National Action Plan

Transcription

1 REPUBLIC OF KENYA Office of The Attorney General and Department of Justice National Action Plan Legal Aid Kenya Towards Access to Justice for All

2 National Action Plan Legal Aid Kenya Towards Access to Justice for All

3 The development of this document was supported by International Development Law Organization (IDLO), via financial support from DANIDA and the Embassy of the Kingdom of the Netherlands in Kenya.

4 Table of Content List of Acronyms... iv Foreword... vi Acknowledgment... viii Executive Summary... ix CHAPTER ONE: INTRODUCTION...1 A. Background...1 B. Contextualizing Legal Aid in Kenya...3 C. Legal System, Structure and Legal Aid Situation in Kenya...6 D. Legal Aid Response...14 E. Challenges...16 F. SWOT Analysis...21 CHAPTER TWO: LEGAL AID ACTION PLAN ( )...23 A. Background Information...23 B. Rationale for developing a National Legal Aid Action Plan...24 C. Purpose of the Action Plan...25 D. Strategic Objectives...26 i) Strategic Objective ii) Strategic Objective iii) Strategic Objective iv) Strategic Objective v) Strategic Objective vi) Strategic Objective vii) Strategic Objective viii) Strategic Objective E. Coordination...37 CHAPTER THREE: MONITORING AND EVALUATION PLAN...39 A. Introduction...39 B. Monitoring...40 C. Evaluation...40 D. Funding...40 CHAPTER FOUR: ANNEXES...42 Annex 1: Strategic Action Implementation Matrix...42 References...57 iii

5 List of Acronyms ACHPR ADR AU CAJ CBOs CEDAW CIMES CIPK CLAN CLEAR COG COVAW CRC CREAW CUCs CSOs ERS FBOs FIDA-K GJLOS ICCPR KDHS KIHBS ICESCR KLRC KNBS African Charter on Human and Peoples Rights Alternative Dispute Resolution African Union Commission for Administration of Justice Community-Based Organizations Convention on the Elimination of All Forms of Discrimination Against Women County Integrated Monitoring and Evaluation System Council of Imams and Preachers of Kenya Children s Legal Action Network Christians Legal Action Network Council of Governors Coalition on Violence Against Women Convention on the Rights of the Child Centre for Rights Education and Awareness Court Users Committee Civil Society Organizations Economic Recovery Strategy Faith Based Organizations Federation of Women Lawyers Kenya Governance, Justice, Law and Order Sector International Covenant on Civil and Political Rights Kenya Demographic Health Surveys Kenya Integrated Household Budget Survey International Covenant on Economic, Social and Cultural Rights Kenya Law Reform Commission Kenya National Bureau of Statistics iv

6 KNCHR LSK M&E MDAs MER Kenya National Commission on Human Rights Law Society of Kenya Monitoring and Evaluation Ministries, Departments and Agencies Monitoring, Evaluation and Regulation MoJNCCA Ministry of Justice National Cohesion and Constitutional Affairs MUHURI NALEAP NAP NCAJ NGEC NGOs NLAAP NLAS Muslims for Human Rights National Legal Aid and Awareness Programme National Action Plan National Council of Administration of Justice National Gender and Equality Commission Non-governmental Organizations National Legal Aid and Awareness Policy National Legal Aid Service OAG & DOJ Office of the Attorney General and the Department of Justice ODPP SDGs TDR TJS UDHR UN UNDP WPA Office of the Director of Public Prosecution Sustainable Development Goals Traditional Dispute Resolution Traditional Justice System Universal Declaration of Human Rights United Nations United Nations Development Programme Witness Protection Agency v

7 Foreword The enactment in 2016 of the Legal Aid Act marked a significant milestone in the development of the justice system in Kenya. It signified the equality of all citizens through the provision of free legal services to the vulnerable and indigent of the society ensuring justice for all. The launch of this National Action Plan on Legal Aid, the first one in Kenya, is a great milestone in the journey towards creating an enabling environment for legal aid in Kenya. Eight months ago, I inaugurated the Board of the National Legal Aid Service as part of the process to operationalize the Legal Aid Act I challenged the Board to ensure that as nation, we have an efficient, effective and responsive system of legal aid. Today I am proud, that this Plan that covers the period is a demonstration of the National Legal Aid Service s commitment to provide such a system within the shortest time possible. Since independence in 1963, legal aid has been offered by both state and non-state actors, with non-state as the major provider, operating without any clear legal, institutional and coordination framework. However, with the enactment of the Legal Aid Act 2016 and a National Legal Aid and Awareness Policy, 2015, the Government of Kenya has adopted a collaborative and systemic approach that brings together both state and non-state actors in a coordinated manner in the delivery of legal aid. The National Action Plan sets out major initiatives that address legal aid concerns across the country and as you read it, one realises that a lot has been achieved while the reality of the enormity of the work ahead dawns on you. I hope this Plan provides the necessary impetus to operationalise the Legal Aid Act 2016 and a National Legal Aid and Awareness Policy, 2015 and ensures that efforts towards its implementation remains continued and focused. One of the greatest challenge that the justice sector has faced in the past, that has been an impediment to the allocation of adequate resources, is the lack of appreciation of the linkage between legal aid and development, but I am happy that this is now in the past. This Plan of Action will also go along way in positioning legal aid issues in the overall development agenda of the country by highlighting the cross-sectoral linkages. I am glad that the National Action Plan is a result of a comprehensive and consultative process with key stakeholders in the Justice sector, including development partners to whom we are very grateful. The National Action Plan will provide the broad strategic framework on legal vi

8 aid and ensure that there is synergy and coordination amongst the stakeholders. This will in turn ensure that legal aid is responsive, affordable, accessible and speedy. The Plan demonstrates a strong commitment by Government to ensure that the rights enshrined in the Bill of Rights of our Constitution particularly on access to justice, are not only safeguarded but are realised in a systematic manner. It will also foster transparency and accountability in the dispensation of Government s obligations and commitments under national, regional and international legal framework on access to justice. Kenya has a strong human rights record and meaningful implementation of this Plan will make it even stronger. We have the Plan, let s make it work! Githu Muigai, EGH, SC Attorney General, Republic of Kenya vii

9 Acknowledgments The process of developing this National Action Plan on Legal Aid in Kenya, , came about at the very nascent stages of the National Legal Aid Service (NLAS), the Board of the Service only having been inaugurated by the Hon. Attorney General in April The process benefitted immensely from the leadership and guidance of the Board and the valuable contributions of the Technical Working Group, comprising practitioners and experts in the Legal Aid field. A special thanks the Attorney General of the Republic of Kenya, Prof. Githu Muigai for entrusting the Board with delivery of a national legal aid scheme. I wish to recognise the valuable contribution and active participation by stakeholders in the justice sector, but for whom this Plan would not have been consultative and comprehensive. We are greatly indebted to International Development Law Organization (IDLO), Danish International Development Agency (DANIDA), through the Royal Danish Embassy, Nairobi, and the Embassy of the Kingdom of the Netherlands, Nairobi, Kenya for the technical and financial support for the entire process. We are also grateful to the Technical Working Group Members: Waikwa Wanyoike, Hon. Mary Otindo, Janet Munywoki and Clement Okech for their immense contribution and enriching the document. Special gratitude goes to Dr. Ruth Adhiambo Aura, the consultant, for dedicating her time, energy and expertise in the development of this Plan. Gratitude is also extended to the entire staff of NLAS who provided crucial support during the preparation of the Plan including ensuring that the Plan is aligned to the Legal Aid Act, 2016, the National Legal Aid and Awareness Policy, 2015 as well as other relevant government policies and sector priorities. Last but not the least, we remain grateful to Ms. Kimberly Brown of IDLO for her commitment and support to the entire process and to all those who contributed either directly or indirectly to the successful preparation of this Plan. Nazima Malik Chair, National Legal Aid Service Board. viii

10 Executive Summary The Government of Kenya, through the National Legal Aid and Awareness Programme (NALEAP), now constituted as the National Legal Aid Service, developed the National Legal Aid and Awareness Policy (NLAAP), an overarching policy, to address issues pertaining to legal aid and access to justice in the country. This policy views legal aid as a critical component of enhancing access to justice in the country and emphasizes the need to ensure the right to access justice as a constitutional right. The goal of the NLAAP is to enhance the facilitation of access to justice through a national, sustainable and quality legal aid and awareness framework in line with the Constitution, regional and international human rights standards. In order to achieve its constitutional and international obligation towards access to justice, the Government of Kenya also enacted the Legal Aid Act No. 6 of Specifically, the Act established the National Legal Aid Service (NLAS), a successor to NALEAP, to facilitate provision of legal aid countrywide. NLAS aims to attain this by focusing on implementation of a broad-based legal aid and related services that will impact on legal aid and access to justice in Kenya through development of a Legal Aid National Action Plan. This National Action Plan (NAP) ( ) is based on various policies and legislative blueprints, survey on legal aid status and proposals from extensive consultations with legal aid actors undertaken over the years. All these combined informed the development of strategic objectives and corresponding intervention programmes and activities. NAP serves as a road map for coordinated implementation of legal aid interventions by the government and legal aid actors across development sectors for maximum impact. The provision of legal aid is hinged on a collaborative and cooperative venture with all legal aid actors. To this end, it is expected that implementation of the Plan will contribute to increased commitment, partnerships and networking among the legal aid actors. It is hoped that the full implementation of this NAP will contribute to strengthening the rule of law, protection and promotion of human rights and expanding access to justice for all. The Plan will also be used as a resource mobilization tool by legal aid and access to justice stakeholders and a guide to investment to cost effective legal aid interventions. As an overarching policy, NLAAP set seven priority legal aid areas. These priority areas provided a conceptual guide to the development of this NAP, which further identified eight strategic objectives each with corresponding activities and expected outcomes. The NAP is informed by the following strategic objectives: to strengthen frameworks for policies, laws and administrative processes that will ensure sustainable and quality access to justice to all; to provide quality, effective and timely legal assistance, advice and representation for the poor, marginalized and vulnerable; to enhance access to justice through legal aid and ix

11 continuous legal awareness; to promote and institutionalise the paralegal approach in access to justice; to promote the use of alternative and traditional dispute resolution mechanisms; to establish an implementation, monitoring, regulatory and support framework; to allot fiscal, human and technical resources for legal aid and awareness services in Kenya; to undertake research to ensure evidence-based initiatives. The Plan is a further demonstration of the government s commitment to ensure access to justice for all persons in line with its constitutional, international and regional obligations. The Plan will be implemented through a five year period. It outlines specific priority areas, expected outcome and output (means of verifying delivery). Additionally it clearly sets out the timeframe for each activity, the lead institution responsible for the execution and other state and non-state actors that may be required to help make the delivery of each activity a success. The Plan will be used by the national and county governments to promote and facilitate implementation of legal aid programmes and activities to ensure access to justice for all. The Plan has been organized into chapters as follows: Chapter 1 provides introduction and presents a situation analysis of legal aid in Kenya, on-going and recent responses and the main challenges. The strategic issues lead activities, and their expected outcomes are presented in Chapter 2. Chapter 3 describes the monitoring and evaluation approach while chapter 4 has the Strategic Action Implementation Matrix highlighting activity, responsible entities for implementation and time-frames are presented for each strategic objective. x

