African Centre of Excellence for Access to Justice KENYA

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1 African Centre of Excellence for Access to Justice KENYA Case Study: Kituo is a legal advice centre in Kenya running a comprehensive paralegal programme. All of the programmes are aimed at empowerment of the poor and marginalised to enable them to access justice through formal and informal platforms. Kituo s programmes fall under three thematic areas: Legal Aid and Education Programme (LEAP), Advocacy, Governance and Community Partnerships Programme (AGCP) and the Forced Migration Programme (FMP). Kituo will strengthen its work around research, communication and documentation and strategic leadership and governance. All the programs aim at empowering poor and marginalized people to effectively access justice and enjoy human and people s rights. Unlike the situation in South Africa, where there is a coordinating body for all paralegal services, Kenya has a loose arrangement which allows each organization to exist on its own. Kituo s ethos is based on: respect for and promotion of human rights; commitment to justice and equity while upholding the rule of law; solidarity with the poor and marginalized; commitment to volunteerism, social transformation aimed at empowering the disadvantaged, creativity and innovation supported by information technology and integrity, transparency, accountability and professionalism. There are several justice centres currently being operated by Kituo, including the Kamiti Prison Justice Centre and the Kamkunji Justice Centre. Kituo offers the following services: Legal advice clinics which provide free legal assistance to the public from the head office

2 Justice centres which are community based organizations giving legal advice. These centres aim to contextualise legal empowerment and build capacity for community driven management of legal aid provision Mhaki Platform (M-Haki Haki Mkononi) which is a low-cost SMS-based interactive platform between clients and advocates/paralegals that allows for the provision of legal advice within a period of 48 hours. As a pilot programme of the Dutch Embassy in Kenya, it is an innovative technology developed by Ushahidi Forum in collaboration with Kituo. Its intended impact is to reduce the costs related to access of justice in Kenya through the use of mobile phones. There is a dedicated mobile number ( ) that receives legal questions from the public to be answered at a small fee by Kituo lawyers and volunteer advocates. The platform is also used as an advocacy tool to build their capacity on legal issues and create awareness. There is need to build more capacity to attend to queries given the high volume of queries received via this platform. Partnerships with other the governments to promote alternative justice mechanisms, an initiative led by the Judicial Training Institute alongside Kituo and doctoral candidates working in the field. This justice centre is unique in that it trains prison inmates in the Kamiti Maximum Prison on the outskirts of Nairobi as paralegals to enable them to assist other prisoners with uncomplicated legal matters. With support from Kituo, this centre was established in 2012 with an initial training of 28 inmates and 5 prison staff. As the main prison for capital offenders, most inmates are serving life imprisonment and facing the death penalty. There are a limited number of lawyers relative to the Kenyan population and most remain inaccessible due to high costs associated with these services and lack of a national legal aid scheme. Through its work, this centre has helped rectify cases of unwarranted imprisonment. This justice centre receives legal support from Kituo for the more complicated legal matters. There have been several successes from this justice centre, the most notable being that the first criminal application to the supreme court originated in this office and is currently awaiting judgment to be handed down. The justice centre faces resource constraints (office space, administrative support, and out-dated equipment). Prison paralegals provide legal education for self-representation of the inmates, monitor human rights, follow up cases at police stations and courts, inform and assist family members on case progress and procedures like bail process, inmates medical issues, or simply helping to re-establish contact with a loved one. Some prisoners have also been trained as paralegals to help fellow inmates. Challenges The main challenge faced by Kituo is that its work is fully donor based which poses challenges in terms of sustainable resourcing. There is also the challenge of rogue paralegals that do not adhere to the code of conduct developed by Kituo for their paralegals. This code of conduct serves as a memorandum of understanding between Kituo and all its paralegals. Perhaps a more stringent vetting system is necessary upon recruitment of paralegals.

3 There is also a noted lack of appreciation of the importance of the work of paralegals, especially by chiefs and other administrative authorities. There is therefore a need to be clear about the specific role of paralegals. The overregulation of paralegalism through the insistence on minimum qualifications is considered to be detrimental to the movement as most paralegals in Kenya have limited education. There is also a noted lack of communication between programmes across the continent. It is therefore imperative that there is greater communication between programmes that organizations can benefit from learning exchanges to strengthen their own programmes. There is also a challenge of overcoming language barriers when assisting refugees. It is thus suggested that certain activists be identified and trained on the Kituo curriculum in Swahili or Somali to overcome this problem. Largely the paralegals work for no remuneration and so support and funding is desperately needed. Other problems paralegals in Kenya face include; Negative cultural practices (witch craft) Police not cooperative Corruption by provincial administrators and police Interference with evidence Lack of documentation Lack of legal fees for an advocate Complainants abandoned case Witnesses failure to make an appearance. Illiteracy Abuse of office Lack of access to information Slow court process Paralegals in Kenya - Background: More than 48 per cent of Kenyans live on less than Sh95 a day, and therefore cannot access legal services nor effectively manage their court cases due to high legal and court costs and legal illiteracy. Kenya adopted its new Constitution in The Constitution of Kenya provides for right to access justice under article 48 and right to free legal services where one faces a criminal justice process in article 48 and 50 respectively. Yet there is a general lack of resources and funding in the judicial sector, and a lack of confidence in the legal system. Government and police sectors are frequently reported as corrupt. The Constitution further enshrines the need for legal aid by requiring that an accused should be assigned an advocate by the state and at state expense, if substantial injustices would otherwise result, and to be informed of this right promptly. The Bill establishes a legal and institutional framework for delivery of legal aid services in Kenya and further proposes the decentralization of legal services to the counties and sub counties in conformity with Article 6(3) of the Constitution on access to services. Solicitor General Njee Muturi said the draft Legal Aid Bill 2013 developed by the National Legal Awareness Programme could also see awareness campaigns intensified. This would reduce the number of cases that end up in courts due to ignorance of the

