What you need to know:
- The Constitution of Kenya provides for right to access justice under article 48 and right to free legal services where one faces a criminal justice process in article 48 and 50 respectively.
- The Constitution further enshrines the need for legal aid by requiring that an accused should be assigned an advocate by the state and at state expense, if substantial injustices would otherwise result, and to be informed of this right promptly.
- Under Schedule Five of the Constitution, legislation to implement Article 50 on the right to fair trial must be enacted within 4 years from the effective date.
- The Bill establishes a legal and institutional framework for delivery of legal aid services in Kenya and further proposes the decentralization of legal services to the counties and sub counties in conformity with Article 6(3) of the Constitution on access to services
More Kenyans could benefit from free legal representation once a Bill before the Commission for the Implementation of the Constitution becomes law, the government has said.
Solicitor General Njee Muturi said the draft Legal Aid Bill 2013 developed by the National Legal Awareness Programme could also see awareness campaigns intensified.
This would reduce the number of cases that end up in courts due to ignorance of the law and inform suspects of their rights.
“Very few Kenyans who need legal services can afford to pay for them, and most are ignorant of their legal rights,” Mr Muturi told journalists at the Serena Hotel, Nairobi on Monday.
He noted that people who do not know their legal rights can neither claim nor enforce those rights.
“Millions are in need of legal services but are unable to afford the specialised knowledge and skills of the legal professionals,” he said.
According to NALEAP’s acting National Coordinator Caroline Amondi, provision of legal aid for those who cannot afford is critical to ensure justice prevails for all parties in a dispute.
The programme has also developed a draft National Legal Aid and Awareness Policy, 2013 that is currently awaiting Cabinet approval.
Ms Amondi said the Bill and the policy are expected to be enacted and adopted by August this year.
The Bill advocates for alternative dispute resolution mechanisms to speed up the justice process and reduce congestion in courts.
“Courts are struggling with a backlog of cases, some that can be determined through mediation. The partnership with the judiciary will be strengthened once we have a legal framework in place,” she said.
Deputy Chief Legal Officer at the Office of the Attorney General and Justice Department Roselyne Aburili said enactment of the Bill will pave way for free legal services to the poor.
“The state is mandated by the constitution to ensure access to justice. This is a step towards implementing a constitutional provision,” she said.
Ms Aburili added that vetting criteria to identify genuine people in need of legal services will be put in place to discourage joyriders.
“The judiciary is also involved. There will be a legal desk at the Judiciary with a lawyer to specifically deal with such cases so that no one suffers injustice due to inability to hire a lawyer,” said Ms Aburili.
So far, only suspects facing murder charges are provided with a lawyer by the state, and extending the free legal representation to other offenders would see more people access justice.
“The legal aid does not mean helping people escape justice. We are doing away with barriers to a fair trial. We want all parties in a dispute to be at par when they appear in court,” said Ms Aburili.
She appealed to MPs to support the quest for equal justice for all Kenyans to rid the country of a situation where the poor continue to suffer because they cannot afford to hire lawyers.
Currently, NALEAP is running a pilot legal aid programme in Nairobi, Kisumu, Nakuru, Eldoret and Mombasa targeting the police, judiciary, prison authorities, convicts and members of the public on their rights.
The pilot programme is a temporal measure to bring justice closer to people particularly those touching on children rights, marriage conflicts, capital offences and counselling services.