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Civil Society Organizations had been offering legal aid in Kenya even before a legal framework was put in place. The legislation therefore did not initiate legal aid but came in to provide a framework for what was already taking place.
In 2007, the Government of Kenya established the National Legal Aid and Awareness Programme, NALEAP with the main aim of creating awareness about legal aid, providing legal advice and representation to the poor, marginalised and vulnerable in the Kenyan society. This programme was the precursor to the Legal Aid Act, and lay a foundation for the establishment of a structured and sustainable national legal aid scheme in Kenya. This Service became the predecessor to the National Legal Aid Service established under the 2016 Act.
The preamble of the Constitution of Kenya, 2010 underpins the essential values of human rights, equality, freedom, democracy, social justice and the rule of law. The Constitution provides that every person is equal before the law with the right to equal protection and equal benefit of the law. The Constitution further provides for the right to access to information, access to justice and rights of arrested persons. Perhaps one of the most significant provisions as regards legal aid is Article 50 (2)(h) which provides that every accused person has the right to have an advocate assigned to them by the State and at the States’ expense if substantial injustice would otherwise result, and to be informed of this right.
The National Legal Aid and Awareness Policy 2015 provided the policy framework, setting the tone for the Legal Aid Act, 2016. The enactment of this Act followed a long campaign by the civil society and other players in the justice sector beginning long before the promulgation of the 2010 Constitution.
The Act creates a Legal Aid Fund that pays for remuneration of legal aid providers and related expenses for indigent persons. The Act covers legal aid services for criminal as well as civil cases. Persons eligible for legal aid under the Act may however be unable to access services in case of inadequate resources, unconscionable conduct or any other reasonable ground. The Act excludes legal aid services for artificial persons, matters of tax, debt recovery, bankruptcy and defamation. Perhaps there is further need to create clear guidelines to determine who is “indigent.” Moreover, since the Constitution recognizes the right of every accused person, what happens to persons who can only partly afford or access legal services?
The National Action Plan on Legal Aid for 2017-2022, launched on 18th December 2017 outlines a broad policy, legal and institutional framework to ensure sustainable and quality legal aid, and operationalizes the National Legal Aid and Awareness Policy 2015 and the Legal Aid Act 2016. It aims to bring all the legal aid providers together for easy coordination and quality assurance and puts primary responsibility for provision of legal aid on the government.
The Action Plan underpins awareness creation and the facilitation of legal rights education at community level through community-based initiatives, including law students. If implemented, Kenya will have a knowledgeable citizenry, well able to seek justice and legal remedies.
While the above legal and institutional framework is in place, litigants continue to face a number of challenges in seeking legal aid. Case in point is the 2019 Kenyan Court of Appeal decision in Jackson Kalenga v Republic  eKLR. On the question whether the State was obliged to have an advocate assigned to the appellant at its cost at the time when he was arraigned in Court, the Court observed that Article 50 (2) (g) and (h) of the Constitution would remain aspirational until the enactment of legislation to give effect to the provision (which legislation was passed subsequent). The Court therefore found that the State had no obligation to grant the accused free legal representation at the time he was arraigned in court as at that time the right was only aspirational.
We can however be hopeful that persons arraigned in court after 10th May 2016 are able to enjoy the rights provided under Article 50 to its full effect.
 Section 29, Legal Aid Act, No 6 of 2016
 Section 36(1), Legal Aid Act, No 6 of 2016