4 law and inform suspects of their rights. A Baseline Survey on Status of Legal Aid in Kenya, 2011, noted a huge gap in legal aid services justifying the establishment of a structured, accessible and independent legal aid scheme for the needy, poor, marginalized and the vulnerable population. Prior to the Legal Aid Act, advocates were only provided at state expense for murder trials. Even after the 2010 Constitution, judges have refused to enforce the provision about advocates at state expense beyond murder cases. They have said rather unconvincingly that we needed to wait for a law. Maybe the judges were shying away from what they thought was too tough a task for the courts: working out when not having a lawyer would cause substantial injustice, and from the problem that legal aid is inevitably expensive. To institutionalise the provision of legal aid in Kenya, the government of Kenya developed a National Legal Aid (and awareness) Programme, NALEAP. NALEAP is made up of the national steering committee, the secretariat, and pilot project steering committees. The national steering committee is made up of representatives from the following institutions: Ministry of Justice, Law Society of Kenya (LSK), Federation of women Lawyers (FIDA) Kenya, Police, Prisons, Probation and After Care Services Children s departments, International Commission of Jurists (ICJ) Kenya, Kenya National Commission on Human Rights (KN CHR), Paralegal Workers Association, Judiciary, Public Universities, State Law Office and three representatives from the civil society. To get legal aid a person must be resident in Kenya, and be either a child, citizen, refugee, or trafficked or stateless person. A non-citizen adult accused of a crime, and who is not a refugee or stateless, could not apply. This is an arguable contravention of the new broad Kenyan Constitution. The Legal Aid Act defines accredited paralegal as meaning a person accredited by the service to provide paralegal services under the supervision of an advocate or an accredited legal aid provider; and includes quite a broad reading of legal aid: legal aid includes (a) legal advice; (b) legal representation; (c) assistance in (i) resolving disputes by alternative dispute resolution; (ii) drafting of relevant documents and effecting service incidental to any legal proceedings; and (iii) reaching or giving effect to any out-of-court settlement; (d) creating awareness through the provision of legal information and law-related education; and (e) recommending law reform and undertaking advocacy work on behalf of the community; 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. According to the African Centre of Excellence for Legal Empowerment in Africa Feasibility Study: The Bill also states that accredited paralegals, whether employed by the National Legal Aid Service or an accredited legal aid provider, may provide legal advice and assistance, but only for free. A paralegal under the Kenyan draft law is therefore an accredited person who is not a qualified lawyer,

5 but who has completed compulsory training and provides free legal aid and assistance, under the supervision of a lawyer. The Bill also provides that exceptionally, in jurisdictions where there are no legal aid providers, an intermediary may provide legal advice and assistance in civil and criminal matters, but only for free. However, since paralegals are legally defined as legal aid providers, they cannot fulfil the role of intermediary. This is one of the several inconsistencies in the Kenyan Legal Aid Bill. Paralegals in Kenya Additional information Applicable Constitutional obligations: Article 3(1), Article 22, Article 27(3), Article 48, Article 49(1)(c), Article 50(1), Article 50(7), Article 51, Articles Applicable Legislation: LEGAL AID ACT NO. 6 OF 2016, Legal Education Act, Training required: The Kenya School of Law offer a Diploma in Law (Paralegal) Studies programme. (Course duration - minimum period of 2 years). Organizations in Kenya conducting paralegal training include but are not limited to ICJ, LRF, Kituo Cha Sheria, CLEAN, 4C s, FIDA, RECAP-CLARION among others. Private universities and colleges, and recently the Kenya School of Law, have also developed paralegal training curriculums, but for those who will work in government institutions, especially courts, and law firms. Organizations: International Federation of Women Lawyers (FIDA), Public Law Institute (PLI), the Law Society of Kenya, International Commission of Jurists-Kenya section (ICJ-K), Children Legal Action Network, Christian Legal Education And Research, the Independent Medico-Legal Unit, Legal Resources Foundation, Coalition on Violence Against Women, Center for Human Rights and Awareness, The Cradle Foundation, Catholic Justice and Peace Commission and Muslims for Human Rights, Katiba Institute, National Legal Aid (and Awareness) Programme (NALEAP), Pamoja Trust, Kituo cha Sheria, Korogocho Owners Association (KOWA), Paralegal Advice Office. Resources: In Kenya, several publications have been published on the subject of paralegal practice and training. These include a Paralegal Handbook 1: Handbook on Paralegal Training and Paralegal Work, Paralegal Handbook 2: The Paralegal Worker and Community Development both published in 1997 as well as A Curriculum for Community Paralegal Workers, and Handbook for Paralegals published in The question of training of paralegals in Kenya is covered extensively especially in the PASUNE curriculum and handbook.