12 1 CHAPTER ONE INTRODUCTION A. Background Historically, justice has for many been a myth, alongside the concepts of human rights, equality, freedom, truth and democracy. Yet today the concept of access to justice for all remains one of the most fundamental and widely articulated principles, not only in Kenya, but in most contemporary societies as well. Under the international human rights law, states are obligated to guarantee each individual s right to go to court or, in some circumstances, access alternative dispute resolution forum to seek a remedy if it is found that the individual s rights have been denied, violated, infringed or threatened. The same principle is enshrined in the Constitution of Kenya 2010 which obligates government to guarantee access to justice by ensuring the cost of justice does not impede access. It is thus also an enabling right that helps individuals enforce other rights. 1 Access to justice is an essential element of the rule of law and democracy which entails a fair trial and the right to an effective remedy. The United Nations defines the rule of law as a principle of governance in which all persons, institutions and entities, public and private, including the State itself, are accountable to laws that are publicly promulgated, equally enforced and independently adjudicated, and which are consistent with international human rights norms and standards. 2 Justice institutions enable the citizenry to protect their rights against infringement by other people or bodies in society, and allow parties to bring actions against the government in an effort to help limit executive power and ensure governments are held accountable. If people are unable to access these institutions in order to protect their rights, respect for the rule of law is diminished. People do not access these institutions for a myriad of reasons; for example, lack of finances, distance, lack of knowledge of legal rights among many others. It is within this context that legal aid is imperative. So what does legal aid herald? Legal aid refers to the means by which indigent persons receive legal assistance for free or at a reduced service fee. Black s Law Dictionary defines legal aid as the free or inexpensive services provided to those who cannot afford to pay full price. 3 Section 2 of the Legal Aid Act 2016 defines legal aid as legal advice; legal representation; assistance in resolving disputes by alternative dispute resolution; drafting of relevant documents and effecting 1 UDHR, ICCPR, CEDAW, ACHPR, Maputo Protocol. A more detailed discussion is presented in subsequent section. 2 Secretary General United Nations Report Bryan A Garner (ed) Black s Law Dictionary 9 th Edition Pg 912 1

13 service incidental to any legal proceedings; and reaching or giving effect to any out-of-court settlement. It also entails creating awareness through the provision of legal information and law-related education; and recommending law reform and undertaking advocacy work on behalf of the community. Legal aid therefore facilitates access to justice for those who cannot afford legal representation to enforce or claim their rights. Legal aid is a critical component of access to justice and rule of law. Barriers to justice reinforce poverty and exclusion. 4 Many of the issues commonly faced by people, such as family breakdown, credit and housing issues, discrimination, and exclusion from services, have a legal dimension that if not resolved can contribute to social exclusion. Maintaining a strong rule of law is a precondition to protecting disadvantaged communities and helping people leave poverty behind. Improving access to justice is therefore a key means of promoting social inclusion. 5 It is important to note that maintenance of the rule of law is fundamental to Kenya s socio-economic prosperity. It enables the citizenry to plan and live their lives as they choose while underpinning the tenets of socio-economic development. The rule of law, thus, frames the relationship between state and society, founded upon an accepted set of socio-political and economic norms. It is therefore important for the government to actualize its constitutional and statutory obligations in providing legal aid to expand and enhance access to justice for all. The benefits accruing from effective legal aid services extend beyond individual cases to include: general communal and societal benefits such as prevention and determination of disputes before they become real cases and threaten social harmony; elimination of unnecessary detention; speedy processing of cases; fair and impartial trials; and the reduction of prison populations in criminal matters while ensuring that justice is fair and accessible in civil and administrative matters. 6 This National Action Plan (NAP) aims at increasing the level of access to justice for all Kenyans particularly by expanding the legal aid provision, streamlining and improving alternative dispute resolution framework through effective coordination. It is hoped that the full implementation of this NAP will contribute to strengthening the rule of law, protection and promotion of human rights and expanding access to justice for all Kenyans. Kenya, with a population of over 45 million people, 7 is a multi-cultural, multi-ethnic secular, multi-religious, multi-linguistic and the second most populous country in East Africa; 25.6 percent of the population lives in urban areas. 8 Kenya s GDP is around billion USD 4 Australian Government (Attorney-General s Department), A Strategic Framework for Access to Justice in the Federal Civil Justice System: A Guide for Future Action (September 2009) Access to Justice Taskforce Attorney-General s Department. 5 As above. 6 Private International Law Unit of the Federal Office of Justice FOJ, Division for International Legal Assistance (FOJ), the Directorate of International Law (DFA) and Office of the Attorney General of Switzerland, International Judicial Assistance in Civil Matters: Guidelines (2003 last updated 2013), 3 rd ed. Available online at accessed on 28 January World Bank website < accessed 19 January Also see Kenya National Bureau of Statistics (KNBS) Economic Survey 2016 (2016) Kenya National Bureau of Statistics. 8 World Fact Book (CIA), Kenya, available online at < accessed on 12 January

14 (2015), with a GDP per capita of 3,400 USD (2016). 9 Over the last decade, Kenya has performed well in terms of economic growth, mainly driven by the services sector, both traditional and modern. However, as poverty remains prevalent in most parts of the country, the critical challenge remains raising the rate of economic growth to levels incorporating broad-based improvement in the standards of living and well-being of Kenyans in order to reduce poverty. 10 The distribution of wealth in Kenya is highly unequal (GINI index 47.7 with a global rank of 32). 11 Increased levels of poverty means that the living conditions of the vast majority of Kenyans continues to deteriorate rapidly. Currently, the country ranks 145 out of 188 countries on the UN Human Development Index. 12 There is a clear gender element in poverty in Kenya as the country is similarly ranked number 145 on UNDP s Gender Inequality Index. 13 Widespread poverty translates into an increase in the number of people unable to access justice hence the need for legal aid. B. Contextualizing Legal Aid in Kenya Kenya has been building a solid foundation of becoming globally competitive and prosperous in its economy since the year These efforts have been realized through implementation of the Economic Recovery Strategy (ERS) covering the period which focused on restoration of economic growth, rehabilitation and expansion of infrastructure, equity and poverty reduction, and improving governance. 14 The successful implementation of ERS eventually paved way for the adoption of Vision Vision 2030 primarily aims to transform Kenya into a globally competitive and prosperous nation with a high quality of life. The Vision 2030 has social, political and economic pillars. Under the political pillar, the Vision pinpoints specific strategies which must be employed to ensure enactment and implementation of a policy, legal and institutional framework vital for promoting and sustaining fair, affordable and equitable access to justice. These include: aligning the national policy and legal framework with the needs of a market-based economy and national human rights and gender equity commitments; increasing service availability and access (or reducing barriers) to justice; streamlining the functional organization (including professionalization) of legal and judicial institutions to enhance inter-agency cooperation; inculcating a culture of compliance with laws and decent human behaviour; and constitutional reforms. 16 One of Kenya s greatest achievements is the promulgation of the Constitution in This Constitution is laudable for the progressive human rights provisions among others. Under Article 48, the government has the responsibility of ensuring access to justice for all persons 9 As above. 10 Peter Ndungu, Infrastructure for Economic Growth and Shared Prosperity in Kenya: Addressing Infrastructure Constraints, Promoting Economic Growth, and Reducing Inequality (21 July 2016), Available online at (accessed 19 January 2017). 11 GINI Index Kenya (accessed 12 January 2017). 12 United Nations Development Programme (UNDP), Human Development Report 2015: Work for Human Development (2015) UNDP. 13 UNDP, Human Development Reports: Table 5: Gender Inequality Index available online at < accessed 12 January Government of Kenya, Economic Recovery Strategy for Wealth and Employment Creation , (June 2003), Ministry of Planning and National Development. 15 Government of Kenya, Kenya Vision 2030 (2007 Abridged/Popular Version) Government of the Republic of Kenya. 16 Government of Kenya, Economic Recovery Strategy for Wealth and Employment Creation , (June 2003), Ministry of Planning and National Development. Government of Kenya, Kenya Vision 2030 (2007 Abridged/ Popular Version) Government of the Republic of Kenya. 3

15 and, if any fee is required, it shall be reasonable and shall not impede access to justice. This provision is the backbone to legal aid in Kenya. Further, the Constitution guarantees to every accused person, the right to have an advocate assigned by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly. 17 Enshrining the right to legal aid and access to justice in the Constitution marks a radical shift in programme development and implementation around these issues. And the government takes greater responsibility in ensuring that the right is enjoyed by Kenyans, especially indigent persons. Government of Kenya, through the National Legal Aid and Awareness Programme (NALEAP), has developed the National Legal Aid and Awareness Policy (NLAAP), an overarching policy, to address issues pertaining to legal aid and access to justice in the country. This policy views legal aid as a critical component of enhancing access to justice in the country; emphasizes the need to ensure the right to legal aid as a constitutional right; recognizes disparities in provision of legal aid and provides relevant policy directions; ensures multisectoral approach to addressing poor provision of legal aid in the country; and ensures evidence-based planning and resource allocation. The goal of the NLAAP is to enhance the facilitation of access to justice through a national, sustainable and quality legal aid and awareness framework in line with the Constitution, regional and international human rights standards. NLAS aims to attain this through focusing on implementation of a broad base of legal aid and related services that will impact on legal aid and access to justice in Kenya. Indeed the main emphasis is placed on implementing interventions, and prioritizing investments relating to legal aid to indigent and vulnerable persons, as it is the major impact area for which progress was not attained in the previous strategic plan. This NAP recognizes that one of the major impediments to access to justice and legal services is the issue of poverty. A majority of Kenyans, due to an array of reasons, including socio-economic, legal and political factors, are unable to access justice. From exorbitant legal fees, to the exclusion of the poor from mainstream political processes undermines their ability to compete effectively in an adversarial justice system. The indigent remain unaware of their legal rights, lack knowledge of the court system, or simply experience unending frustrations while seeking to access justice. No doubt this undermines the constitutional commitment to equal justice, a central legitimacy of any democratic process. The NLAAP is grounded on particular principle guidelines, drawing inspiration from Article 10 of the Constitution, 18 meant to inform the Policy implementation process. These include: public participation; respect for human rights and dignity; respect for the rule of law; nondiscrimination and inclusion; restorative and preventive justice; responsiveness; equality and 17 Article 50(1)(h) of the Constitution. 18 This provision reads: 10. (1) The national values and principles of governance in this Article bind all State organs, State officers, public officers and all persons whenever any of them (a) applies or interprets this Constitution; (b) enacts, applies or interprets any law; or (c) makes or implements public policy decisions. (2) The national values and principles of governance include (a) patriotism, national unity, sharing and devolution of power, the rule of law, democracy and participation of the people; (b) human dignity, equity, social justice, inclusiveness, equality, human rights, non-discrimination and protection of the marginalized; (c) good governance, integrity, transparency and accountability; and (d) sustainable development. 4

