PROMOTING ACCESS TO JUSTICE IN KENYA: MAKING THE CASE FOR LAW CLINICS

0
1661

By: Emmah Senge Wabuke, Arnold Nciko and Abdullahi Abdirahman*

The Kenyan Constitution was designed to meet multiple ambitions, including guaranteeing the citizenry their right to access to justice.1 Access to justice, put simply, refers to the ability of people to seek and obtain a legal remedy through institutions of justice, and in conformity with human rights standards. However, many Kenyans, especially from underserved communities, lack the legal capacity to enjoy their constitutional right of access to justice. This may be due to financial constraints, and the evident complexity in the law, both in terms of procedure and substance. All these have had the overall effect of creating a lacuna in the practice of access to justicein Kenya.

This article argues that law clinics have the potential to fill this lacuna through street law programmes whose aim is to broaden and disseminate legal awareness in a form adaptable to the layperson. To this end, the authors shall first look at the status of legal aid in the country before detailing the structure of an existing law clinic in Kenya, the Strathmore Law Clinic. It will then conclude by highlighting challenges and opportunities for law clinics in Kenya.

LEGAL AID IN KENYA

Legal aid received a short-lived constitutional boost when the Draft Constitution, colloquially knows as Bomas Draft, established the office of the public defender. The mandate of this office was to ‘provide legal advice and representation to persons who were unable to afford legal services’. Regrettably, this office was later eliminated by the Committee of Experts.

Notwithstanding this, with the express recognition of the constitutional right to access justice, the Kenyan Parliament enacted the 2016 Legal Aid Act. The assent of this law was a conclusion of a dozen years of consultations between civil society and government agencies on the legal and institutional framework for the administration of legal aid in Kenya in conformity with the States’ obligations under the 2010 Constitution as well as international human right instruments. This Act is guided by fundamental values and principles of access to justice, equality before the law, inclusiveness and non-discrimination, in line. Moreover, the said Act provides that legal aid is not limited only to criminal cases, but also includes civil and constitutional cases.

The Legal Aid Act also establishes the National Legal Aid Service, which is mandated with administering a national legal aid scheme that is affordable and accessible; promoting research in the field of access to justice as well as public interest litigation.

Even with this robust framework, it is of relevance to note that many reforms given in the Legal Aid Act only exist on paper. In a roundtable discussion on the role of law students in promoting access to justice in Kenya, organised by the Strathmore Law Clinic, it was found that the offices that the Act has established have not been made operational. Law clinics, in our view, are a key cog in the operationalization of this law in Kenya as detailed below.

ROLE OF LAW CLINICS IN PROMOTING ACCESS TO JUSTICE

Kenya has approximatively eight thousand lawyers, serving over fifty million people. It is not surprising, therefore, that many people, especially from underserved communities, lack legal capability in respect of knowing the law and taking legal action. As a result, their right of access to justice has remained elusive.

Taking into account this reality, the role of law clinics cannot be overlooked. In particular, law clinics’ viability in guaranteeing access to justice in Kenya is perhaps best sourced from the street law programme. The said street law programme is an effective mechanism of fighting ignorance of the law. Many people are unaware of their rights and obligations before the law because today’s laws have multiplied to a worryingly large extent and the language in which they are written is beyond laypeople’s understanding, especially when they are from underserved communities. Furthermore, many a times, a solution to a legal issue is to be found in a cluster of interrelated, reinforcing and complex pieces of legislations.

To remedy this situation, through the street law programme, law students or clinicians promote and expand legal awareness by devising ways in which they can let laypeople have, in a simplified language, a general understanding of their rights and obligations before the law through interactive methods of teaching designed for and adapted to specially selected audiences of laypeople. For instance, if we, the clinicians, are to take remandees as our selected audience, then we will know that in the multitude of laws our attention should mainly be drawn to criminal procedure as this is the area of the law that the most affect remandees.

In this vein, to let them know of their rights and obligations, we will have to first get an in-depth understanding of the criminal procedure code, the penal code and other relevant materials. After gaining this knowledge, we will have to narrow it down into a general understanding of their rights and obligations before the law. Finally, such general understanding will have to be imparted to remandees through the use of interactive methods of teaching such as debates, mock trials, storytelling and other scenarios that are relevant to remandees and fit their day-to-day life.

