Are the poor in Kenya getting short-changed when it comes to delivery of justice? Apparently, the answer is Yes.
According to Chief Justice David Maraga, the prohibitively high cost of justice in Kenya has made it impossible for poor citizens to access legal redress, subsequently making access to justice a preserve of the rich.
And this, the CJ notes, is despite the fact that Article 48 of the Constitution mandates the State to ensure that all citizens access justice without impediments.
“Article 48 of the Constitution states that the ‘State shall ensure access to justice for all persons and, if any fee is required, it shall be reasonable and shall not impede access to justice’ and making further provision for it in at least 11 other Articles. Article 159 (2) (d) provides that ‘justice shall be administered without undue regard to technicalities”, said Maraga.
He, however, noted that the high cost of legal advice and representation remains the major obstacle in accessing justice for the poor…”constituting massive economic violence on families punished for their destitution.”
The CJ said many poor litigants involved in affirmative claims, suits on job discrimination, suits to recover wages, and suits to protect occupational rights require legal assistance associated with criminal courts. Maraga who was speaking during the 9th Annual Development Conference at Harvard University indicated that access to justice in Kenya is made more complex by poverty, complexity of rules and procedure.
His address was on the role that justice, good governance and rule of law plays in efforts to eliminate poverty and attain inclusive development. “Use of legalese, lack of effective remedies, and a backlog of cases also delays justice. These impediments prevent people from realising their full potential in society,” he said.
But its not all gloom and doom for the CJ said there are measures in place to ease the cost of justice, notably with the recent enactment of The Legal Aid Act, 2016 which provide legal aid to needy litigants and the Small Claims Court Act, 2016 which provides speedy determination of claims not exceeding Sh200,000.
Maraga highlighted the launch of Programme for Legal Empowerment and Aid Delivery in Kenya to promote access to justice in marginalised communities in Kenya which will also support the newly established Legal Aid Service Board.
He also termed development problem in Africa as political, noting that authoritarianism, corruption and state capture by the political and economic elites remain dominant features of most governance systems.
The CJ said in Kenya, the Auditor General reports that the country loses a third of its national budget to corruption. “Corruption corrodes the fabric of society and undermines people’s trust in political and economic systems, institutions and leaders,” he said but added that Kenya signified its commitment in the fight against corruption by becoming the first country in the world to ratify the UN Convention Against Corruption in December 2003 in Merida, Mexico.