Date Posted: 10/11/2011 12:14:28 AM
Posted By: luyali Membership Level: Silver Total Points: 120
Legal Aid in Kenya1.1. AbstractIt is the duty of the state to ensure that every individual enjoys his or her right to justice and this includes provision of legal aid services to those who are likely to suffer if is not provided for them. However, the provision of legal aid can be a very expensive undertaking and it is for this reason that the scope of legal aid in criminal cases in Kenya is very narrow. This is very devastating for the poor who are charged with criminal offences and who do not qualify for legal aid and are thus left on their own.As may be well known, there is no requirement that all cases must be represented by lawyers. But in a great many cases, some party may be represented while the other is not. Even though we know that justice is blind to the material status of the litigants before it, we should restore its sight to the plight of litigants without legal representation. Perhaps if we did that, we may enlarge the Legal aid Scheme and provide legal services to all litigants. Only this way, we may be able to empower litigants to enjoy their rights as enshrined in the constitution and other enactments .Legal aid broadly includes legal advice, assistance, representation, education and mechanisms for alternative dispute resolution. It also includes a wide range of stakeholders, such as nongovernmental organizations, professional bodies and academic institutions Legal aid broadly includes legal advice, assistance, representation, education and mechanisms for alternative dispute resolution. This paper addresses the place of legal aid awareness under the provisions of the constitution of Kenya 2010 and its implications. It also evaluates the position of legal aid organizations like Moi University. Add.I.2. IntroductionUnderlying our constitutional system is the idea of the rule of law which entails formal equality and equal treatment before the law. This provision however may only exist in theory but not in reality, on paper but not on the ground. This is because social factors like poverty may hamper with such rights. In order to curb this problem, legal aid and related legal empowerment efforts constitute the most important part of legal reform of not only the laws but also formal and informal legal systems because they are necessary for making rights a reality in the lives of the poor. Legal aid is often looked at as a system by which a legal system facilitates equality of access to the justice system through the provision of legal services in serious legal matters to those who would not otherwise be able to finance them solely from their own sources . It also facilitates fair hearing so that all parties seeking justice may get convinced that justice has been done but it has also manifestedly and undoubtedly been seen to have been done.The Constitution of Kenya recognizes the fact that there should be justice to all, by providing that the State shall ensure access to justice for all persons and, that if any fee is required, it shall be reasonable and shall not impede access to justice. The constitution further enshrines the need for legal aid by requiring that an accused should be assigned an advocate by the state and at state expense, if substantial injustices would otherwise result, and to be informed of this right promptly. The leading case of Marbury v Madison declared an important position on civil liberty that entrenches the right to legal aid. It stated that the very essence of civil liberty certainly consists in the right of every individual to claim protection of the law.Kenya is also a signatory to several treaties that guarantee legal aid to Kenyans. They include The International Covenant on Civil and Political Rights which provides guarantees to persons facing a criminal charge including the right of counsel at trial and if he or she is unable to pay for counsel to have it available without a charge. Similarly, the guarantees are provided under the UN Convention on the rights of the child and the UN Declaration of Human Rights. in regard to these international instruments, the Constitution of Kenya recognizes their importance in trying to achieve universal standards in access to justice. 1.3. The Need and Justification for Legal Aid in KenyaJustice as a phenomenon has five major tasks which include, to justly allocate advantages and disadvantages, to prevent abuse of power, to prevent abuse of liberty, to justly decide disputes and to justly adapt to change .For poor people who do not have money to pay court fees or hire a legal expert to advise and represent them, the right to subsidized legal services is the most fundamental of all rights. The charter of rights and freedoms guaranteeing the right to life and liberty, freedom of speech or equality before the law can be safeguarded if one can defend oneself against unjust accusations or treatment. When people who are not experts talk about legal aid in criminal cases, they often express little sympathy for those who are accused of wrongdoing. After all, many people say, most of them are probably guilty anyway, and people who commit crimes especially violent ones get off too lightly. If it were not for legal aid, some people fell, more criminals would be punished and society would be a safer place. The quickest change in attitude towards legal representation happens when it is you or someone close to you is suspected of a criminal act. One the realizes that it is all but the most minor criminal cases can be very complex, and that the police and court environments are so intimidating to non-initiated people that even intelligent, well-informed suspects who face criminal charges without the help of a lawyer can be found guilty of something they did not do. In most criminal prosecutions, the accused are poor, they have limited schooling, and little or no idea what is going on.The main reason why representation by a lawyer is almost always essential in criminal cases is that the criminal justice system is an adversarial one. The role of the prosecutor, who is backed by the considerable resources of the police, is to represent the evidence which will establish the guilt of the accused. Once the evidence has been presented, it is up to the defense either to offer contradictory evidence or to argue that the prosecution’s case is insufficient. The judge and jury are neutral arbiters who weigh the evidence put before them but do not investigate the facts themselves.Because unrestricted state power can easily become a weapon of oppression, and because our society believes that it is better to let some criminals go free rather than convict an innocent person, hundreds of rules have been developed over centuries to protect the rights of an accused person. For example, confession obtained by beating suspects are not admissible, some proof of criminal intent is required in many cases, and there must be a minimum amount of evidence of guilt to sustain a conviction. The fact that these rules are enormously complex, and require that the accused persons assert their rights at every stage of the proceedings and make many important strategic choices led the U.S Supreme court to declare in the 1950’s that:Reason and reflection require us to recognize that in our adversary system of criminal justice, and person hauled into court, who is too poor to hire a lawyer, cannot be assured a fair trial unless counsel is provided for him.
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