It is also instructive to note that the street law programme has contributed to the expansion and dissemination of legal awareness because it is driven by a training-the-trainer philosophy. This entails training people who are in a position of leadership maybe in schools, youth organisations, Non-Governmental Organisations (NGO’s) and other institutions on how to apply interactive methods of teaching the law to their respective members.

Clinicians have also been able to promote access to justice through strategic litigation. This concept requires clinicians to meticulously analyze an aggrieved person’s case in such a way as a diligent pro bono lawyer, presented with the same case, would have done. To do this, clinicians embark on the collection of evidence, witness testimonies, and researching on any factor akin to the case that they are dealing with. Strategic litigation is particularly relevant to the promotion of access to justice since it helps fill the gap that many a times exists between a pro bono lawyer, willing to help, and an aggrieved person, especially from an underserved community, who has been unable to reach out to the pro bono lawyer or who did not know of the existence of such a ‘Samaritan’ lawyer in the first place.

At this point, one cannot help but admit that the street law programme and strategic litigation clearly evidence that law clinics would play a critical role in the expansion of the scope of access to justice in Kenya. It is also instructive to note that law clinics have afforded law students professionally relevant skills that they could not have otherwise gained from classrooms. These skills have, in significant ways, raised their chances of employability in the legal industry. This is mainly because through the street law programme and strategic litigation, clinicians are afforded a chance to relate to a human being and not a fictional party. This inculcates in them a sense of responsibility that propels them to give each individual case their level best. Furthermore, they get a deep understanding of the social context in which legal issues arise, and in this way, when they write reports, notes, articles, and case and legislative commentaries, among others, it is to issue a clarion call for reform in certain areas of the law.

THE STRATHMORE LAW CLINIC: STREET LAW PROGRAM IN ACTION

The Strathmore Law Clinic is a student run organisation which has embarked, just as it is the tradition with law clinics of repute, on the street law programme and strategic litigation in order to inculcate in Strathmore law students a spirit of promoting social justice. It has within its ranks 50 law students, who are constantly developing into social justice warriors.

The Clinic’s foundational structure was laid down by Emmah Senge Wabuke. She was motivated by the fact that although the number of lawyers in the country seems to be on the rise, only a few of them are committed to public service. As a result, many Kenyans, especially from underserved communities, remained unattended to as far as access to justice is concerned.

The Clinic emphasizes on three main goals: legal awareness, policy and advocacy and strategic litigation. To this end, the Clinic is divided into three: The Human Rights Unit, the Criminal Justice Unit and the Entrepreneurship Unit.

The Human Rights Unit

The Human Rights Unit is involved in several street law programmes, targeting residents in informal settlements in Nairobi. As a collaborative effort between the Clinic and CrimeSiPoa, an NGO, this Unit has previously offered through interactive methods of teaching training sessions to residents in Gatwekera, Kibera on the rights of arrested persons.

The Clinic, together with a community-based organization, CrimeSiPoa also conducted a town-hall meeting with residents of Kibera, representatives of the Kenya Police, the Independent Police Oversight Authority, the office of the Director of Public Prosecutions and the office of the Attorney General. This meeting was themed ‘Fostering Cohesion between Law Enforcement and the Citizenry’ and provided an avenue where residents were able to air their grievances directly to the police while receiving legal advice.

In 2018-2019 calendar year, the Human Rights Unit seeks to embark on street law programmes by focusing also on ‘form 4’ students, still through the use of interactive methods of teaching because most of them are turning 18 years old and may, therefore, be held liable with respect of, for instance, rape, or the use and possession of drugs; yet, they might not have known of what really defines rape and whether the use and the possession of drugs was a serious criminal offense in the first place.

The Human Rights Unit has also come to the realization that many of the Strathmore University students do not know of the University regulations despite having a student handbook that is to guide them in this regard. For this reason, it came up with a programme known as ‘street law on campus’ whereby clinicians bring to their fellow students’ attention the more unsuspecting yet obscure university regulations (an example of this is being caught with a phone in an exam room, even if you did not use it, amounts to a year suspension) during 1st years’ orientation period and some weeks to an examinations’ period.

