) emphasises each right and fundamental freedom to belong to each individual and is not granted by the state, in addition to paragraph (b) that provides such rights not exclude other rights and fundamental freedoms not in the Bill of Rights, but recognised or conferred by the law, except where there is inconsistency with the Constitution.
Among the institutions is the Court of Law. It is provided in Article 20 Clause 3, paragraph (b), that the court, in applying any provision in the Bill of Rights, shall adopt the interpretation favouring the enforcement of a right or fundamental freedom. Moreover, Clause 4 Paragraph (a) provides that in interpreting the Bill of Rights, a court, tribunal, or other authority shall promote the values that underlie an open and democratic society based on human dignity, equality, equity, and freedom.
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The Legal Aid Act of 2016 gave birth to the National Legal Aid Service (NLAS), whose primary mandate, and closely working with the court, is to ensure that people needing legal aid access such service. Section 3 of the Legal Aid Act states, as part of NLAS’ institutional objects to be the provision of affordable, accessible, sustainable, credible, and accountable legal aid services to indigent persons in Kenya per the Constitution.
A specific function originating from the aforementioned object is captured in Section 7, Clause 1, paragraph (l), which commands NLAS to facilitate the representation of persons granted legal aid under the Act.
While legal aid is assured in Section 35, the Act also flags out cases or matters that are excluded through the authority given to NLAS. The tenets of equity prohibit these matters. The two applicable in this scenario are: he who comes to equity must come with clean hands, and equity follows the law. Therefore, Section 37 of the Act outlines that legal aid shall not be provided in civil matters related to a company or corporation, trust, public institution, civil society, nongovernmental organisations, or any other Artificial person. Further, it prohibits legal aid on matters relating to taxation, recovery of debts, bankruptcy, insolvency, and defamation. In certain circumstances, an individual with a case already before a magistrate or judge can request the court for legal representation. It is then likely the court will liaise with NLAS to help such an individual realise their right to a fair trial.
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