16 equity; accountability; access to information; sustainability; innovation; and research-based interventions. In order to achieve the objectives outlined in the NLAAP, it further highlights general and specifics objectives set to be realised if NALEAP is to achieve the Policy vision and goal of ensuring access to justice for all. NLAAP s overall primary objective is to develop a National Legal Aid institution that provides a sustainable framework for quality access to justice to all in line with the government s general development agenda. With the enactment of the Constitution in 2010, the government s obligation to ensure access to justice for her citizen has become more evident than ever before. The Constitution of Kenya creates various avenues for enhancing access to justice in Kenya. 19 The Constitution has ensured equality to all its citizens. Article 27(1) of the Constitution of Kenya reads that Every person is equal before the law and has the right to equal protection and equal benefit of the law. However, while the Kenyan Constitution and other laws provide for equality of all persons before the law, several other factors still limit full access to justice. These include, but of course not limited to: poverty, limited access to lawyers and lack of knowledge about legal procedures. Legal aid through legal information and awareness, advice, assistance, mediation and representation ensures that free or subsidized services are provided to eligible, needy individuals. The government has made attempts to establish a legal aid framework dating back to decades. This process finally culminated into the establishment of the National Legal Aid and Awareness Programme (NALEAP) by the then Ministry of Justice National Cohesion and Constitutional Affairs (MOJNCCA) in 2007 as a national pilot programme. 20 It was aimed at advising government on matters of access to justice and drawing of lessons for the establishment of a national legal aid scheme. The National Legal Aid and Awareness Steering Committee had the mandate to oversee, coordinate, and monitor the programme for legal aid provision in Kenya. Even though the Steering Committee was established in 2007, the National Coordinator was only appointed by the Minister in Its official launch was done in 2009 with Six Pilot Schemes implemented for three years between 2009 and 2012 in collaboration with the civil society. 21 During this period, initiatives to develop a legal aid legislation and policy were undertaken through consultative processes between the government and civil society organizations. NALEAP undertook a number of projects, in collaboration with key stakeholders notably, the Judiciary, Law Society of Kenya (LSK), Federation of Women Lawyers (FIDA-K), Christians Legal Action Network (CLEAR), Children s Legal Action Network (CLAN), Kenya Community of Paralegal Association/CJP, Rift Valley Law Society Juvenile Project and Moi University Legal Aid Clinic, to provide legal advice and representation to indigent in various matters. Other stakeholders for pilots included, Legal Resources Foundation (LRF), Kituo Cha Sheria, 19 There are now several provisions specifically providing for access to justice, public participation, ADR and traditional dispute resolution mechanisms and the overhaul of the judicial system. 20 Established by His Excellency the President of Kenya vide Gazette Notice No of 30 th November 2007 to oversee, coordinate and monitor national secretariat and pilot projects. 21 NALEAP became the lead organization at government level spearheading the coordination and implementation of legal aid services in Kenya. 5

17 Muslims for Human Rights (MUHURI), Coalition on Violence Against Women (COVAW), Centre for Rights, Education and Awareness (CREAW), Department of Children Services, Department of Correctional Services and Charitable Homes. NALEAP facilitated six pilots in the provision of legal aid in family/succession and children (both in need of care and protection in conflict with the law), capital offences, Alternative Dispute Resolution (ADR) and paralegalism. In 2016 parliament enacted the Legal Aid Act to give effect or infuse life to Articles 19(2), 48, 50(2) (g) and (h) of the Constitution on access to justice. Similarly, Cabinet approved National Legal Aid and Awareness Policy (NLAAP) in May 2015 creating a legal and policy framework to facilitate provision of legal aid services. By dint of Sections 5 and 5(3) of the Legal Aid Act, the National Legal Aid Service (NLAS) is established as a body corporate and a successor to NALEAP. One of the key functions of NLAS is to establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable among others. An oversight Board is also established to spearhead legal aid services with supervisory role over the service staff. NLAS is now the official body responsible for provision and operation of legal aid services in Kenya. It is instructive to note that the Kenyan legal framework, specifically, the Persons Deprived of Liberty Act 2014 addresses needs of aliens who might require legal aid and assistance. C. Legal System, Structure and Legal Aid Situation in Kenya Legal information, legal literacy and legal services, had been to a large extent undertaken by civil society organizations in the past four decades. However, the Legal Aid Act provides a framework for collaboration between state and non-state actors in legal aid service provision. The legal system in Kenya is adversarial in nature. The system arrives at a decision by allowing both opposing sides to present their opinion before a neutral party (judge/magistrate) to determine the facts and apply the law in light of the presentations. One of the disadvantages of an adversarial system is the problem of accessibility to the indigent. Not all litigants can enjoy the same access to legal representation as the wealthy and influential litigants because law and judicial procedures are too technical for a person to understand. Besides, an indigent person cannot afford the services of a lawyer. These services come with high costs hence the economic and social conditions of indigent cannot afford. The system can and does intimidate indigent persons and therefore resulting in great injustice. In such a scenario the indigents can only be saved the rigours and cost of such adversarial system through legal aid. In Kenya, justice is administered by the courts at different levels. In the past constitutional order, there were three (3) levels of courts: Subordinate Courts, a High Court, and Court of Appeal as the highest court. The new constitution establishes a Supreme Court, as the highest instance in the country, but maintains the Court of Appeal and the High Court. The Subordinate Courts consist of Magistrate Courts, a Court Martial and Kadhis Courts. These Kadhis Courts which also existed under the old Constitution, but are strengthened with the new law apply Islamic law to disputes between Muslims in the areas of family law and inheritance. 6

18 Supreme Court of Kenya Court of Appeal High Court Employment and Labour Relations Court; Environment and Land Court; Commercial Division; Civil & Admiralty Division; Criminal Division; Family Division Magistrate Courts Chief Magistrate; Senior Principlal Magistrate; Principlal Magistrate; Senior Resident Magistrate; Resident Magistrate Kadhis Court; Court Martial Any other court or local Tribunal established by an Act of Parliament The judiciary has over the years operated a pauper brief scheme akin to a legal aid scheme for those charged with murder. In 2016 the Chief Justice gave practice direction on pauper brief scheme and pro bono services under judiciary Gazette Notice 370 of It is instructive to note that the Task Force Report of the Judicial Reforms 2010 recommended the incorporation of the pauper brief scheme into the National Legal Aid and Awareness Programme. Kenya as a country is guided by Rule of Law and democratic principles. These notions require adherence to the principles of supremacy, equality, accountability, and fairness in the application of the law. In line with this, and in the context of Legal Aid, the government has made it a priority to ensure that justice is accessible to all through the constitutional and legislative mandate. The Government has further made commitments under international and regional human rights instruments to provide state funded legal aid and education as conduits to enhancing access to justice. These include the Universal Declaration of Human Rights (UDHR); the International Covenant on Civil and Political Rights (ICCPR); Convention on the Elimination of All Forms of Violence Against Women (CEDAW); International Covenant on Economic, Social and Cultural Rights (ICESCR); the African Charter on Human and People s Rights (ACHPR); Protocol to the African Charter on Human and Peoples Rights on the Rights of Women in Africa (the Maputo Protocol); the Convention on the Rights of the Child (CRC); Convention on the Rights of Persons with Disability; among other UN and AU Declarations and Statements of Principles. The Constitution makes it clear that not only do general rules of international law form part of the laws of Kenya, but so does any treaty or convention ratified by Kenya See Article 2 (5) & (6) of the Constitution of Kenya 7

19 The Constitution of Kenya 2010 has other rafts of provisions on promoting access to justice for all, specifically Articles 10, 48, 50, 159 and 174. This means that discussions on legal aid are informed by both domestic considerations as well as international human rights law. Additionally, the government has developed a robust legal and policy framework aimed at promoting legal aid to expand access to justice to her citizens. It is therefore correct to state that there is a strong legal basis under Kenyan law for the development of a Legal Aid National Action Plan. This includes not only national but international and regional legal frameworks as summarised below: Table 1: Summary of International Legislative Framework Instrument Summary Date of Ratification Universal Declaration on Human Rights International Convention on Civil and Political Rights Convention on the Elimination of All forms of Discrimination Against Women Convention on the Rights of the Child Article 8 Guarantees full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of rights and obligations. Guarantees right to an effective remedy to individual. Article 2(3) of the ICCPR requires an effective remedy by competent authority. Article 14 Provides for the right to equality before the courts and tribunals and to a fair trial. Article 26 All persons are equal before the law and are entitled without any discrimination to the equal protection and benefit of the law. Article 2(b) mandates state parties to adopt appropriate legislative and other measures, to prohibit discrimination against women; Article 2(c) obligates state parties to establish legal protection of the rights of women on an equal basis with men; Article 15(1) state parties shall accord to women equality with men before the law; Article 15(2) state parties shall accord to women in civil matters, a legal capacity identical to that of men and the same opportunities to exercise that capacity. Article 16 Protects a child from arbitrary or unlawful interference with his or her privacy, family, or correspondence, and unlawful attacks on his or her honour and reputation. Article 37 Guarantees every child deprived of his or her liberty prompt access to legal and other appropriate assistance and the right to challenge the legality of such deprivation before a court or other competent, independent and impartial authority, and to a prompt decision on any such action

20 Instrument Summary Date of Ratification The United Nations Standard Minimum Rules for the Treatment of Prisoners (the Nelson Mandela Rules) United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems Rule 41(3) Prisoners shall be allowed to defend themselves in person, or through legal assistance when the interests of justice so require, particularly in cases involving serious disciplinary charges. Rule 54(b) Rights of prisoners to written information upon admission which include methods of seeking information, access to legal advice, including through legal aid schemes, and procedures for making requests or complaints among others. Rule 61(1) Prisoners have a right to communicate and consult a legal advisor of their choice or a legal aid provider without delay, interception or censorship in conformity with domestic law. Rule 61(3) Right to effective legal aid. Rule 120(1) The entitlements and modalities governing the access of an untried prisoner to his or her legal advisor or legal aid provider for the purpose of his or her defence shall be governed by the same principles as outlined in Rule 61. Provides the principles on which a legal aid system in criminal justice in member states should be based. It encourages member states to adopt and strengthen measures to ensure that effective legal aid is provided. Principle 1. that legal aid is an essential element of a functioning criminal justice system that is based on the rule of law that the state must guarantee in the national legal systems and in the constitution. Principle 2. Places the responsibility for providing legal aid on the state. Principle 6. Non-discrimination in provision of legal aid. States should ensure the provision of legal aid to all persons regardless of status among other things. Principle 11. Primary consideration of the best interest of the child in matters affecting a child. Principle 14. Roots for partnerships and calls upon states to recognize and encourage the contribution of lawyers associations, universities, civil society and other groups and institutions in providing legal aid. Table 2: Summary of Regional Legislative Framework Instrument Summary Ratification Date African Charter on Human and People s Rights Article 3 guarantees every individual equality before the law and protection of the law. Article 7 makes provision for the right to have his cause heard. Article 7(1)(a) The right to an appeal to competent national organs against acts of violating fundamental rights as recognized and guaranteed by conventions, laws, regulations and customs in force. Article 7(1)(c) provides for the right to defence, including the right to be defended by counsel of one s choice

21 Instrument Summary Ratification Date African Charter on Human and People s Rights on the Rights of Women in Africa Lilongwe Declaration on Accessing Legal Aid in the Criminal Justice system in Africa. The Johannesburg Declaration on the Implementation of the United Nations Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems Article 8 Women and men are equal before the law and shall have the right to equal protection and benefit of the law. Article 8(a) guarantees effective access by women to judicial and legal services, including legal aid. Article 8(c) obligates state parties to establish adequate educational and other appropriate structures with particular attention to women and to sensitize everyone to the rights of women. Article8(f) mandates reform of existing discriminatory laws and practices to promote and protect the rights of women. Section 1. Makes provision for broader definition of legal aid to include legal advice, assistance, representation, education, and mechanisms for ADR; and to include a wide range of stakeholders, Mandates governments to give support to legal aid services. Section 3. Roots for provision of legal aid services at all stages of criminal justice processes. Section 4. Requires governments to provide legal aid to persons who have suffered in the hands of the officials in the criminal justice system to seek compensation for damages sustained. Sections 6 & 7. Diversification of legal aid delivery systems as well as service providers. Section 8. Encourages lawyers to undertake pro bono work. Section 9. Roots for ensuring sustainability of legal aid services. Section 10. Lend credence to legal literacy. Declaration is categorical that without access to effective legal representation, millions of poor and marginalized persons face the risk of arbitrary, extended, or illegal pretrial detention, as well as torture, coerced confessions, wrongful convictions, social stigma, detrimental impacts on health and livelihood and other abuses. It takes cognizance that such group of people also have many unmet legal needs in civil matters. The declaration calls upon all legal aid service providers to provide meaningful legal aid services for people who would otherwise not be able to access justice by properly monitoring and evaluating the quality of all services. It also calls upon international community including civil society networks to provide financial and technical support especially in conflict areas to ensure access to effective legal aid in all matters and in all its forms