The Human Rights Clinic intends to help people from underserved communities to take legal action whenever their rights are threatened. Among them include slum dwellers, Strathmore University culinary staff, cleaners, guards and fashion cops. Still in this spirit, the unit has plans in place to help a Strathmore University student who is to face the Strathmore University Students Disciplinary Board to come up with a proper case theory and/or to be convincing in his or her letter of appeal. The rationale behind this initiative is that many non-law students, and even some law students, have not yet developed the skill of defending themselves in clear and concise terms. It is the unit’s hope that one day the university will allow clinicians to provide legal representation to their fellow students before this board and in this vein to hone even our lawyering skills.

The Human Rights Unit also places an emphasis reforming some laws and policies in the country. The rationale behind this initiative is to document human rights violations. It is in this vein that it drafts an article to be published in a national newspaper or the Strathmore Law School website at the end of each project. Further, it will be doing the same to give its opinion, informed by research and analysis, on a particular human rights issue. For example, Human Rights Clinicians are now working on an article to be published in the upcoming volume of the Strathmore Law Review on how socioeconomic rights can be properly enforced in Kenya if structural interdicts are not part of the Kenyan jurisprudence. Socioeconomic rights require a State’s responsiveness. In other jurisdictions, such responsiveness is achieved through structural interdicts which entitle a court to, among other things, give the executive an order to put in place policies and plans susceptible to promote a particular socioeconomic right such as one’s right to food. However, the position in Kenya is that structural interdicts infringe on the principle of the separation of powers because, traditionally, a court cannot interfere with policymaking.

The Criminal Justice Unit

Faithful to the promotion of a training-the-trainer philosophy, criminal justice clinicians on two occasions over the last year trained paralegals who are under a training programme of the Africa Prisons’ Project. The aim of the session was to impart to the trainees a clear practical and theoretical understanding of criminal procedure as well as rules of evidence. The focus was on bail, bond, pleas, trial processes and rules of evidence. To impart the same to inmates, there was a trial simulation by clinicians and inmates that took place on the last day of the session.

The Criminal Justice Unit has also commemorated the World Day against the Death Penalty at the Kamiti Maximum Prison. This event involved various parties including the NGO’s International Commission of Jurists as well as the African Prisons Project. Clinicians presented papers questioning the law governing the death penalty in the country. To involve the inmates and other participants, this was followed by a round-table discussion. The aim was to issue a clarion call for reform as far as the death penalty is concerned. This is just but some of the activities that clinicians have embarked on at the Kamiti Maximum Prisons; they have also done moot courts competitions which have been instructive to both the inmates and the clinicians.

The Entrepreneurship Unit

The entrepreneurship unit intends to impart to startups a general knowledge of copyright law, patent and trademark issues, web domain names, electronic commerce law, data protection law, etc. to allow them to align their businesses with the law.

CHALLENGES AND OPPORTUNITIES

The Strathmore Law Clinic in its quest to promote access to justice has faced numerous challenges in the execution of this mandate.

First is the question of funding. Identifying sources of funding for our projects has proved arduous, resulting in limitations as to the scale of the projects that we can execute.

Moreover, project management and execution require key practical skills, viz, from the proposal stage, to securing partnerships to eventual execution. For many law students, the project development framework is a learning experience fraught with challenges owing to our inexperience. The skill gap, albeit not a fatal challenge, can result in inefficiencies when executing projects.

Partnerships with likeminded organisations is essential for the achievement of our goals and bridging the gaps of funding and capacity building. Only by way of partnerships shall we extend our outreach and have positive impact on many peoples’ lives. For instance, Strathmore Law Clinic hosted a roundtable discussion on the role of law students in advancing access to justice alongside law clinics from other law schools, civil society as well as pro bono advocates.

An important takeaway was the realisation of the potential of law students in promoting access to justice which could only be realised in a large scale through leveraging partnerships.

These challenges, once overcome, will pave the way for further growth of law clinics in Kenya and in that way continue to promote access to justice in Kenya.

*Emmah Senge Wabuke, is Faculty Director, Strathmore Law Clinic and Lecturer, Strathmore Law School

Arnold Nciko wa Nciko is Projects Coordinator, Strathmore Law Clinic & Third Year Law Student, Strathmore Law School

Abdullahi Abdirahman is President Strathmore Law Clinic & Fourth Year Law Student, Strathmore Law School