By Ian-Johnson Ondari
Many Kenyans have resorted to the informal justice systems to circumvent bumps to access to justice in the formal legal system. In some areas, such as Northern Kenya, informal justice systems have almost replaced the formal justice system.
From a historical perspective, Kenyans were not very conversant with their basic rights. This affected their ability to use the judicial system for dispute resolution. Access to justice in Kenya emerged due to the new constitutional order that affirmed the right to legal representation. Before then, Kenyans had little knowledge of how the court system worked, and those who understood—the lawyers— often were themselves involved in corruption or delays.
It can be argued that public confidence in the judiciary is low, largely attributed to poor case management, case delays, and human rights ignorance by state agencies. In general, access to justice in Kenya remains limited. A study by the Governance Justice Law and Order Reform Sector (GJLOS) in 2006 indicated that only 26 percent of persons who needed legal services actually benefit from them.
Similarly, a 2015 survey commissioned by International Commission of Jurists (ICJ Kenya) indicates that the majority (61 percent) of surveyed respondents had no access to legal services. The overall objective of the survey was to establish Perceptions of Court Users towards Kenyan Judiciary. Majority (68 percent) of the respondents who found the costs not affordable were from rural areas, compared to those from urban areas (56 percent). Perhaps because lawyers usually concentrate in urban centres, their pro bono services are largely inaccessible for the rural population across the region.
Characterised by court fees and procedures that historically drag on for long periods thereby attracting more costs to litigants, legal services have for long been expensive for the larger population. Unaffordable cost of litigation is made worse by the fact that more than six in ten of the respondents had no access to legal services and aid.
62 percent of the surveyed respondents considered the cost for accessing justice unaffordable. The ever-present reason cited by the majority (74 percent) was travelling costs. Noteworthy, is that advocate and case filling costs were mentioned respectively by the respondents at 36 percent and 32 percent.
Despite these issues to access to justice described above, the authors of the report also point to a number of improvements in access to justice that have taken place over the last years. Examples are civic education initiatives, paralegal training, child rescue initiatives and accountability measures that have been put in place as a result of civil society partnership with actors in the administration of justice.
Legal aid models
Kenya uses a variety of systems to ensure that the poor and vulnerable are provided with legal aid. Though the state is increasingly becoming involved in the provision of legal aid, it is fair to say that legal aid relies extensively on private initiatives, such as the services offered by the legal profession, NGOs and paralegals.
To put this into context, a fraction (13 percent) of the respondents in the survey mentioned who say they got legal services indicated legal aid provided by other NGOs/ institutions, while the majority contracted their own (60 percent) representation. Conversely, the State provided representation to 27 percent of the respondents.
In terms of funding, Kenya places itself closest to the charitable model, as most legal aid schemes do not require self-payment by litigants and an assurance system is not in place. Kenya (to very different extents) uses the following models: pro bono legal aid services offered by private lawyers; referrals to private lawyers; justice centres, which use lawyers, jurists and/or paralegals to provide a range of legal aid services; paralegal advice offices and independent legal clinics.
More than four in ten of the respondents mentioned the Kenya National Commission on Human Rights as the organization which promotes/ enhances access to justice in Kenya. FIDA Kenya was mentioned by 37 percent of respondents.
So far the State has assumed financial responsibility only in capital punishment cases, using the pauper brief system (a system that in reality only covers murder trials and treason cases in the High Court). This system relies on private lawyers appointed and paid by the judiciary on a case-by-case basis, but has been deemed inefficient in part due to the poor fees offered to lawyers. This results in mostly young and inexperienced lawyers taking these cases and sometimes in a lack of commitment on the part of lawyers to engage actively in the defence of the accused.
Barriers to access
The commonest barriers to access to justice include resource constraints – insufficient sustainable resourcing for these organizations (donor based); lack of adherence to the code of conduct (developed MOUs) by recruited staff participating organizations; low perceived value of impact of paralegals in the community i.e. admin authorities (what is their role?); barriers to entry in the paralegal / legal profession; cross-learning, knowledge transfer, lack of linkages between the programmes in the country/ the need to establish a knowledge network to share experiences and enhance beneficial communication; language barriers, including illiteracy, as well as structure – Kenya’s judicial system suffers from fundamental structural, process, and capacity issues that hamper access to justice and undermine confidence in the Judiciary. Others are interference with evidence, lack of or improper documentation, abandoned cases, witnesses’ failure to make an appearance, lack of information/misinformation, slow court process and so on.
Role of technology
In 2011, Kenya had only 53 judges and 330 magistrates for a population of 41.4 million. There was a backlog of almost 1 million cases. The 2012 Judiciary Transformation Framework identified four pillars of reform: “people-cantered” delivery of justice; improving organisational culture and professionalism; ensuring adequate infrastructure and resources; and making better use of information technology.
Technology, which includes but is not limited to mobile phone technology, is already granting more access to public legal information. The growth drivers identified include awareness-raising and legal education initiatives using ICT – television and radio talk shows to build links between the formal and informal justice systems; capacity building initiatives using ICTs – the launching of a judicial website and training staff on how to include all citizens in justice initiatives; providing legal information using ICTs – using SMS-based initiatives to inform citizens of legal rights; and digitization of court decisions.
The reforms should also consider people living in remote areas who are often unable to access state justice institutions. Furthermore, non-recognition of legal identity is a key obstacle to access to justice as it is often needed when claiming entitlements. In addition, identification of non-state dispute resolution mechanisms can help resolve disputes quicker and reduce the pressure on state resources.
Dimensions of technology in access to justice
In what ways do we expect to apply tech in the justice system within the next three years?
From the outset, basic information about legal rights or how justice institutions work will be publicly available using SMS-based judicial information systems to notify citizens and lawyers of court dates; etc.
Furthermore, using ICT to link up remote areas involves using mobile phones to collect and transmit evidence to courts, providing low-cost mobile tools linking up informal and formal justice institutions and using SMS-technology and GPS to manage land boundary disputes. These are some facets of ‘open law’ that will complement efforts in related sectors like digitisation of the Land Register and increased penetration of mobile internet connectivity.
Nevertheless there is a risk that as tech is used more in wider delivery of justice, there will be an increased justice gap for people who don’t have that access or tech literacy.
On the other hand people and processes driving the justice system are probably more important. The biggest challenge remains institutional culture and structural impediments, aside from a strong sense of entitlement amongst members. Reforms led by tech will have to overcome internal resistance and weak accountability mechanisms.