22 Table 3: Summary of National Legal and Policy Framework on Legal Aid Statute Constitution Kenya Gazette Notice No. 370 of 20 th January, 2016 Practice Directions relating to Pauper Briefs Scheme and Pro Bono Services Legal Aid Act 2016 Summary Article 10(2b) human rights, non-discrimination and protection of the marginalized among others are key national values and principles in governance. Article 27(1) Equality before the law and the right to equal protection and equal benefit of the law. Article 47 fair administrative action, every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair. Article 48 makes access to justice a fundamental right. Article 50(2)(g) accused person has a choice of advocate for representation and must be informed of such right. Article 50(2)(h) makes provision for an accused person to be assigned an advocate at the state expense. Article 159 Introduces ADR and Traditional Justice Systems to bolster access to justice. Article 174(e) provides one of the objects of devolution is protection and promotion of the interest and rights of the minorities and the marginalized. It operationalizes Article 50, 50(2) and 50(2) (h) of the Constitution of Kenya, 2010, the Civil Procedure Act, Orders 33 and 44 related to the application of pauper briefs and pro bono services. The Chief Justice gave directions to which courts the pro bono services are provided, namely: Supreme Court, Court of Appeal, High Court and Magistrates Court. Provide instances for pro bono services which include capital cases and cases of children in conflict with the law in the Magistrate Court. Pro bono briefs to be allocated to individual advocates and not firms. Formation of pro bono committees in all stations chaired by the Registrar, Deputy Registrar, or Head of Station with membership of Court Administrator, a representative of the Law Society of Kenya and two nominees of the Court Users Committee and its function is to allocate pro bono briefs. Pegs fee for services offered at Kshs. 30,000/- Makes provision for legal aid and its funding mechanism. Establishes the National Legal Aid Service (NLAS) as a body corporate to provide legal services to the indigent in line with the Constitutional provisions and obligation. Section 7. Stipulates functions of NLAS as to establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable. To encourage and facilitate settlement of disputes through ADR, promote research in legal aid and access to justice, promote public interest litigation, provide for grants in aid of specific schemes to voluntary social service institutions. To work with universities, colleges and other institutions in a collaborative manner to promote and supervise the establishment of legal aid services among others. Section 9. Establishes an oversight board of service and provides for its functions to operationalize the activities envisioned in the Act to facilitate legal aid services in the country. 11

23 Statute Persons Deprived of Liberty Act, 2014 Civil Procedure Act, Cap 21 Children s Act Small Claims Court Act Victims Protection Act Prevention Against Torture Act County Government Act Summary Section 6 (b) Makes provisions for rights available to an accused person upon arrest and include notification of legal aid where it is available and its use. Section 11 (2) Aliens are also entitled to legal aid and assistance where consular service is not available. Section 1A (1) Makes provision of the overriding object of the Act is to facilitate the just, expeditious, proportionate and affordable resolution of civil disputes. Order 33 provides for a suit by paupers -persons unable to pay legal feesto be heard before the civil courts. Order 44 makes provision for appeals by Paupers. Section 59 Mediation. Section 186 guarantees every child accused of an offence who cannot afford counsel to be provided with legal representation by legal counsel at the expense of the state in preparation and presentation of his or her defence. Section 3 makes provision for disposal of small claims using the least expensive method; equal opportunity to access judicial services; fairness of process; and simplicity of procedure. Section 8 allows use of trained paralegals to serve as registrar and Sec. 20(2) expressly excludes appearance of legal practitioner in the courts as counsels of either party making the process simpler and faster for parties, good tenets of access to justice which legal aid is a component. Section 3 stipulates the objects of the Act among others is to recognize and give effect to the rights of victims of crime and to protect the dignity of victims through provision of better information, support services, reparations and compensation; establishment of programmes to assist vulnerable victims and to prevent victimization at all levels of government. These services are part of what legal aid is required to provide. It operationalizes Articles 25(a) and 29(d) of the Constitution of Kenya and bolsters rights of the accused person in the justice system or process and enhances access to justice. It gives effect to Article 176 of the Constitution on the role and responsibilities of County governments. Section 3 provides for objects and purpose of the Act. One of the objects that is closely related to legal aid is protection of the minority or vulnerable group, a component covered by legal aid services (Section 3(g)). Section 98, 99, 100 & 101 embraces civic education aimed at citizen empowerment. Section 99(f) lists one of the objectives of civic education is awareness creation on the bill of rights among others an initiative necessary for fulfilling the right to access justice from an informed point. This creates an obligation on the respective county governments to undertake public education in the counties. Section 119 has established citizen service centre, possible infrastructures that can be used to make it easy for legal aid to reach the community at county level as well act as access points for services. 12

24 The Constitution of Kenya 2010 has brought fundamental changes in the system of governance in Kenya. The Constitution decentralizes power by establishing counties with a degree of legislative power and measured amount of financial autonomy. The Constitution further improves the system of checks and balances, for example by requiring parliamentary approval of important public appointments, including police chiefs, the attorney-general, the director of public prosecutions and the members of constitutional commissions. In addition, the Constitution provides for a stronger and more independent judiciary. Whereas in the past the executive arm of government had significant influence over the appointment and removal of judicial officers, the 2010 constitution allows the judiciary itself to make these decisions through the creation of an independent Judicial Service Commission. This Commission has the mandate to promote and facilitate the independence and accountability of the judiciary and the efficient, effective and transparent administration of justice. The judiciary is also granted financial autonomy through the creation of the Judiciary Fund. The Constitution guarantees the right of every person to access justice and more particular legal aid to accused persons and calls upon the State to take appropriate policy, statutory and administrative interventions to ensure the efficacy of justice systems. 23 In order to guarantee this right for Kenyans, the Constitution broadens the available mechanisms in the justice system by encouraging the utilization of formal and informal justice systems. 24 In this regard, Article 159 recognizes the use of Alternative Dispute Resolution (ADR) and Traditional Dispute Resolution (TDR) mechanisms in addition to the court process. This provision envisages the underlying principles for the exercise of judicial authority in Kenya which include promotion of ADR and TDR mechanisms. 25 Furthermore, though policy making and resource allocation focuses on the formal justice system, informal systems of justice play an important role in Kenya. The country has also enacted legislation on ADR mechanisms, but the rules of practice are yet to be adopted by the Rules Committee of the High Court. 26 Despite the formal recognition coupled with a constitutional mandate for their promotion in appropriate dispute resolution strategies, TDR mechanisms and other community justice systems are yet to be institutionalized through adequate legal and policy measures that would ensure effective utilization of the same in access to justice. Examples of informal justice systems include the Mombasa Multiethnic Council of Imams and Preachers of Kenya (CIPK), Wazee wa Mtaa and Wazee wa Magogo for the Giriama community, Maslah for the Somali community, Kaya for the Digo community, Wazee wa Kijiji for the Taita community, Duruma and Matadetha for the Orma community and Gasa and Kijoamong for the Pokomo community See Articles 21, 48 and 50 of the Constitution. 24 See Article 159(2) (d) of the Constitution. 25 It stipulates that in exercising judicial authority, the courts and tribunals are to be guided by the following principles: (a) justice is to be done to all, irrespective of status, (b) justice shall not be delayed and (c) alternative forms of dispute resolution including reconciliation, mediation, arbitration and traditional dispute resolution mechanisms shall be promoted subject to clause 3. Clause 3 thereof provides that TDR mechanisms shall not be used in a way that (a) contravenes the Bill of Rights, (b)is repugnant to justice and morality or results in outcomes that are repugnant to justice and morality, or (c) is inconsistent with the Constitution or any written law. 26 The rules on ADR mechanisms are laid down in The Civil Procedure Act, Chapter 21 of the Laws of Kenya. 27 Danish Institute for Human Rights, Access to Justice and Legal Aid in East Africa: A Comparison of the Legal Aid Schemes used in the Region and the Level of Cooperation and Coordination between the various Actors, (2011) A report by the Danish Institute for Human Rights, based on a cooperation with the East Africa Law Society. 13

25 Other councils of elders in the country include Njuri Njeke, Luo Council of Elders, the Abagusii, and the Kikuyu among others. The councils of elders play a pivotal role in society in settling disputes. They are the first contact in community whenever any violations occur and because the community always wants to preserve their relationships, they resort to the elders rather than go the formal justice system. Many cases that may have ended up in court are therefore dealt with at the community level through traditional justice systems. Many civil societies in Kenya are engaging with the council of elders to deal with the respective issues within their organizational mandate. These ranges from child rights, women s issues, land among others. For example through the intervention of some council of elders, many widows have gotten their land back after dispossession by in-laws. Some elders have helped to engage the community and developed strategies to confront some of the traditional harmful practices. Both government and civil society recognize the good work done by the elders in promoting access to justice in the community. There is a trend in government to build the capacities of these elders in human rights and legal rights generally to be able to embrace them in settling disputes at community level. For instance, on 4 th March 2016, a task force on traditional, informal, and other mechanisms used to access justice in Kenya to complement the formal justice system was put in place to work in tandem with the Judicial Training Institute. 28 Its main mandate is to formulate policy on mainstreaming existing mechanisms for justice and develop a framework to increase access to justice through traditional and other mechanisms. This is one way of enhancing access to justice. Other important actors in Kenya s legal system include the Attorney-General, who is the principal legal advisor to the government and represents the government in court; the Director of Public Prosecution, who has the power to prosecute criminal cases and also direct the Inspector-General of the National Police Service to investigate allegations of criminal conduct; and the Kenya National Commission on Human Rights (KNCHR), which is established by the Constitution to monitor and promote the protection of human rights in Kenya. Kenya uses the common law system; however, Islamic and customary law are recognized and also play a role in the legal system. D. Legal Aid Response This section presents the initiatives undertaken by both the government and other legal aid providers (i.e. civil society organizations) in providing mechanisms for the indigent to access justice in Kenya. Promoting the administration of justice and the rule of law is one of the several priorities of the Government of Kenya. Despite the more than four decades delay for Kenya to include legal aid in the country s policy papers as a key access to justice component and poverty fighting measure, 29 there have been several policy and programmatic efforts 28 Gazette Notice No of 2016, on Appointment of Task force on Traditional, Informal and other Mechanisms used to Access Justice in Kenya (Alternative Justice Systems) 29 The first recognition of legal aid in Kenya s policy framework was in the Poverty Reduction Strategy Paper for which pointed out that Communities and the poor cited lack of access to socially responsive and affordable legal and judicial services as critical issues that need to be addressed by the government in the fight against poverty. The Government of Kenya has come up with a practical and affordable and effective legal education and aid delivery scheme that increases access to justice for the poor in Kenya in accordance with the priorities set out in the poverty alleviation strategy. It is the poor who suffer most from the effects of weak, unaccountable and insensitive legal and judicial systems. 14

