Achieving Article 48; Improving Access to Justice for the Poor

  

Date Posted: 11/25/2012 1:05:22 AM

Posted By: macawear88  Membership Level: Silver  Total Points: 163

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Introduction

Access to justice is a very important judicial element. It is through access to justice that remedies can be availed to the people. Kenya enjoys the adversarial judicial system where the court plays a passive role and it is squarely upon the aggrieved party to bring forth a complaint in order to get a court order.

The judicial system is supplemented by the services of other institutions in order to efficiently play its role of delivery of justice. In Kenya, most people live below the poverty line. Apart from that, there is a notion among the economically challenged that justice is an unachievable for the poor.
This essay seeks to discuss in cursorily the barricades to enjoyment of the right of access to justice. Furthermore, the paper comes up with a number of proposals on how to improve the access to justice especially to the poor people.

The concept of access to justice
The concept of justice is quite broad. However, the underlying factor is equity and fairness. Access to justice in simple terms means making it possible for everyone to be able seek remedy from the judicial system.

Factors hindering access to justice
The cost of suits is a problem to poor people. While the constitution by virtue of Article 22 (3) c does away with court fees in relation to the enforcement of human rights, there are other costs that have not been contemplated by the same for instance, the cost in terms of time taken to successfully complete a hearing. There are other miscellaneous costs such as preparations of affidavit and other pleadings. In civil suits a party is normally doomed when he/she lacks legal representation. This stems from the fact that pleading have to be written in a specific way and filed in a specified which is an uphill task for a

person without legal knowledge.

Corruption and unethical practices also drags behind the quest to access justice. In Kenya, there have been efforts to weed put the corrupt judges. While this is laudable, it should be extended to other judicial officers such as clerks and registrars. Legal technicalities and like problems is an impediment to justice access by the poor people. This is especially rampant in criminal cases. Some of the technicalities are by design. Corruption itself is an impediment to accessing human rights.
Lack of awareness is another factor affecting the access to justice. It is quite important to note that many poor people know their rights. However, the problem is that people do not know how to enforce these rights.

The lack of harmony between different state agencies is another problem in accessing justice. In criminal matters the police are involved in the investigation process. There is a gap in terms of functionality between the different state agencies. For instance, investigation officers are sometimes transferred from one police station to another without notifying the prosecution. This leads to stalling in terms of the proceedings of a case.

Improving the access to justice
Reviewing the adversarial system is an important way of helping poor people access justice. A short visit to the courts normally gives a picture of very timid remandees who are even afraid to raise any issue regarding the rights infringement. As an adversarial system the court is laid back and it is upon the suspect to bring to the attention of the court any issue. In most cases, the poor are normally timid and fail to raise issues that would otherwise help them access justice. The judiciary should play an active role in determining issues which would otherwise not be revealed because of the timidity of the accused. The prosecution should also play a justice seeking role. The role of prosecution, contrary to most popular opinion is not to secure a conviction of the accused but rather to uncover the truth.
Demystifying the myth that the courts only serve the rich is an important step towards restoring the confidence of poor people in the judiciary. The restoration of such confidence is the first step towards encouraging the citizens to seek redress from the judicial system.

The constitutional means of seeking justice form the courts can only be potent is the public is fully aware of their rights and freedoms. While many poor people know their rights and freedoms, the same continue to suffer infringement as they do not know how to enforce these rights. The problem is further heightened when the violators are custodians of the same rights.

Incorporation of the traditional and community based mechanisms of dispute resolution methods is an important step in bringing justice to the people. This is especially viable in the rural areas where traditional structures are still intact. However, there is need for training the village elders. This is premised upon the fact that these tradition based dispute resolution systems are based upon tradition and customs some of which are repugnant to natural justice.

The role of public participation is important. The call is for every public member to become a brother’s keeper and an ombudsman of the society. Public participation is also important. The civic organization need to step up and bring their services to the people and not wait for people to come for them.
The need for awareness is very important towards accessing justice. It is quite obvious that very few citizens take time to fully read and understand the Kenyan laws. As a result, this opens floodgates for the infringement of rights and freedoms that have been guaranteed by the laws. To increase awareness there is need for stepping up the civic education through media. Research shows that most young people in the urban areas read from the social media as compared to any other source. Some organizations that give civic education have partnered with radio stations and conduct these lessons on civic education on air. This is a great means of passing messages across especially to the illiterate people.

Conclusion
The current judicial system being adversarial is one which the courts are laid back and it is for the people to spring to action. In fact a cliché goes “If you sleep on your right, your right will slip away from you.” This approach is inhibiting the access to justice by poor people.
There is also a great for the prosecution organ to liaise with the investigation organ in order to create preparedness in the litigation process. Civic education is equally important. This shall help people know their rights and how to enforce them. Access to justice can be improved by the vigilance of different state players involved as well as vigilance of the public members.

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