By Newton Arori
“Equal justice under the law is not merely a façade…it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists…it is fundamental that justice should be the same, in substance and availability, without regard to economic status” – Lewis F Powell Jr, former United States Supreme Court Justice
The National Assembly has recently enacted the Legal Aid Act. The Act sets out its objective as “to facilitate access to justice and social justice; to establish the National Legal Aid Service; to provide for legal aid, and for the funding of legal aid and for connected purposes.”
The constitutional underpinning of the Act is to be found in article 50(2) of the Constitution of Kenya 2010, which provides that “…(g)every accused person has the right to a fair trial, which includes the right to choose and be represented by an advocate, and to be informed of this right promptly…(h) every accused person has the right to a fair trial, which includes the right to have an advocate assigned to the accused person by the state and at state expense, if substantial injustice would otherwise result, and be informed of this right promptly.”
Article 19(2) of the Constitution further provides that the purpose of recognising and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice and the realisation of the potential of all human beings.
Legal services are beyond the reach of many. In the spirit of remedying this situation, advocates in private practice as well as non-governmental organisations such as Kituo cha Sheria offer free legal services to needy litigants. Despite these efforts, the problem has not been fully solved – there is still need for provision of more free legal services. Against this background, the Legal Aid Act must be seen in positive light.
Key features
The Act establishes the National Legal Aid Service which shall be a body corporate. The service shall succeed the currently existing National Legal Aid and Awareness Programme.
Also established under the Act is the Legal Aid Fund; which shall be managed by the National Legal Aid Service. The fund shall consist of money allocated by parliament and money from other lawful sources such as donations.
Commendably, the Act has cast its net wide regarding the beneficiaries of legal aid. Under section 36 the Act, a person is eligible to receive legal aid and service if that person is indigent, resident of Kenya and is (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. Section 36(3) provides that a person shall not receive legal aid services unless the Service has determined that the individual’s financial resources are such that the person is eligible for the services.
Legal aid is not available in certain matters. Section 37 of the Act provides that The Service shall not provide legal aid services in respect of civil proceedings –(a) to a company, corporation trust, public institution, civil society, non-governmental organisation or other artificial person (b) in matters relating to tax (c) in non-justifiable matters (d) in matters relating to recovery of debt (e) in bankruptcy and insolvency proceedings and (f) in which a company, civil society or non-governmental organisation or other artificial person is a plaintiff in the proceedings.
The rationale for this exclusion may be the assumption that the above categories of entities can afford legal services.
Challenges
If not properly structured and regulated, government-funded legal aid can, ironically and interestingly, work against the very public interest it is meant to protect. It has been observed that legal aid can create an inappropriate dynamic of state-funded lawyers litigating against state interests or against those individuals or institutions with an interest in preserving status quo. This situation can result in unreliable financing or restrictive rules placed on the use of these funds’ [Gordon, Jr., Richard K. and Jonathan M. Lindsay. “Law and the Poor in Rural India: The Prospects for Legal Aid.” American University International Law Review 5, no. 3 (1990)]
One will note that the government is usually the chief violator of human rights. Many of the public interest litigation cases revolve around social and economic rights, the provision of which lies squarely on the shoulders of the State. Simply put, the government cannot be trusted to facilitate its own opposition.
The most apt illustration of this is perhaps the massive cut in legal aid funding that was witnessed during the administration of former US president Ronald Reagan. Kenneth Mentor, in “Rhetoric, Roadblocks and Rebuilding: The perils of providing Legal Services for the Poor” explains: ‘…these cuts, mandated by Republican-led congress that took control in 1995, were coupled with major restrictions on the Legal Services Corporation (LSC) activity. At the same time, the LSC continued to function under the limitation imposed by the republican-led congress. Funding during these time periods were so severe that it has been difficult to develop a system in which the legal need of even a minimal percentage of the poor are being addressed.
Inadequate funding leads to inadequate remuneration for public lawyers, which lowers their morale with resultant poor service delivery.
Second, as Gordon Jr, Richard K. and Jonathan M. Lindsay have noted, “government-funded legal aid creates an illusion of justice and an image that that the state does not truly wish to rectify inequality through more substantive means – encouraging recourse to the court system may result in the neglect of more meaningful political activity, which may create more substantive benefits for the poor.
We have a duty to ensure that the government does not hide behind the veil of legal aid, but takes the necessary steps to facilitate the realisation of equality among citizens. In any case, the ‘haves’ will always have access to better legal services, and therefore, a continuing advantage over the “have-nots” in the legal arena. Against this backdrop, government-funded legal aid should not be seen as an end in itself in the realisation of equal access to justice. In the case of the right to housing for example, the government must continue with steps geared toward ensuring enjoyment of the right by every citizen.
Related to the foregoing, it must not be lost on us that legal aid depends on the effectiveness of the legal system as a whole. An impartial Judiciary is indispensable if equal access to justice is to be realised. As one scholar has summed it up, ‘a judge without a lawyer is more valuable than a lawyer without a judge.’
The third and perhaps most fundamental step that needs to be taken to ensure realisation of equal access to justice is providing legal information and legal education to the public. This may take a variety of forms, such as radio programmes, distribution of leaflets or websites that inform the public of their rights. The importance of legal information cannot be overemphasised. For a person to approach a court to seek relief, he or she must have knowledge of his or her rights.
Sackville in “Some Thoughts on Access to Justice’ paper presented at the New Zealand Centre for Public Law First Annual Conference on the Primary Functions of Government” observes: “While this concept of access to justice focuses on the justice system, it is confined neither to the courts nor to services associated with courts. It extends to improved sources of information for consumers…’
While Parliament must be applauded for this important legislation, much still remains to be done if equal access to justice is to be realised by all.
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