26 aimed at addressing legal aid problems in Kenya. Some of the policy initiatives targeted towards legal aid and access to justice, in addition to the Poverty Reduction Strategy Paper, include: the National Poverty Eradication Plan ; the Investment Programme for Economic Recovery Strategy for Wealth and Employment Creation (ERS) ; and the Kenya Vision These initiatives identify lack of access to justice as having a direct link to poverty. Accordingly, they recognize the need for access to justice as a critical pillar for economic development and poverty reduction. Efforts by the government have consequently been geared towards comprehensive reforms. These have included a review of the legal sector covering the Office of the Attorney-General and Department of Justice (OAG & DOJ), the Office of the Director of Public Prosecutions (ODPP), the Judiciary, legal aid institutions, and other law enforcement agencies such as the police, prisons, children and probation services departments. NLAAP and the Legal Aid Act 30 are recent pillars in the country s legal and policy framework in response to the need to address issues surrounding legal aid and access to justice. The said legislation and the policy document have been used to develop this Action Plan. Legal aid is a critical component of enhancing access to justice. It is important therefore to briefly discuss how government and the civil society dealt with issues of legal aid before the promulgation of the Constitution in 2010, enactment of the Legal Aid Act and approval of the current legal aid policy. Prior to the promulgation of the 2010 Constitution, the government provided legal aid services to indigent persons, albeit in limited manner. Legal aid was only available to accused persons who were charged with capital offences of murder facing trial in the High Court. Other criminal offences did not attract legal assistance from the state, exposing the accused persons to the rigours of the adversarial justice system. The civil procedure code had a window allowing those who could not afford fees to sue as a pauper, but the procedure of going through this process to determine eligibility was - and still is - daunting. The criminal paupers briefs were managed by the judiciary who then in turn appointed advocates to take up the matters at a paltry fee which discouraged senior lawyers from taking up such cases. With the increased demand for access to justice, the government took greater initiative to establish an institution that would spearhead provision of legal aid services. In 1999, the Legal Aid Steering Committee under the aegis of the AG s Office, commissioned a consultancy to design a pilot programme for testing suitable model(s) for a National Legal Aid Scheme. In a 2001 report the National Legal Education and Aid: Pilot Programme, the consultants proposed a framework for piloting legal aid and awareness programme in Kenya. However, the report was not validated until 2005 when the Ministry of Justice and Constitutional Affairs hand-picked other consultants to review the earlier report. After the review the report was subsequently validated in 2006 and led to the establishment of 30 No. 6 of

27 NALEAP in 2007 vide Gazette Notice of This was a build-up from previous efforts at creating a legal aid programme by the Attorney-General s office and other stakeholders. 31 The main objective of the pilot programme was to test an affordable, practical legal aid and service delivery scheme for indigent persons in line with government constitutional and international obligations on access to justice. The pilot programme was further designed to provide lessons for the design and development of an appropriate national legal aid legislation and policy. This Action Plan seeks to operationalize the Legal Aid Act and the Policy. The initiatives by the state point towards positive efforts to expand access to justice for indigent through legal aid. In addition to government efforts, Civil Society Organisations (CSO) such as non-governmental organizations (NGOs) and Community-Based Organisations (CBOs) including Faith-Based Organizations (FBOs) have initiated projects and programmes geared towards providing legal aid and legal awareness based on their specific areas of focus such as children s rights, rights of persons with disability, women s rights, prisoners, land rights, among others. The problem has been the steady increase for demand for legal aid services that outstrips the supply by the existing legal providers. In most cases the legal aid services offered by the various institutions are mandate driven. 32 Therefore many needy persons who do not fit into the selected eligibility criteria or specialized themes do not get to benefit from those services. The policy approach is aimed at ensuring a more sustainable and systematic government approach to legal aid provision. One of the most significant contributions of these schemes has been the breaking away from the old-fashioned philanthropic focus of the official interventions by addressing some class aspects of the problem, by promoting social change and empowerment. Additionally there is a paradigm shift in legal aid provision as the service is now anchored in the law creating better structure and modalities of operations. In spite of the initiatives by state and non-state actors to promote legal aid having had some degree of success, the demand for legal aid services is overwhelming and has stretched the capacities of relevant bodies and stakeholders involved in legal aid to their limits. Legal aid providers have been largely uncoordinated and their reach is limited as they are mainly located within major urban and peri-urban centers, leaving out rural and the marginalized populations in parts of Kenya. There have also been challenges with supervision, enforcement, standardization, and regulation, the frequency and quality provision of legal aid services by these stakeholders. E. Challenges The linkage between national legal aid strategies and access to justice is not understood by many. Furthermore, programme strategies are vertical in nature and lack access to justice 31 The National Legal Aid (and Awareness) Steering Committee was established in November Some of the organizations that provide legal aid in Kenya include Kituo Cha Sheria, Federation of Women Lawyers (FIDA-Kenya), Legal Resource Foundation (LRF), Law Society of Kenya (LSK), CRADDLE, Rift Valley Law Society Juvenile Project among others 16

28 as an outcome indicator. It is therefore important that policymakers and programmers are sensitized on the need to develop and design programme strategies that are holistic that includes access to justice as an outcome indicator. This is particularly significant in reference to provision of legal aid in civil case, an area that is largely unaddressed by policymakers. Coordination and collaboration of the different sectors in relation to access to justice objectives is imperative. Additionally legal aid related legislation, policies, strategies and guidelines need urgent review to align them to the 2010 Constitution. A legal, policy and institutional framework exist in Kenya relating to the right to legal aid, both in civil and criminal procedures. However, the legal system is faced with procedural, structural, human resource, fiscal, and administrative limitations, thus the indigent are unable to exercise this right. For example in the criminal justice system remandees endure inordinately long remand periods for reasons ranging from missing investigation files, long case lists, missing court files, failure of witnesses to attend court, among others. This is a situation that is further compounded by lack of legal representation. One consequence of access to justice problems in the formal legal system is that many Kenyans resort to alternative systems of justice, such as mediation processes facilitated by paralegals and community-based traditional justice systems. In some areas, such as Northern Kenya, informal justice systems have almost replaced the formal justice system, also in dealing with criminal offences. 33 However, there is an amount of interplay between the formal and informal justice systems, evident for example from the fact that community leaders who serve in informal justice systems can refer serious crimes cases to the ordinary courts. 34 The courts have also embraced the interplay with the informal justice system through court led mediation such as that which exists in Isiolo court where the court keeps a roster of council of elders. The court refer cases to the elders for determination and later recording of judgments and this is bearing fruit thus enhancing and expanding access to justice at the community level. 35 Apart from inadequate court infrastructure in many places, poverty and insufficient appreciation of legal rights and corruption inhibits access to justice for the majority. The use of traditional justice resolution (TJR) systems has also been relegated in favour of the formal justice system by people in far flung areas who however cannot physically access the courts. In addition, many Kenyans still cannot access justice due to the following reasons: the expensive nature of legal services, especially by private practitioners; limited reach of legal services by non-governmental providers; limiting nature of the pauper brief system which only caters for murder suspects while leaving out other capital offenders; the technical nature of the procedure of declaring one a pauper under the Civil Procedure Rules; 36 inadequate number of judicial officers leading to 33 Danish Institute for Human Rights (n 27 above). 34 As above. 35 LRF has established 200 cases that have benefitted from such system. 36 Under the 2010 Civil Procedure Rules, a litigant may apply to be declared a pauper where the litigant has an opportunity to file suit without the requisite filing fees and other court disbursements. However, the procedure laid down for instituting these suits under the Civil Procedure Rules is rarely applied for the reason that the applicants are usually illiterate and strict adherence to procedure would shut out many on technicalities. The procedure is so technical that a poor litigant still requires a lawyer to file the necessary application on her/his behalf. 17

29 backlogs and delays; inequality before the law; and under-utilization of ADR and TJR systems. It is important to note that Kenya s formal justice system is adversarial in nature and requires that one has either legal knowledge or legal representation. The functioning of the legal system in Kenya is reported to be poor and many people are sceptical about using it. 37 The former Chief Justice has highlighted several challenges affecting the Kenyan judiciary in the following words: We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic. We found a judiciary that was designed to fail. 38 Another problem concerns the lack of appreciation of human rights among some state agencies, especially those at the frontline of justice delivery. Cases of delay are also reported where people who are in detention serve their term as if they had been convicted even before their matter is completed in court. 39 A recently launched report on criminal justice system in Kenya revealed that on average, the criminal trial process takes between days whereas an appeal takes up to 7 years; time in remand ranges from days for females and days for men. 40 These delays impede expeditious access to justice, resulting in denial of justice. The validation and implementation of the Human Rights Policy, however, represents positive developments in the legal system. The strengthened position of the Judiciary, post 2010 Constitution, is also likely to remedy some of the challenges in the delivery of justice. In general, access to justice in Kenya remains limited. However, a recently conducted study by the Kenya National Commission on Human Rights (KNCHR) notes that legal aid services is increasingly being popularized and the government is continuously giving this issue the due attention. 41 The study found that 4420 citizens were provided with legal aid services by government in 2014/2015, up from 3500 in 2013/ The survey further found that there is an increased attention being provided to ADR, with growing numbers of people being trained on ADR by both the government and civil society organizations. 43 Increased application of ADR is considered as one of the measures that will lead to faster dispensation of cases, particularly in tribunals and traditional justice mechanisms. The study learnt that about 150 persons were trained on ADR in 2014/2015, while another 698 underwent similar training by the department of justice in the previous year. 44 In terms of 37 Willy Mutunga, Progress Report on the Transformation of the Judiciary: The First 120 Days, speech given in Nairobi, Kenya, October 19, 2011; available online at PROGRESS%20REPORT (120DAYS)% 20ON% pdf (accessed 16 February 2017). 38 As above at pages 6 & NALEAP, Baseline Survey on the Status of Legal Aid Services in Kenya (2011) National Legal Aid and Awareness Programme (NALEAP). 40 Criminal Justice System in Kenya: An Audit, (2016) National Council of Administration of Justice, Legal Resource Foundation Trust & Resource Oriented Development Initiatives. 41 Kenya National Commission on Human Rights (KNCHR), Human Rights Baseline Survey Report (2016), Kenya National Commission on Human Rights (Monitoring and Evaluation Department). 42 As above. 43 As above. 44 It was however not possible for the survey to establish the exact number of cases that had been resolved by ADR during the material year. 18

30 cases resolved by the formal judicial system, the survey established that a total of 302,126 cases had been resolved in 2014, with about 35% of these being resolved by tribunals. 45 The judiciary has also made tremendous efforts to deal with case back logs, particularly with the influence of the court users committees. 46 Other notable positive actions from the judiciary include also the court annexed mediation and the Judicial Service Week. The Judicial Service Week is a multi-agency collaboration that brings players in the justice chain work together under the banner of the National Council on the Administration of Justice (NCAJ). It brings on board lawyers in the private practice and those in the Office of the Director of Public Prosecution to support the initiative to reduce case backlogs in court and also to facilitate speedy access to justice. It is done to decongest prisons and reduce case backlogs in the various courts. In the Gazette Notice No. 370 of 2016, the Chief Justice published practice directions on pauper briefs schemes and pro bono services. One of the greatest achievements in the Notice is the setting up of pro bono services through the Court Users Committees and increasing the pro bono fee from Kshs.10,000 to Kshs. 30,000. This increase may trigger interest in lawyers to take up the cases. Though there has been an improvement, case backlogs still remain an issue that needs to be addressed closely, particularly in criminal matters. With respect to prosecutorial services, the KNCHR study found that there have been remarkable improvements in prosecutorial services since the passing of the 2010 constitution, as handled by the ODPP. 47 The increased number of prosecutors hired by the ODPP, increased decentralization, and improved investigations were some of the reported improvements in prosecutions. This improvement means that there is a pool of personnel available to provide services and that if legal aid is provided to the indigent that it may enhance speedy access to justice and reduce backlog associated with lack of personnel. In the baseline year, the ODPP had prosecuted a total of 115,566 cases, out of which 82% led to convictions. 48 The study also looked into staffing within the judiciary. The assessment made a finding that the judiciary is still grossly understaffed for an efficient dispensation of justice; with a total of 139 judges and 473 magistrates, as at end of This translates to a judge: population ratio of 1:323,741, and a magistrate: population ratio of 1:95, These ratios are considered too low for an efficient judicial system. The poorly resourced judiciary is symptomatic of the legal system in general, and more particularly in regard to legal aid. It can be argued that these problems in part are the result of insufficient support to legal aid to indigent persons. 45 As above. 46 Gazette Notice No. 370 of 2016, the former Chief Justice Dr. Willy Mutunga gazette practice directions on pauper briefs schemes and pro bono services. One of the greatest achievement there is setting up pro bono services through the Court Users Committee. 47 As above. 48 As above. 49 As above. 50 As above. 19

