Legal representation in criminal cases is purely, dependant on an individual’s financial ability, the sad reality being that most cases are finalized without a lawyer appearing for the accused.
It has long been acknowledged that there can be no equal justice where the kind of trial a man gets depends on the money he has. Justice for the poor and the rich, the weak and the powerful alike is an age-old dilemma, and undoubtedly the rich and those with unlimited resources inevitably are accustomed to a different brand of justice.
The recent acquittal of Kamlesh Pattni of the Goldenberg fame perhaps exemplifies the fact that being rich and able to surmount the financial burden of criminal litigation for decades is a definite advantage.
Means-tested
The poor and underprivileged, and perhaps the uneducated, on the other hand, are left to defend themselves in all cases other than murder cases where there is an ill-organised and arbitrary legal scheme based on colonial laws where murder accused by practice, and not law, are defended by lawyers paid an honorarium by the State.
The constitution provides that an Advocate must be assigned to an accused perhaps by the state at the state expenses if substantial injustice would otherwise result and to be informed of this right promptly.
Even after over two and-a-half years the state has not set up the mechanisms, methods or law for providing legal aid.
Kenyan parliamentarians and law enforcing agencies have all opted for laws imposing long and mandatory imprisonment sentences. Two examples are the Sexual Offences
Act of 2006 and the recent amendments to the Traffic Act where offences attract long imprisonment terms.
Offenders are daily being sent to jail for up to twenty years and in some cases to forty years and sitting in the court seeing accused being sentenced virtually for a life time without legal representation is a painful exercise.
The long sentences are hardly proving a deterrent and some of the accused are totally oblivious of the consequences of the grave charges they face.
If the Constitution is strictly to be applied each accused must be provided a lawyer, but when will this constitutional provision be implemented and become a reality?
From a cadre of over 10,000 lawyers in Kenya, it is not asking too much if a scheme is initiated by the Attorney- General, the DPP and the Law Society to provide legal representation in all criminal cases all over the country.
At the moment the financial ramifications are immense and possibly the country cannot afford it.
All this augurs for a voluntary legal service.
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Should lawyers, from the newly enrolled to the experienced ones, say, defend in a year five accused and the Law Society makes this a mandatory provision on pro bono basis or on subsidised basis.
In many countries there exist Community Legal Services based on individual capacity to afford a lawyer the criteria being a means and merit test.
The means test is set at a low level – those with very low income and little capital are entitled to full Community Legal Service assistance while those who are better off are required to contribute towards representation.
Factors to be considered in relation to the merits test include the financial benefit to the accused of providing the service in question and the likely cost to the Community Service and the public interest.
Legal aid in some cases is given not as s gift but as a loan repayable by the Accused. In some countries legal aid schemes have been fairly successful.
Telephone advice
All solicitors providing publicly-funded criminal legal services in England and Wales must hold a General Criminal Contract and a Specialist Quality mark.
All the services provided are subject to some form of merits test, though many of them are not means-tested.
In addition, the Criminal Defence Service is responsible for organising duty solicitor schemes in police stations and magistrates’ courts. These schemes provide free help, offering telephone advice in connection with less serious offences, and face-to-face assistance with more serious matters.
To a limited extent, the Criminal Defense Service is also able to provide legal services through lawyers it employs itself. This is known as the Public Defender Service.
The maze of recent legal enactments at an unprecedented and unfathomed pace expose many a Kenyan to grave consequences without them realising the consequences of breaching the law.
Worthwhile aid
Ignorance of law is of course not a defence but in a country where abject poverty and crime can hardly be segregated, legal aid becomes not a luxury but a necessity and the very basis of human rights and dignity of a Kenyan depends upon getting sound and worthwhile legal aid at the right moment by law.
If legal aid cannot be given on all cases, those concerned in the Criminal Justice System – DPP, A.G, the Law Society, the Prison Authorities and even the Magistrates and Judges must collectively campaign for legal aid in all capital cases in all courts (and not only the High Court) and in all cases where minimum imprisonment sentences are provided by law.
The writer is a lawyer.
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