By Kelvin Njuguna Mugwe
“It is not every man who has the ability to defend himself on his own. He cannot bring out the points in his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it every day” – Lord Denning, MR in Pett vs. Greybound Racing Association Ltd  2 WLR
Hundreds of Kenyans thronged the Milimani Law Courts in Nairobi on September 28, 2015 in pursuit of free legal advice that was being offered by the Law Society of Kenya (LSK). The legal clinic brought to the fore the deplorable state of legal aid and awareness in Kenya, going by the revelations that were made by some of those in attendance. There was clear manifestation that legal aid and awareness is highly coveted by most Kenyans but it remains elusive.
One Elizabeth Atieno narrated how she underwent a career free fall occasioned by her deficiencies in the knowledge of the law. She claimed that she had been arrested on the premise that she had no identification card only to be arraigned in court under the charge of being in possession of illicit brew. She subsequently served a sentence of four months in prison, lost her job, was denied pay for work previously done and plummeted to abject poverty.
The underlying fact in the foregoing is that all these unfortunate happenings could have been avoided had she been exposed the requisite legal aid. Her predicament was not an isolated case as the other Kenyans enumerated their own share of tribulations as well. Justice Richard Mwongo during the clinic was categorical that there was need to come up with laws to guide legal assistance for the poor.
The Constitution 2010 demands that the state ought to ensure that every accused person has the right to have an advocate assigned to him at the state’s expense, if substantial injustice would otherwise result by dint of Article 50(2)(h). An accused can only invoke this Article upon demonstrating that he meets the “substantial injustice would otherwise occur” threshold.
The court in “Dominic Kimaru Tanui vs. The Republic  eKLR, while interpreting this threshold, held that the state, in considering whether to grant legal assistance, ought to do a case by case examination, such as where there are complex issues of law or fact, where the accused is unable to conduct his own defence, or where public interest requires that representation be provided. The court, however, in this instance averred that Article 50(2)(h) was yet to be fully enforceable as the State had to be accorded time to put the mechanism in place. This approach denied the majority of Kenyans an opportunity of enjoying legal representation sponsored by the state as the law required and thus there was a desperate need to have a structured approach in ensuring realization of this provision. This has now been effectively achieved following the enactment of The Legal Aid Act, 2016.
The Legal Aid Act is inherent with novel provisions and its implementation will yield significant benefits for Kenyans deprived of legal access. A cursory reading of Section 2 of the Act reveals an expansive scope of legal aid. It includes giving legal advice and representation, and assistance in (i) resolving disputes by alternative dispute resolution, (ii) drafting of relevant documents and effecting service incidental to any legal proceedings and (iii) reaching or giving effect to any out-of-court settlement. It also entails creating awareness through the provision of legal information and law-related education as well as recommending law reform and undertaking advocacy work on behalf of the community.
The interpretation of legal aid by the Act, though not exhaustive, addresses issues that are of pertinent concern to most ordinary Kenyans in pursuit of legal services.
The Act under section 5 creates National Legal Aid Service (NLAS), which has raft of functions. Section 6 provides that NLAS is expected to establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable; take necessary steps to promote public interest litigation with regard to consumer protection, environmental protection and any other matter of special concern to the marginalized groups; take appropriate measures to promote legal literacy and awareness in the public and, in particular; educate vulnerable sections of the society on their rights and duties under the Constitution and other laws, as well as administer and manage the Legal Aid Fund, among others.
Revolutionary and progressive
Various functions of NLAS, such as promotion of public interest litigation, are revolutionary and progressive. The incorporation of NLAS in the Act is the second attempt to institutionalise legal aid in Kenya – the first being the National Legal Aid (and Awareness) Scheme (NALEAP). However, NALEAP was deprived of sufficient funds by the state and this greatly watered down its efforts and impetus. The state and other relevant stakeholders should therefore make it their sacrosanct objective to ensure NLAS is given full financial support, as anything contrary to that would defeat the very purpose of having legal aid.
Funds are essential for the attainment of effective legal aid, and Part V of the Act is extremely salient; it provides for the creation of the Legal Aid Fund. Section 29 of the Act allows for a wide range of means that NLAS can rely on to replenish their accounts. Money allocated by Parliament for the purposes of NLAS, any grants, gifts, donations, loans or other endowments given to NLAS and such funds as may vest in or accrue to NLAS in the course of the exercise of its powers or the performance of its functions under the Act are the ways of raising funds that are recognised by the Act. Section 30 enumerates that the Fund shall be used to (a) defray the expenses incurred in the representation of persons granted legal aid in accordance with this Act; (b) pay the remuneration of legal aid providers for services provided in accordance with this Act; (c) meet the expenses incurred by legal aid providers in providing services under this Act and; (d) meet the expenses of the operations of the Service as approved by the Board.
The Act also encompasses an expanded scope of branches of the law that NLAS is expected to offer legal aid services than the one contemplated by Article 50(2)(h) of the Constitution. Whilst the Constitution limits the provision of legal aid to criminal cases, the Act under section 35(2), NLAS shall provide legal aid services in (a) civil matters, criminal matters, children matters, constitutional matters, matters of public interest, or any other type of case or type of law that the Service may approve. The significance of this approach is undeniable since Kenyans faced with legal challenges involving family, succession and custody of children can now enjoy legal aid services. Nevertheless, section 37 of the Act excludes legal aid services in civil matters involving tax, recovery of debts, in bankruptcy and insolvency proceedings, as well as in defamation proceedings.
However, legal aid services are not available to everyone. Section 36 of the Act limits the same to persons who are indigent, resident in Kenya, i.e. (a) a citizen of Kenya (b) a child; (c) a refugee under the Refugees Act; (d) a victim of human trafficking; or (e) an internally displaced person; or (f) a stateless person. The main premise for seeking legal aid services is to demonstrate that one is indigent and such status has to be determined by NLAS.
The Legal Aid Act, 2016, is refreshing and one that promotes access to justice in Kenya as envisioned under Articles 48 and 159 of the Constitution. It provides for an effective legal structure that ensures the financially constrained Kenyans are not deprived of essential legal services on the basis of lack of funds. Government should endeavour to respect, promote and uphold all the aspects of the Act.