31 On the indicator of physical access to courts, the study was not able to establish the proportion of Kenyans that were within acceptable distance from courts. However, the survey established that in terms of physical access, 12% of the courts had been made to be compliant to the needs of Persons with Disability. 51 This is still low, from human rights consideration. Another problem concerns the availability of lawyers. Lawyers are generally deemed too expensive, complicated in language and not accessible in rural or urban slum areas. Lawyers are also regarded by the general public as being greedy, unreasonable and bent on complicating matters in court. With regard to pro bono services offered by lawyers, the quality has been said to be low and therefore disenfranchising litigants. The implication of this is an environment that is indifferent to the needs of the indigent and that is why legal aid is imperative. In terms of budgetary allocations to the judiciary from the government, the KNCHR study established that there has previously been reasonable support, but that this has been continuously going down over the last three years, thereby making it difficult for the judiciary to implement its transformation framework. 52 Data obtained from the study indicates that in the year 2016, the judiciary obtained a total of Kshs.13.8 billion, from an award of Kshs.13.9 billion in the previous year; a reduction of about Kshs.100 million in one year although this was against an increasing national budget. 53 This reduction constrains legal aid delivery by the judiciary in all its forms. Table 4. Budget Allocations to the Justice Sector Institutions Recurrent Development Total Gross Exp 2012/13 Gross Est 2013/2014 Gross Exp 2012/2013 Gross Est 2013/2014 Gross Exp 2012/2013 Gross Est 2013/ Judiciary 12, , , , DPP 1, , , KNHRC WPA CAJ NGEC NALEAP (Legal Aid) Source: Institute of Economic Affairs. The justice sector, as observed, has what amounts to a fair budgetary allocation. This stems from the discernible difference between the gross expenditure and gross estimates in each of the MDAs. It is to be noted that of all these departments, NALEAP received the least share of the budgetary allocation. The gap indicates the level of commitment for the Legal Aid programme as it stands and the financial resources available to make it significant. This could be owing to the fact that it is a programme yet to be completely operationalized 51 As above. 52 As above. 53 As above. 20

32 through the Legal Aid Act. Nevertheless, with the National Legal Aid Service established under the Legal Aid Act tasked with management of funds for Legal Aid in Kenya taking over, the allocation on development expenditure which appears very minimal compared to that allocated to other members of the justice sector should be considered for upward revision. This is because the current variation would severely impact the expected development in the delivery of Legal Aid services. This would consequently result in economic pressures limiting the rolling out of legal aid services countrywide. The allocations which support the provision of basic legal services and the establishment of the necessary resources should command the largest component of Legal Aid budget. This amount will enable proper management, compliance, and oversight within the Legal Aid system. Proper funding will also ensure innovations in pro bono legal services recommended in the National Legal Aid Policy; promote use of technology to advance access to justice and enhance the delivery of legal services efficiently and effectively, and to provide self-help resources to unrepresented persons. F. SWOT Analysis SWOT stands for strengths, weaknesses, opportunities and threats. Its identification is crucial for planning and strengthening of strategies that help achieve set objectives. SWOT is based on both internal and external factors that can facilitate or impede the implementation of activities and programmes set by an organisation in its Plan. NLAS has both opportunities and challenges which are summarised below in form of SWOT analysis. The following table provides the summaries: 21

33 STRENGTHS Supportive legislative and policy framework Political goodwill and commitment Increased legal awareness Increased demand for legal aid Strong partnerships Pool of lawyers, paralegals and mediators Improved services WEAKNESSES Lean staffing capacity to cover entire country Funding model that relies upon external factors High threshold to meet regarding standard operation procedures for legal aid Security risks and resistance to changing technologies Possibility of poor quality of services provided by pro bono actors Reporting and analysis Lack of support Poor strategic alliances OPPORTUNITIES Constitution Legal and policy framework Increased awareness Unsatisfied demand Integrated systems Effective coordination Strategic alliances Strong partnerships Political goodwill Heightened donor interests Technological advances THREATS Accelerated expectations vs. capacity Inconsistencies in keeping up with demand Competition Funding levels and priorities Shift in donor priorities Need to outsource hence loss of control over service delivery Abuse or misuse of services Lack of effective representation 22

34 2 CHAPTER TWO LEGAL AID ACTION PLAN ( ) A. Background Information The Government of Kenya has been engaged in the process of developing policies and programmes to address issues relating to legal aid and access to justice based on constitutional imperative as well as legislative mandate. NLAS is the body now mandated to facilitate, provide and coordinate legal aid in Kenya. Various strategies laid out in several policy initiatives have been crucial in shaping the direction of legal aid efforts in the country. These policies recognize the need for access to justice as a critical pillar for economic development and poverty reduction. Poverty has been identified as a major impediment to accessing justice in Kenya. 54 It is the poor who suffer most from the effects of weak, unaccountable and insensitive legal and judicial systems. In 2001, a broad based consultative process was undertaken which culminated in the Report (The Legal Education and Aid Programme: A Pilot) with a proposed framework for piloting legal aid and awareness in Kenya. In 2005 the Ministry for Justice and Constitutional Affairs commissioned a research to design a pilot project for a national legal aid scheme. In the same year, the ministry established a Ministerial Taskforce on the Development of a Policy and Legal Framework for Continuing Legal Education and Paralegalism, which recommended among other things, the entrenchment of paralegalism in the justice sector. Following the development of the Pilot design, in 2007 the government established the National Steering Committee for the NALEAP through a Gazette Notice No of 30th November 2007 with mandate to inter alia oversee, coordinate and monitor the overall implementation of the programme. 55 In September 2007 the Ministry of Justice, National Cohesion and Constitutional Affairs (MoJNCCA) launched the National Legal Aid (and Awareness) Programme, with the Secretariat in Nairobi and later in 2009 launched six pilots on six thematic areas. 56 NALEAP has contributed to the implementation of the government s first Medium Term Plan, and Vision 2030 under Strategic Theme 6 that focuses on increased access to justice. The programme had provided concrete inputs towards laying a foundation for the establishment of a structured and sustainable legal aid scheme to streamline the provision of legal aid services in Kenya. 54 The Poverty Reduction Strategy Paper (PRSP) of noted that communities and the poor cited lack of access to socially responsive and affordable legal and judicial services as critical issues that need to be addressed by the Government in the fight against poverty. 55 Members of the committee were drawn from key stakeholders in the justice sector, replicated at the pilot level as pilot project steering committees. 56 The six thematic pilot projects were the Nairobi High Court Family Division; the Moi University Law Clinic in Eldoret; the Nairobi Children s Court; the Nakuru Juvenile Justice; the Paralegal Advice Office in Kisumu and the Mombasa Capital Offences. 23

35 NALEAP the predecessor to NLAS piloted in six thematic areas from 2009 to 2013 with various legal aid providers and other stakeholders in the justice system. Through such initiatives certain lessons were learnt that helped shape up the development of the Legal Aid Act and the Policy and planning for future legal aid services. Some lessons learnt include: adopting a mixed delivery model for legal aid provision including self representation training, in-house and judicare models of legal aid; holistic approach to service provision; integration of ADR and TDR mechanisms; prioritization of interventions; regulatory framework; institutional independence; resource mobilization; coordination and collaboration mechanism to avoid duplication. NALEAP also drew lessons from initiatives by other stakeholders such as the Court Users Committee (CUCs) by the judiciary as being critical in fast-tracking court process and administration of justice through enhancement of dialogue. The critical role played by paralegals in creating legal awareness and sensitizing communities on their rights cannot be gainsaid as a key lesson. They are a link between the community and the lawyers and therefore fill gaps that exist for lawyers. Additionally, the community engages and identify more with the traditional justice system and therefore it is an important alternative way to access justice and should be embraced. It is important to have legislative, policy and institutional framework for legal aid provision. These lessons learnt informed the development of the Legal Aid Act and NLAAP was formulated with a clear vision of facilitating access to justice for all. NLAAP highlights seven (7) objectives and priorities that are crucial for the establishment of a sustainable and quality legal aid and awareness framework in line with the Constitution and other human rights standards. The objectives/ priorities include: i. To establish a framework for policies, laws and administrative processes that will ensure sustainable and quality access to justice to all. ii. iii. iv. To provide quality, effective and timely legal assistance, advice and representation for the poor, marginalized and vulnerable. To enhance access to justice through continuous legal awareness. To promote and institutionalize the paralegal approach in access to justice. v. To promote the use of Alternative and Traditional dispute resolution mechanisms. vi. vii. To establish an implementation, monitoring, regulatory and support framework for legal aid and awareness services in Kenya. To ensure and promote adequate allocation of resources including fiscal, human and technical for legal aid and awareness services in Kenya. B. Rationale for developing a National Legal Aid Action Plan There are three main rationales for consolidating government policy and law on access to justice into a clear and coherent national action plan: 24

36 Institutional Reform: Build stronger justice institutions through cross sector linkages and coordinated approach on legal aid issues Increase access to and quality services: Services must be meaningful, effective, efficient and responsive to community demands. A national action plan will help infuse public demand oriented legal aid that responds to the needs of all Kenyans, covering formal and informal institutions of justice. Justice and Poverty: increased access to justice will complement government efforts to reduce poverty and empower communities. Justice and Security: increasing the effectiveness of and confidence in the justice system can reduce conflict and improve human security. While Kenya has adopted a set of high impact access to justice interventions, the coverage of these interventions remains very low due to inadequate resources and low prioritization of legal aid as reflected by disparity in budgetary trends. Funding of legal aid programmes is not commensurate to its critical role in the justice sector. It must be appreciated that access to justice is vital for the attainment of the UN Sustainable Development Goals (SDGs), for any meaningful economic development and achievement of the Kenya Vision As acknowledged in the NLAAP, an efficient, accessible, timely, affordable legal and judicial service encourages a culture of law abiding citizenry and human rights protection which are cornerstones to social, political and economic development. Therefore this Action Plan is a practical tool that presents an opportunity to accelerate action towards achieving SDGs and Vision The Plan s main aim is to operationalize the Legal Aid Act 2016 and the Policy. The Action Plan will also be used as a resource mobilization tool by legal aid providers and a guide to investment to cost effective legal aid interventions. It is however appreciated that the achievement of the targeted SDGs by this Plan can only be realized if access to justice issues is strategically positioned in the country s overall development agenda. There is also need to harness the synergy between reforms in the justice sector and legal aid programmes. This Plan is, therefore, to be implemented within the framework of integrated approach by the Ministry responsible for Justice. In addition, cross sector linkages will be strengthened so as to contribute to the realization of this Plan. For each of the key intervention activities identified in the activity matrix of the Plan, there are lead implementing and supporting agencies. This is to ensure that lead agencies are held accountable for the implementation of the Plan. The Plan is aligned to the government s Medium Term Plans (MTPs) to ensure that the government factors the Plan s interventions into its planning and budgeting processes, in order to enhance budgetary allocation for legal aid activities. C. Purpose of the Action Plan This Plan has been developed to operationalize the strategies outlined in NLAAP. It serves as a road map for coordinated implementation of legal aid interventions by the government and legal aid stakeholders across development sectors for maximum impact. 25

