A lawyer’s experience and reflections on legal aid

A lawyer’s experience and reflections on legal aid

- By Muinde Njoroge, Advocate of the High Court of Kenya

With a population of 50 Million Kenyans, the need for provision of legal services by the available 17, 000 Advocates is overwhelming. Using these figures as a base, the ratio between Mwananchi and wakili is roughly 1: 2042. Such a ratio presents a high demand for legal services among the Kenyan population.

Yet speaking in objective terms, it would not be possible to factually say that all the 50 Million Kenyans are in need of legal services from lawyers. At the same time, it would be unreasonable to assume that the 17, 000 lawyers, listed as the population of Advocates in Kenya, are all actively ready and looking forward to offering legal services. This proviso notwithstanding, it is safe to state that there is a huge disconnect between demand for legal services and the supply. Another factor to consider is that a vast majority of Kenyans comprise of the poor nonworking, underpaid, and struggling class. For a country with a minimum wage of Kes 11, 000/- and in which many people earn even lesser than this amount, and being people who are struggling to pay rent, buy food, and raise kids, access to justice as enshrined in Article 48 of the Constitution remains a luxury if not an unattainable service.

Looking at an existing disconnect.

The upshot of the foregoing is that people need legal services but cannot afford. Demand for pro bono legal services is therefore very high, yet the supply is low. And closely related to this conundrum is a class of people who need legal services and can struggle to afford but don’t know which lawyer to approach.

Yet in the equation is a good majority of Kenyans who need legal services but do not know they need them. This group is akin to the sick person who doesn’t know they are sick and so would not see the need for a doctor. The group is composed of people who have only a very limited idea of what their rights are. I have interacted with persons who cannot tell if and when or whether their rights have been denied, violated, infringed or threatened and what redress is available before them. This is where another form of legal aid comes in.

At the heart of these challenges lie the insufficiencies of legal awareness among the members of the public. I am a firm believer that general basic legal awareness is key to a legally empowered society. I have participated in the annual legal awareness done by the LSK all over the country, a project that I usually find to be a great initiative. But scrutinized against the backdrop of the demand for legal services, the same only serves as a drop in the ocean. Granted still, there are lawyers who are not aware of what happens during the LSK Legal awareness project. This scenario can be safely said of those other legal aid opportunities offered by other organizations that the public could benefit from. This calls for more to be done in taking law to the people.

Why the public is not coming on board

Poverty is a great challenge among Kenyans. Even when they hear of pro-bono, and programs  where the Advocate has waived legal fees, court fees and other administrative expenses stand as a barrier beyond the reach of the ordinary Kenyan. These charges may not be high, but for a person with other pressing priorities and commitments it is a big obstacle. The upshot is that by the time claims are brought before court, they are time barred. I have a client who I once gave a legal opinion for free and indicated that they needed to pay about Kes 70, 000/- as court filing fees in a suit they were suing for damages in which a family member was seeking damages. I had promised the client not to worry about my fees but to prepare the court filing fees. I had also intended to represent the client should he have filed the matter in court. After picking the opinion, the client went away only to resurface after two years. By this time, the limitation period in their suit had lapsed and we could not proceed in court even after seeking leave to do so.

External costs therefore continue to stand as a turn off to indigent clients. I am one of the happiest persons to note that the government recently scrapped of the filing fees for civil claims where a person is claiming Kes 1, 000, 000/- and below.

There is inherent fear among the public regarding lawyers. One of my law school lecturers of professional ethics once remarked that in the eyes of a wary ordinary person, lawyers are ranked in the same category with politicians, police and auctioneers. Although there is no perception index to measure this categorization, I have come to terms with family members and friends who seem to entertain all manner of ideas on lawyers. Some of these ideas seem to portray guile, unscrupulous persons and untrustworthy fellows. The reality is that these ideas dilute the trust between a lawyer and the would be clients. This trust I believe does not change when one is doing pro-bono. One obvious fact is that the public or a vast percentage of it is misguided on what exactly a lawyer does. Conflict of knowing what a lawyer does inevitably impairs one’s expectation on what assistance a lawyer can offer.

While there are legitimate concerns, most of these stories are one-sided, distorted and emotive and overall tend to paint a tiresome unwelcome picture. The fear that lawyers cannot be trusted and will herefore demand money from you down the line has also been a real experience. It therefore calls for increased legal education for the public to understand the role of lawyers.

The benefits of pro-bobo remain are worth the exercise

The benefit of getting a lawyer to for legal representation in court comes as a heaven sent gift to many people who have never set foot in court. There will be needless convictions if poor clients cannot get the requisite representation in court. Watching the Case Files TV series has exposed to me the reality that there is high possibility of wrongful convictions for cases where many accused persons were unadvised or unrepresented.

Legal aid has made it possible for advocates to offer advice on specific, sometimes usually complex, legal matters that clients would not afford to pay for were advocates to charge for them.

An informed public is an economically empowered public. With basic skills on how agreements are entered into and what rights one has, there is an occasion of reduction of needless disputes in sales or other financial agreements among clients. The habit of downloading boiler-plate agreements from internet without regard to client’s rights will end as legal aid increases. With knowledge that land transactions should be in writing, there will be less occasion for fraud. Confidence on trade among low income persons will also increase.

With increased general legal awareness on the public, people will be able to better understand their rights, obligations and play their duties better as knowledgeable citizens. Pro-bono services will improve the public perception of the legal profession and the advocates. The public will have increased regard for legal practitioners. They will appreciate the special place the legal profession has in our society. The public will also know what to expect from lawyers and be better informed when, whom and how to approach legal service providers.

A call on the Advocates to come on board

Lawyers face several challenges in offering legal aid. There are several reasons attributable to this.

Most advocates, predominantly young, work in very demanding environments. This would mean most of them are in fulltime employment where the opportunity to render pro-bono would be difficult. Those Advocates working in the corporate sector- may not get the time unless during their leave days. Many may feel unqualified to help clients needing litigation services.

The Advocates working in law firms may not get the time from their busy schedule due to demanding bosses and strict work schedules. The challenge may also face senior advocates who may be too busy to get the time off and engage in non-billable hours. With this real attendant challenge, law firms can come up with a way of allocating time for which free legal services can be offered by their staff. This time will allow their associates to work on pro-bono files as though they were billable files.

Another barrier is lack of awareness on the part of lawyers. Pro-bono is not a concept that is taught in detail in our schools, at least in the curriculum that I went through to become an advocate. It would be irregular to expect a lawyer to assist a client on pro-bono basis when the lawyer has not been fully exposed to what their role is in this noble exercise. Players in the legal aid sector beginning with law schools, law firms, legal aid providers should come up with strategies to instill in lawyers as a foundation the primacy of pro-bono.

Economic conditions could also be a challenge for advocates to offer free legal services. The prevailing economic times are pushing several advocates and law firms to cut costs and seek to increase business efficiency.  Some lawyers are struggling to meet operating expenses such as payment of rent and retaining staff. In such an environment, engaging in legal aid provision might be the last thing to be considered by an Advocate. While this challenge is influence by economic externalities, there is not much that advocates can do. But for challenges within their internal grasp such as proper time management and fund optimization, I am sure that pro-bono could be given a progressive consideration by Advocates. The Advocates can also choose non-intensive briefs where they will still be in a position to advance public good. There is always an opportunity to be of assistance.

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