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The Shape and Future of Legal Aid in Kenya: Prospects and Challenges

The Shape and Future of Legal Aid in Kenya: Prospects and Challenges

- By Muriuki Muriungi, Lecturer, UoN, Head of Legal Consulting, KMK Africa Law Advocates

Legal aid is central to realization of human rights including citizens’ rights enshrined under the Constitution 2010.

This is especially the case in a country with high levels of poverty and a relatively low ratio of lawyers to citizens. According to the Kenya census 2019, up to 39 percent of youths remain unemployed and half of Kenyans lack basic essential services such as clean water, medicine and food. This means that affording lawyers, who are usually deemed expensive, even among the less vulnerable is considered a luxury by this not insignificant demographic. Yet, this group of Kenyans grapple with many legal issues requiring attention. For instance, a significant part of these low-income people find themselves on the wrong side of the law and being arrested and prosecuted for various criminal offences, thereby running the risk of being slapped with especially punitive sanctions. What is more, nearly all Kenyans need a lawyer to handle succession issues upon death of their loved ones, as is the case when seeking to transact including buying or selling land, as well as to defend employment claims when unprocedurally fired from work.

All these concerns put paid to the claim that legal services are increasingly being viewed as being akin to an essential and basic service. This is especially because a lack of access to these services can potentially lead to an emasculation of one’s rights and dehumanize an individual. It is precisely for this reason that Kenyans enacted unto themselves laws to ensure that those among them unable to afford a lawyer were afforded the same by the State. The Legal Aid Act 2016, which was enacted following intense lobbying, provides an avenue for provision of legal aid to those unable to afford. In particular, section 36 of the Act specifically provides that only the indigent and residents of Kenya are eligible to the legal aid scheme. This provision is useful as it avoids instances of free riders that is a constant feature of nearly all public goods, and ensures that the limited public resources are employed to the greatest effect.  The National Legal Aid Service (NLAS) established under the Act is the body charged with determining whether one is indigent as to be eligible for legal aid. Importantly, the Act also offers a rather expansive meaning of legal aid ‘as legal advice, representation, knowledge, legal awareness through education and recommendation of law reform and advocacy work.’ This means that legal aid is not limited to its understanding in the traditional sense as one that includes simply offering legal advice or representing one in court but also includes creating awareness, advocacy and making recommendations for law reforms.

With the support of the United Nations Development Programme (UNDP)-Amkeni Wakenya Programme, Egerton University School of Law is undertaking a legal aid program within Nakuru County. The programme which runs through 2020 into 2021, is meant to cater for the indigent persons residing within Nakuru County and also accords with the meaning given to legal aid under the Legal Aid Act 2016. In this regard, we are giving special emphasis to awareness creation, advocacy and recommending legal reforms, over and above offering legal advice and handling representations. In order to build capacity among the young people and increase the pool of persons involved in provision of legal aid for more impact, we have on boarded law students from Egerton University law school who are paired with advocates and other paralegals. This mentorship programme is meant to not only ensure more impact but also build a spirit of community service among the young lawyers in training. It need be mentioned however that while the legal aid programme is modelled along the one envisaged under the Legal Aid Act 2016, it is not a legal aid scheme that is envisioned under the Act as it is not government-funded. This notwithstanding, our work in the few months that the programme has been rolling out has laid bare some of the challenges that need redress.

To begin, there is significant need for legal aid among the communities we live in. Notably, while the Legal Aid Act was enacted in 2016, it is yet to be fully operationalized. There is need to ensure that the legal aid scheme and the attendant institutions established under the Act are well funded by the Exchequer to ensure that the indigent persons in need of legal aid are able to secure it. Further, various actors working within this space of legal aid including civil society organisations, governments, development partners, and lawyers must work collaboratively to ensure that the people being served do not view legal aid as ‘low quality’ legal services. There is usually a tendency for persons to consider freebies as something that is not quality enough. Such a view is not entirely without foundation since even under the existent legal aid scheme where persons accused of capital offences are offered lawyers, not much attention is given by many lawyers to such matters owing to the relative low pay compared to other lawyers or matters in private practice. Dealing with this perception will be crucial to greater uptake, as will increased funding, more collaborations and creation of greater awareness.

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