37 D. Strategic Objectives This section highlights the eight (8) strategic objectives, as enlisted in the Strategy to Implement. i) Strategic Objective 1 To strengthen framework for policies, laws and administrative processes that will ensure sustainable and quality access to justice to all The normative legal and policy framework refers to the presence of a legal and policy umbrella that defines rights and duties, reflecting customs and accepted social behaviour. This encompasses national law and has three main elements: one, the substance of rules; two, processes by which rules are made and amended; and three, actors and institutions involved in determining the process and substance. The current normative framework established by the government is aimed at achieving the vision laid down in the NLAAP, and subsequently, guaranteeing the success of this Plan. Within this scope, it has been planned to implement and accelerate the works as provided for in the current subsisting legal and policy frameworks to strengthen the institutional processes. The framework functions as a measure of gauging the government s commitment towards provision of legal aid services as well as holding it accountable for failure or non-performance. The framework provides for agencies tasked with the responsibility of administering, implementing, coordinating, monitoring and evaluating the national legal aid scheme in accordance with Kenya s national and international obligations to provide legal aid services by the state to indigent, marginalized and vulnerable persons. The Plan focuses on activities that will ensure the implementation of the normative framework. Priority Areas/ Strategic Actions Implement Legal Aid Act and Legal Aid and Awareness Policy (the normative framework) Eliminate impediments to access to justice through legal literacy Establish partnerships with legal aid providers Collaborate and cooperate with legal aid providers Expected Outcome: Government responsibility for legal aid provisions including paralegal, ADR formalized through legislation and institutionalized. ii) Strategic Objective 2 To provide quality, effective and timely legal assistance, advice and representation for the poor, marginalized and vulnerable 26

38 The delivery of quality legal assistance is significant to ensure effective access to justice, a fair hearing, respect for the principle of equality and respect for the rights of the poor, marginalized and vulnerable persons including women, children, and persons with disability. It also helps to guarantee access to a fair procedure so that the claim can be correctly determined and the right to a remedy effected. It is also part of the principle of effective judicial protection. 57 Quality legal assistance also contributes to finding a durable solution. The delivery of timely legal assistance also contributes to better quality, fairer, and well-reasoned decisions, and more efficient and cost effective procedures in the interest of government. In most cases in Kenya, it is extremely difficult for indigent persons to access justice because of the high cost of lawyer s fees, the legalese, and the technical procedures in the justice system. As a result of poor quality representation these persons can therefore get to the end of the decision-making process without ever having had the merits of his/her case properly assessed. In order to facilitate and improve the access to justice in line with the developments throughout the world, many significant changes have been introduced in Kenya in recent years. For instance, there is constitutional recognition of ADR and TDR as facilitating access to justice which minimizes delays and backlog of cases in court. There are also clear structures that facilitate legal aid to determined victims and accused persons through legal representation and advice. The Retired Hon. Chief Justice, Dr. Willy Mutunga, on the 20th January 2016 vide Gazette Notice No. 370, gave practice directions relating to pauper brief scheme and pro bono services to apply in capital cases and cases of children in conflict with the law in the Magistrates Courts. 58 Despite improvements such as this, it is necessary to enable the legal aid system to function efficiently. In the Plan, it will be ensured to increase the awareness of the public opinion and establish an institutional structuring which will measure the quality and undertake inspection/ audit of the legal aid system. Priority Areas/ Strategic Actions Roll out National Legal Aid and Awareness schemes. Determine most suitable model (or mix of models) for implementing a sustainable national legal aid and awareness scheme to determine eligibility criteria for legal aid using objective standards such as the means test, merit test and any other relevant considerations. Form strategic partnerships with private sector, CSOs, CBOs, NGOs and other non-governmental entities to undertake legal aid. Integrate legal awareness and legal aid into existing community initiatives and government-run social services such as health, probation and children services, among others. 57 The right to an effective judicial protection is a fundamental right recognised at international level as well as by the majority of national legal orders, and an essential element of democratic accountability. This right refers to a broad concept which generally encompasses various core elements, including access to justice, the right to an effective remedy and the principles of fair trial and due process of law. Provisions variously related to one or more of those elements may be found in most of the human rights instruments existing at international level, and notably in Article 8 of the Universal Declaration of Human Rights, in Articles 2, 9 and 14 of the International Covenant on Civil and Political Rights. See Francesco Francioni (ed.), Access to Justice as a Human Right, (OUP 2007). 58 The directions took effect as from 1st July

39 Expected Outcome: Legal aid services enhanced, in quality and quantity, covering all counties in the country improving access to justice for the poor and vulnerable. iii) Strategic Objective 3 To enhance access to justice through legal aid and awareness One of the most common strategies in the fight against legal illiteracy and ignorance on human rights entitlement is awareness and advocacy campaign. Legal literacy and public education is a key aspect in confronting the problem of human rights violations and access to justice. Enforcement of rights is dependent on both an awareness that those rights exist and knowledge of avenues for redress. Lack of legal awareness is a serious impediment to accessing justice, in particular for the poor who are less likely to be familiar with their rights and less likely to use the formal system. NLAAP acknowledges that many people are not aware of their rights and generally lack information about the service providers and are therefore unable to enforce or claim their rights when there are violations. Several lessons learned can be drawn from experience implementing legal awareness programmes: i. Legal awareness programmes need to be relevant to the day-to-day lives of the target population. They work best when linked directly to economic issues such as labour, land and property rights. ii. iii. Information needs vary significantly depending on local context. For instance, labour rights tend to be more important in urban areas, whereas land rights are the main concern in rural areas. Legal information should link to the main types of disputes that occur in Kenya. Linking judges, prosecutors and police with community groups can enhance community legal awareness, increase public trust in the state and improve the capacity of the legal apparatus to respond to the needs of the poor. Communitybased legal aid centres and paralegals are effective mechanisms for delivering legal information at the grassroots level. Legal education empowers and enhances communities understanding on their legal rights with ability to question and demand for accountability. There is need to undertake legal education in order to reach out to poor and vulnerable population who may not be aware of their rights. This is so as most indigent do not fully appreciate their legal entitlements as protected by the law. Undertaking legal education programmes will not only ensure that awareness has been created among citizens, but also that citizens will be equipped with proper skills and be able to make informed choices about their legal rights and responsibilities. The development and publication of a simplified Constitution and other legislation including translation into Kiswahili and local languages which are understood and read by many will enhance citizens legal knowledge on their rights. Such awareness should entail information on where to get help and the processes involved to make it easy for victims to access justice. 28

40 Priority Areas/ Strategic Actions Develop, disseminate and implement national legal aid advocacy, communication and social mobilization strategy at all levels Conduct formative and periodic assessments on the status of legal aid and awareness in the general population Advocate for the OAG/DOJ and other key government offices to develop, translate and publish a simplified version of the Constitution and other legislation into Kiswahili and other local languages Develop Self Representation Manual, train citizen to face trial with confidence and knowledge of the law Capacity building for service providers on legal aid and awareness, including communication and advocacy skills Promote measures to ensure the indigent access justice at all levels Establish Community Legal Aid Centers Legal aid open days marked nationally and in all counties Expected Outcome: Increased awareness (educated and informed communities on their constitutional rights and responsibilities). iv) Strategic Objective 4 To promote and institutionalise the Paralegal approach in access to justice Access to justice presents challenges to indigents. The formal justice system needs to be strengthened to ensure recourse to the courts is possible for indigent persons. Only a combination of top-down and bottom-up approaches strengthening grassroots access to justice and reforming formal justice systems will ultimately ensure rule of law and access to justice for the poor. 59 Thus the key aspect of rights enablement is strengthening the demand side through bottom-up approaches such as using paralegals. 60 Paralegals address those living in poverty and marginalization at the community level. 61 They provide legal education, advice and assistance, making access to justice more accessible and affordable. Their goal is to develop the capacities of their target groups to demand access to and enforcement of their rights. Paralegals work closely with chiefs, police officers, probation officers, children officers, prison officers, lawyers and land officers, among others. They may assist in developing legal awareness, giving legal advice, being intermediaries and accompanying complainants 59 Anderson, Michael R. Access to justice and legal process: making legal institutions responsive to poor people in LDCs IDS Working Paper, no. 178 (2003). 60 Gready, Paul, and Jonathan Ensor. Introduction.In Reinventing Development, Translating Rights-Based Approaches from Theory into Practice, edited by Paul Gready and Jonathan Ensor, London: Zed Books, There are more than 3,000 paralegals in Kenya working in the community, prisons, police stations, courts and other state, private and civil society agencies a remarkable figure when you consider the number of lawyers supposed to be in practice (according to the Law Society of Kenya, about 7,000). 29

41 or accused persons to police stations or court, drafting simple court or legal documents, watchdog advocacy on land and human rights abuses, counselling and referring matters to relevant agencies including, if necessary, advocates. Article 49(1) (c) provides that an arrested person has a right to communicate with an advocate, and other persons whose assistance is necessary. Many paralegals as other persons at the police stations have assisted in bail or bond application requests. Facilitating empowerment of the target group by developing capacity and voice on the demand side of justice programming is essential for achieving accountability. 62 Paralegal work is a key factor for providing legal advice and services for the poor in order to claim their rights. Paralegals are creating knowledge bases in local communities and thus improving access to justice for those communities. Their lobbying and advocacy work helps to demystify the law and they put pressure on government bodies to enforce law implementation. 63 There is therefore need for training to have skilled paralegals that can make a difference in the justice system. Mechanism should be put in place for their regulation to ensure standards of service provided and a code of conduct established for their operations. Ultimately the rationale for developing paralegal professions is that they will improve access to justice for the population generally. Therefore, the government and other relevant stakeholders can support official acknowledgment and institutionalisation of paralegal work. Priority Areas/ Strategic Actions Develop clear accreditation, certification and licensing system for paralegals Work together with current service providers to strengthen existing training for paralegals Assist relevant agencies and service providers develop syllabi and curricula for training of paralegals Establish a training system for paralegals Set up criteria for admission for training as well as standards for qualification as paralegal to ensure quality Expected Outcome: Properly trained and supervised pool of paralegal experts to provide range of legal aid services and expanded access to justice to the poor and vulnerable. v) Strategic Objective 5 To promote the use of Alternative and Traditional dispute resolution mechanisms Delay of justice because of the excessive workload of the courts is considered as one of the most critical problems. The alternative and traditional dispute resolution methods contribute to 62 Eyben, R. and R. León (2005) Whose Aid?, in: D. Mosse and D. Lewis (eds), The Aid Effect, Pluto Press, London. 63 Albright, Madeleine K. and de Soto, H. (2008) Making the Law work for Everyone, UN Commission on Legal Empowerment of the Poor, UN, New York. 30

