BY PRAVIN BOWRY
The Attorney-General has published the Legal Aid Bill, 2013 which if enacted will make legal aid a reality as envisaged under Articles 48 and Article 50 (2) (g) of the Constitution of Kenya.
In many commonwealth countries, legal aid is the means by which citizens who cannot afford their own lawyers are enabled to have access to legal services paid for by the state agencies.
Presently, legal aid in Kenya is only accorded to those accused of the offence of murder and those unable to afford their own lawyers are assigned lawyers by the Registrar of the High Court in what is termed as ‘pauper briefs’ on a voluntary basis.
Lawyers are paid an honorarium by age-old colonial practice and not by law. Ironically and interestingly, those charged with other offences attracting the sentence of death, such as cases of robbery with violence, do not get any form of legal representation.
Dispute resolution
In civil cases, too, there is a little-invoked rule in the Civil Procedure Act where an impecunious litigant may, on application to the court, be assigned a lawyer.
The proposed changes need to be examined microscopically not only by lawyers but also other stake-holders and a frank and open debate is deserving to prod the pros and cons of the varied provisions of the proposed Legal Aid Bill. In summary, the Bill proposes the National Legal Aid Service, the Legal Aid Fund, and the process of granting review of the decision on the application for, and withdrawal of legal aid. There is also the accreditation of legal aid providers, including assisting paralegals and intermediary agencies.
The Service will establish and administer a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable. Besides, it will encourage and facilitate alternative dispute resolution. The Service will also promote public legal literacy and awareness.
The Fund will be managed by the Service. It will be applied for securing the representation of persons granted legal aid, remuneration of legal aid providers, meeting expenses incurred by legal aid providers, and the expenses and operations of the Service.
The Bill lays down a two-pronged eligibility criterion for legal aid. In order to be eligible, an individual must satisfy both a means test and a merits test. To satisfy the means test, the individual must be an indigent person — one who does not have sufficient means to enable him or her to obtain legal assistance. Factors to be considered in relation to the merits test include the potential benefit to the individual getting the aid and the likely cost of funding it, the prospects of any legal action being successful, and the public interest. If a legally-aided person is successful in winning monetary compensation, they are generally required to pay back the financial assistance they have received. A common misconception is that legal aid is always in the nature of a gift; often, it is a loan.
An application for legal aid can be made to the Service by the applicant in person, or by an authorised representative of the applicant. If aggrieved by the decision of the Service on the application for grant of legal aid, the applicant can apply to the Service for a review of the decision. If dissatisfied with the decision on the application for review, the applicant can appeal to the High Court.
Advocates in law firms, non-governmental organisations, faith-based organisations, universities and other institutions in the justice systems running legal aid clinics with the assistance of paralegals may be accredited by the Service, upon application, to provide legal aid.
This will add to the efforts already made by non-governmental organisations like Kituo cha Sheria and the Kenya National Human Rights Commission. The point is to maximise the reach to the masses by utilising as many people with legal knowledge as possible.
The Service will prepare and publish in the Kenya Gazette, at least once in every two years, a Legal Aid Guide detailing, in simple language, relevant legislation, regulations, policies, directives, and legal aid services available. Though the Bill is a step in the right direction, it would have done better to propose a devolved County Legal Aid Service in each of the 47 counties so as to reach the rural poor. The centralized National Legal Aid Service is likely to benefit only the urban poor.
A voluntary Law Society scheme to give legal aid, too, should be considered with over 6,000 law society members giving back something to the society. Also the retired, inactive and in-house lawyers should be incorporated into the scheme.
The total absence of the part the judiciary should play in recommending legal aid is a little surprising. Should the courts not order in deserving cases an accused to get aid?
Most unfortunately, it is important to point out that the Bill as published is tantamount to a national disgrace in the law making process and a total overhaul is called for.
There are massive blunders of form and grammar in the Bill, with arrangement of clauses, clause numbers and marginal notes in total disarray, rendering the publication of the Bill a mockery- the cut and paste syndrome tragically pointing at the learned Attorney-General.
The writer is a lawyer.
bowryp@hotmail.com
