Without Representation
Looking at the state of legal aid in Kenya it is clear this is not a country in which you want to be poor and accused of criminal activities. Poor people who are accused of murder and armed robbery are often accorded legal aid services, however, persons accused of petty crimes are left without the option of applying for legal aid. The Constitution states that, “every accused person has the right to a fair trial, which includes the right to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly.”
While the constitution is clear on this point, the reality is that not every criminal gets legal aid. “Legal aid can be a very costly process, thus limiting it to Capital offenders where the death penalty is possible,” states Public Interest and Human Rights Lawyer, Murunga Murere in his blog, Wakilimjanja.
Sigar Agumba works as a coordinator at the Kibera gender based violence working group, “some people end up being arraigned in court before police officers do investigations. Police just hear the complaints and arrest people,” he says. Ideally, a police officer should inform a suspect of their rights at the point of arrest. Few policemen follow the protocol, and people are detained in jail without having any kind of legal representation.
“This right has to be realized progressively. It means, given the resources that the country has currently, it cannot be used to realize some of the rights that are provided by the constitution,” states Edigah Kavulavu who is a lawyer working on criminal justice matters. Technically, since the constitution was promulgated in 2010, the state still has until the end of 2014 to put legal aid mechanisms in place. Mr Dominic Kimaru Tanui defended himself in court for most of his court case and claimed, in addition to being denied legal counsel, he was arrested without a warrant, and no DNA tests were done to prove him guilty of defilement. The report states why Tanui’s claims were void and the appeal case was dismissed. Tanui is serving a life imprisonment sentence.
Kavulavu is not surprised at the botched appeal and appeals to past cases he has seen: “In most cases where people were representing themselves in criminal matters, they would fail,” he says. One of the main problems is a corrupt police force that is rarely concerned with citizen’s rights. A prison guard, who prefers to remain anonymous, recalls receiving an inmate late last year, who claimed to be raped by a policeman. “She reported him to the police station and when the officers were unable to convince her to drop charges against the suspected policeman, she was detained and framed for falsely accusing him,” he says.
I call The National Legal Aid and Awareness Program after obtaining a number listed on its Facebook page. A lady picks up after two rings and asks me what I do, “I am a hairdresser”, I proclaim. I ask her about wanting advice when I appear in court and her response is I must ‘observe general etiquette’ in court. Her answers are general, but she tries to be helpful. I am told I have meet to eligibility requirements to seek legal aid. “You have to prove that you can’t hire a lawyer,” meaning someone with an income below KES 15,000. The conversation is short and slightly shallow but to the lady’s credit, she perkily tells me there is training on self-representation.
A Broken System
As it stands, Kenya’s legal aid services are left to organizations such as: the Law Society of Kenya, Kenya School of Law, Kenya National Commission on Human Rights (../../KNCHR.jpg) and Federation of Women Lawyers Kenya (FIDA) to educate the public on their rights and work to represent seriously disenfranchised persons.
FIDA is an important Human Rights body that helps women actualize their rights. Though, even such an effective organization and others like it cannot keep up with the demand for legal representation. FIDA is unable to cope with the large number of women seeking help and this is the main reason why the self-representation training program was started.
The organization’s program seeks to empower women to represent themselves in court, and pays special attention to teaching the women how to file court papers, handle responses from the opponent, comply with courtroom procedures, cross examine the opponent, present an opening statement and prepare submissions to name a few. Many of these organizations are based in urban centres such as Nairobi, Mombasa and Kisumu, but considering most Kenyans living outside urban centers, tend to be the poorest and most disenfranchised, they are more likely to go without any type of legal council. Currently, legal aid benefits those who are closer to urban areas.
Agumba’s work in Kibera has led him to believe that: “Most people don’t want to appear in court, they are ashamed of being summoned for crimes [which] in some cases they did not commit. In my opinion, the court should also adopt traditional dispute resolution mechanisms.” This solution would help ease the backlog in Kenyan courts, which are notorious for being delayed in court proceedings and of course overcrowding of prisons, because many cannot afford bail.
The Legal Aid Bill 2013 approves the other forms of conflict resolution other than the ones in court. The objects and purposes of this Act are to establish a legal and institutional framework to facilitate promoting alternative dispute resolution methods that enhance access to justice and in line with the Constitution of Kenya. This is certainly a step in the right direction given that the responsibility of ensuring citizens have access to a fair trial cannot be left to various (non governmental) organizations. For those bold or helpless enough to represent themselves in court, with limited knowledge of the law, it is unlikely they will succeed in winning their case.
By Josephine Opar