42 the jurisdiction by reducing the workload of judicial bodies and therefore, become an important part of justice reform. As already highlighted previously, the 2010 Constitution recognizes alternative dispute resolution and raises its status to a judicial principle. Specifically, the Constitution requires the Judiciary to promote alternative forms of dispute resolution, among them reconciliation, mediation, arbitration and traditional dispute resolution mechanisms, as long as they are not repugnant to justice and morality, or are inconsistent with the Constitution. In this regard, Article 159 recognizes the use of ADR and TDR mechanisms in addition to the court process. Article 159 (2) envisages the underlying principles for the exercise of judicial authority in Kenya which include promotion of ADR and TDR mechanisms. In spite of the formal recognition coupled with a constitutional mandate for their promotion in appropriate dispute resolution strategies, TDR mechanisms and other community justice systems are yet to be institutionalized by way of putting in place supporting adequate legal and policy measures that would ensure effective utilization of the same in access to justice. There exists no substantive policy or legislative framework to guide the promotion and use of these mechanisms despite their constitutional recognition and limitations set out under Article 159(2) and (3). 64 There is therefore need for appropriate policy, statutory and administrative measures which will ensure that the TDR strategies and other informal justice systems find their rightful place in the conventional judicial system and that the same are meaningfully and actively utilized in facilitating access to justice especially for poor Kenyans. This was made a reality on 4th March 2016, when the former Chief Justice Dr. Willy Mutunga appointed a task force on traditional, informal, and other mechanisms used to access justice in Kenya to complement the formal justice system 65. The task force is working with the Judiciary Training Institute (JTI) to examine existing models of court-annexed alternative justice systems in the country. It is instructive to note that the main objective of the task force is to formulate policy on mainstreaming existing mechanisms for justice and develop a framework to increase access to justice through traditional and other mechanisms. Access to justice by majority of citizenry has been hampered by many unfavourable factors which include high filing fees, bureaucracy, complex procedures, illiteracy, distance from the courts and lack of legal know-how. 66 This makes access to justice through litigation a preserve of select few. Through providing for the use of ADR and TDR mechanisms to enhance access to justice, the 2010 Constitution was responding to the foregoing challenge in order to make the right of access to justice accessible by all. It was in recognition of the fact that TDR and other ADR mechanisms are significant in promoting access to justice among many communities in Kenya It is noteworthy that the Constitution calls for promotion of alternative and traditional forms of dispute resolution as a guiding principle in the exercise of judicial authority by courts and tribunals but not necessarily as a requirement under any written law. 65 Gazette Notice No of 2016, on Appointment of Taskforce on Traditional, Informal and other Mechanisms used to Access Justice in Kenya (Alternative Justice Systems) 66 J.B. Ojwang, The Role of the Judiciary in Promoting Environmental Compliance and Sustainable Development, 1 Kenya Law Review Journal 19 (2007), pp at p Indeed, a great percentage of disputes in Kenya are resolved at the community level through the use of community elders and other persons mandated to keep peace and order. See K. Muigua, Resolving Conflicts through Mediation in Kenya, (Glenwood Publishers, 2012). pp ; See also J. Kenyatta, Facing Mount Kenya: The Tribal Life of the Kikuyu, (Vintage Books Edition, October 1965). 31

43 Priority Areas/ Strategic Actions Development of syllabi and curricula for trainers Carry out research on ADR and traditional justice systems Document best practices in ADR Establish or strengthen existing training for ADR practitioners Establish training for traditional justice leaders Undertake research, document and disseminate information on ADR and traditional justice system Develop data collection tool to monitor and evaluate usage of ADR Establish and strengthen strategic partnerships with reputable research institutions/ organizations and academia on ADR, TDR and access to justice Develop data collection tool to monitor and evaluate usage of ADR Document best practices and share information and experiences Expected Outcome: Increase in access points and service delivery options that are responsive to the needs of indigent persons including early resolution and reduction in litigation through ADR and TJS. vi) Strategic Objective 6 To establish an implementation, monitoring, regulatory and support framework Much has been done by the government and other stakeholders to provide legal aid in Kenya. However, until recently when NLAAP was adopted and the Legal Aid Act enacted, these efforts did not derive from a known comprehensive policy, and they were not legally documented. Legal aid legislation and the implementation, monitoring, regulatory and support processes involved were scattered over various national and international legislations which Kenya is party to. The absence of a policy and regulatory framework for legal aid service provision also means that there was no set standard for service delivery and no clear mechanism to manage or control the services provided. Additionally, although there has been a general expansion of legal aid provision in the country, without a clear strategic plan of action, the related policy and legal framework aspects remain weak. The result is low levels of regulation and coordination of legal aid services with regard to planning, implementation, funding as well as monitoring and evaluation. Implementing, monitoring and evaluating regulatory and support framework for legal aid is critical for measuring performance and evaluating the impact of interventions. These systems include periodic surveys, audits and assessments. Feedback on monitoring and evaluation is necessary to ensure that the information obtained is used to improve, strengthen or 32

44 change strategy in provision of services. Because of the inherent susceptibility to criticism of the quality of any service provided by the state at no cost to the citizen, it is important for a provider of legal aid services to have stringent quality control measures in place. It is therefore important to develop a comprehensive quality monitoring and intervention programme. Priority Areas/ Strategic Actions Establish training and accreditation systems for legal aid providers Set up systems for quality assurance to ensure quality of services Develop clear accreditation for legal aid service providers Develop system and mechanisms for data collection, analysis and dissemination to inform programming Develop procedures and policies that are universally acceptable for monitoring and evaluation Establish or strengthen existing tools or mechanism for monitoring and evaluation Expected Outcome: Existing and full application of monitoring, regulatory, learning and support framework on legal aid and awareness interventions. vii) Strategic Objective 7 To allot fiscal, human and technical resources for legal aid and awareness services in Kenya The capacity of the fiscal, human and technical resources is necessary to be strong in order to perform the judicial services on time, in an accurate and efficient way. The government is therefore constantly in search of ways to set up legal aid services in order to accommodate both its capacity and needs of the people. The position of legal aid services as institutions within government structures should be an internal decision of the government, which corresponds to the arrangements and resources available. In this case, it should be ensured that the legal aid service is independent and has the necessary instruments, funds and other resources, including human and technical resources, in place in order to function effectively. The UN Principles and Guidelines on Access to Legal Aid in Criminal Justice Systems, 68 which are drawn from international standards and recognize good practices, aim to provide guidance to States on the fundamental principles on which a legal aid system in criminal justice should be based and to outline the specific elements required for an effective and sustainable national legal aid system. The UN Principles and Guidelines recognize the State s duty and responsibility to provide legal aid and to ensure that a comprehensive, accessible, 68 In April 2012, the UN Commission on Crime Prevention and Criminal Justice adopted this instrument as the first international instrument exclusively dedicated to legal aid. The instrument was subsequently endorsed by the General Assembly in December It provides a broad framework for institutionalizing and applying international principles in local contexts to ensure that suspects, detainees, accused and imprisoned persons have access to legal aid. 33

45 effective, sustainable and credible legal aid system is in place. 69 This can only be possible where sufficient resources are allocated for legal aid and awareness services in the country. As has been the experience throughout the world, slow economic growth and recession has impacted negatively on government revenue and expenditure and in response to meet its financial demands, government will always adopt a cost-cutting measure in all sectors. Currently NALEAP uses budgetary allocations from Office of the Attorney-General and Department of Justice; it has no direct budget under its control. If there is insufficient funding from government there will be a challenge in securing alternative funding, to finance legal aid institution to cushion its operations. Budget constraints threaten the sustainability of the organization as in the best of times, it is a challenge for any legal aid organization to match rising demand, with limited available capacity. It is critical that the government prioritize legal aid funding in the budget within the Governance, Justice, Law and Order Sector (GJLOS). Priority Areas/ Strategic Actions Develop fund-raising strategies Pursue government appropriations through annual budgets Develop proposals and submit to development partners for funding Build capacity of staff, implementing partners and relevant legal aid actors Undertake research to support delivery of quality services Develop competency and skills for support staff Build partnerships with legal aid actors to improve access Invest in technology to support administration of grants, high quality recording and storage of case management Develop campaign and communication strategies using social media, print and electronic media Expected Outcome: Increased human, financial, technical and material resource allocated for legal aid and awareness interventions. viii) Strategic Objective 8 To undertake research to ensure evidence-based initiatives Research is the systematic investigation and study of materials and sources to establish facts and reach new conclusions, so it shapes people s understanding of the world around them. Well-conducted research is vital to the success of legal aid and awareness 69 Principle 2 of the UN Guidelines and Principles (above). 34

46 interventions. It provides a foundation for program development and policies, and its findings can be translated into effective legal aid and awareness programs. Research draws its power from the fact that it is empirical: rather than merely theorizing about what might be effective or what could work, researchers go out into the field and design studies that give policymakers hard data on which they can base their decisions. Furthermore, good research produces results that are examinable by peers, methodologies that can be replicated, and knowledge that can be applied to real-world situations. Researchers work as a team to enhance our knowledge of how to best address the world s problems. Kenya is fortunate in having an extensive background in justice system research. For its part, NALEAP regularly funds research on issues relating to provision of legal aid and access to justice. NALEAP also conducts evaluations of its programs and pilot projects to inform policy and program development and to guide decision-making. More is needed, however, particularly in the area of adequacy of legal aid services in the country. How can we best measure and demonstrate the success of services? What benefits result from prevention and from intervention at different points in the service continuum? There is also a need to determine which legal services should be provided as a matter of law, which are desirable on social justice and other policy grounds, and which services, if not provided, end up costing Kenyans more. Research can be highly relevant and valuable by focusing on practices that help resolve the most urgent and frequent problems. Research can also give the relevant stakeholders insight into the performance and fairness of the justice system. Government and other actors in the legal aid provision should prioritize funds to undertake research to ensure that any programme or intervention undertaken is evidenced-based and conforms to the people s needs. Priority Areas/ Strategic Actions Develop research tools Undertake evidence-based research to inform legal aid programme interventions Promote documentation of best practices Undertake needs assessment to identify the needs of the vulnerable, poor and marginalized populations in terms of programme interventions Promote innovative approaches to legal aid and awareness Build partnerships with research-oriented institutions and other relevant legal aid actors Allocate and dedicate sufficient financial resources to research activities Expected Outcome: Innovative approaches to legal aid and awareness services supported through evidencebased initiatives. 35

47 Summary of the objectives and outcomes Strategic Objective Priority Areas Outcomes Strategic Objective 1 Strengthen framework on legal aid Implement Legal Aid Act and Policy Promote legal literacy Government responsibility for legal aid formalized through legislation and institutionalized. Strategic Objective 2 Provision of quality, effective and timely legal assistance Choose suitable legal aid model Form strategic partnerships Integration of legal aid in community initiatives Legal aid services enhanced in quality and quantity, covering all counties in the country improving access to justice for the poor and vulnerable Strategic Objective 3 Enhancing legal aid and rights awareness Advocacy at all levels Capacity building for legal aid providers Establish community legal aid centres Increased awareness (educated and informed communities on their constitutional rights and responsibilities). Strategic Objective 4 Promoting standardised use of paralegals for legal aid Strengthen use and appreciation of paralegals for legal aid Develop accreditation & certification for paralegals Properly trained and supervised pool of paralegal experts to provide range of legal aid services and expanded access to justice to the poor and vulnerable Strategic Objective 5 Promote ADR and TDR Document best practices in ADR and TDR Train ADR and TDR practitioners Increase in access points and service delivery options that are responsive to the needs of indigent persons including early resolution and reduction in litigation through ADR and TJS. Strategic Objective 6 Establish implementation, monitoring, regulatory & Support Develop tools & procedures universally acceptable for M&E Existing and full application of monitoring, regulatory, learning and support framework on legal aid and awareness interventions Strategic Objective 7 Allot fiscal, human & technical resources Develop fund-raising strategies national budget Invest in technology Increased human, financial, technical and material resource allocation for legal aid and awareness interventions Strategic Objective 8 Undertake research to ensure evidence-based initiatives Develop research tools and undertake evidence-based research Promote innovative approaches to legal aid Innovative approaches to legal aid and awareness services supported through evidence-based initiatives ACCESS TO JUSTICE 36