KENYA AT 52; THE RIGHT TO BE INFORMED.
Access to Justice / ArticlesMay 25, 20150 CommentsKituo Cha Sheria
I recall attending a legal aid clinic in Kiandutu slums at Kiandutu Primary School along the Thika-Garissa Highway on 20th March 2014. The clinic was a brain child of a public interest team of students from Kenyatta University School of Law and AFCIC (Action for Children in Conflict), an organization that sponsors the slum kids through their schooling. I went there in my capacity as a lawyer from Kituo Cha Sheria representing the executive director. Among the most memorable interviews with clients I can remember one stands out as reasonably peculiar but informatively mind boggling. A lady from the local area, Kiandutu slum, walked up to our tent for legal advice at around 2pm. She looked deeply troubled and physically beaten down by her environment and poor diet. In my mind I thought, “Good Lord, life can be tough in the slums.” Despite this, she had managed to find presumably her best piece of tattered dress to come meet these lawyers from the city. Listening to her revealed more troubling stories of ignorance and illiteracy that far exceeded her dilapidated appearance. She spoke of a daughter, her daughter, who had been killed by the husband, a resident in the slum, after a matrimonial dispute. The death was not reported as the ‘good chief’ intervened and resolved the matter out of court; by officiating in the making of a verbal contract for compensation to the lady for wrongful death of her daughter. As is the nature of such agreements, the accused perpetrator of the crime possibly entertained the local chief in one of the late night drinking dens in the slums and the agreement was forgotten. For the mother; she counted the loss of a daughter and any possible monetary compensation to wipe her tears away. At least that’s what a suit for compensation for causing wrongful death is meant to achieve at the very least. The issue however was explaining to my client that despite her entering into a void contract from the very beginning she could also face arrest for not reporting a death and conducting the burial without a burial permit.
The above brief story reflects among the many encounters and challenges legal aid providers face. Taking the above example, the crime went unreported and the killer walked free. The authorities were informed, the chief, they did nothing. The gravity of their actions was possibly incomprehensible to them. As our founding fathers stated, “God bless this country that we may eradicate it from IGNORANCE, POVERTY and DISEASE.” It is no surprise that ignorance ranks first among the other upheavals this country aspired to eradicate in 1963. To date, the struggle continues as most of our people are still illiterate. This is the greatest challenge we find with alternative dispute resolution mechanisms and community justice systems. It is our contention that majority of Kenyans are still ill informed of the law. It is a fact that attending school in itself does not guarantee an individual the ability to state they are legally knowledgeable. Most people in Kenya more specifically, outside the capital, Nairobi; interact with the law on utmost necessity. This cannot be solely blamed on the lack of desire but rather the inability to understand the law and where to look for the law. Simply put, not everyone is a lawyer in this country yet the dynamics and operation of a state, nation or society demands that everyone must have a lawyer to interact with the society.
In summary what are we saying? It is our submission that ignorance is the biggest challenge that faces access to justice. Provision of legal information is the first step to curing this problem.
The next challenge lies with the diversity of our people and the large distances between these people. Kenya covers approximately 582, 650km2. Kenya’s road network has been established to be 160,886 km long. About 61,936km of these roads is classified while the remaining 98,950km are not classified. Of the classified roads, the paved road network has expanded from 2000 km in 1963 to 11,189 km in the year 2009. Marginalized communities are not in a position to access legal services. Even when they do, they end up in the wrong dispute resolution forums. The Honourable Chief Justice Willy Mutunga has among his greatest achievements during his administration increased the judicial infrastructure. There are more court rooms than there were during Rtd. Chief Justice Evans Gicheru’s time. The distances between these courts and their users are still undesirable as the distances covered to access courts outside Nairobi City County are still vast.
To promote equal access to justice is a clearly spelt out principle in the Judiciary’s motto. In 2012- 2013 period of review the Judiciary increased the number of mobile courts from five to 20. With an aim to reducing distances to court through innovative approaches such as buying boats to serve Mfangano and Rusinga Islands in Homa Bay County and Lamu in Lamu County the Judiciary clearly understands that there is a need to provide legal services in marginalized areas.
The Chief Justice in November and December 2012 visited Isiolo, Marsabit, Moyale in the former Eastern Province and Lodwar, Kakuma, Lokitaung and Lokichar in Turkana County. Areas in Kenya’s former Northern Frontier Districts – Mandera, Wajir, Garissa, Moyale, Marsabit, Isiolo and Turkana – have remained on the margins of administrative, infrastructural and judicial service delivery. In recognition of the marginal status of Kenyans living in these areas, a special consideration was made in planning to accelerate the construction of permanent courts with a stable presence of judicial officers, staff and resources. With the support of the United Nations High Commissioner for Refugees, the Judiciary established a court station in Kakuma and posted staff. A new High Court is being constructed in Lodwar.
Suppose this entire infrastructure is created, it is not automatic that other court users such as advocates will easily be accessible to these courts. The roads to reach these places may contribute heavily to the legal costs of procuring the services of an advocate. Most people in these areas cannot even afford a pro bono lawyer as they may even lack the required court fees to file the case. How would someone know that there exists provision for pauper briefs in the courts if they cannot access a lawyer? It is imperative that different players to access to justice work together otherwise we will have empty court rooms in these marginalized areas upon planned completion of the courts.
Marginalized areas need to be empowered through provision of legal information. The most efficient and common way of delivering this information can be through the mobile phone network. It is the most probable and economically sufficient method capable of helping the people grow an interest in knowing laws that govern this country and in the end they can get a sense of belonging to a state that has laws and order. It is the only way Article 35 of the Constitution of Kenya can be brought to life and be beneficial to the citizens.
LAED- Kituo Cha Sheria.
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