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The Jurisprudential Basis of Traditional Justice Systems as an Enabler of Legal Aid and Access to Justice in Kenya
Get PDFThis paper examines the role of traditional justice mechanisms in enabling access justice and function of Legal Aid towards achieving access to justice to the extent that it is germane. The import of administration of justice denotes the possibility for an individual to bring a claim before a Court for adjudication, nevertheless, at its core, access to justice is premised on the ability of court users to understand the process in which they participate and to be meaningful participants in the justice system. Access to justice catered for only by means of formal justice systems suffers, since the formal systems alone cannot provide adequately for this public good. Therefore, it is not a surprise that alongside formal Court processes, the emerging issue is the place of traditional dispute resolution mechanisms in enhancing access to justice is fast gaining a reawakening. Access to justice cannot remain only an object of formal justice mechanisms. Access to justice in the narrowest sense may mean a guarantee to remedial mechanisms such as access to court or alternative dispute resolution bodies; however, this position is anomalous since the prerequisite for the so-called alternative dispute resolution presupposes a pretentious superficial substitute. Access to justice in the context of alternative dispute resolution mechanisms enables the enforcement of rights in the context of social and cultural milieu. Conversely, access to justice in the broader sense, denotes an engagement with the wider social context of the indigenous governance systems. Extant evidence demonstrates that access to justice is undermined by lack of legal literacy and in most cases indigence. The paper will explore the place of Legal Aid in promoting access to justice in its broader connotation, in all judicial and quasi-judicial fora and other fora afforded by traditional systems. This paper will examine access to justice in the context of the Constitution of Kenya 2010 and such Laws as have been enacted to undergird legal aid
Developing Alternative Pathways to Enhance Access to Justice through Incentivised Pro Bono and Legal Aid Services in Kenya
Get PDFKenya’s Constitution seeks to trigger a shift from past ethical crises, repression, and authoritarianism to a future characterised by renewed ethical values, respect for human rights and citizen emancipation. The right of access to justice as well as fair trial - in particular the right to legal representation - are two hallmarks of the transformative rights-based philosophy. The government has the positive duty to ensure that all Kenyans can access justice. However, as a defence for non-performance in meeting this obligation, the State often invokes the ‘progressive realisation of rights’ mantra. This is, in principle, an implicit concession of the lack of access to justice, calling for the development of innovative modes of ensuring that underprivileged Kenyans can enjoy the promise of the Kenyan Constitution. This study explores a new avenue to enhance pro bono legal services in Kenya, incentivised pro bono. The definition of incentivised pro bono adopted entails the use of various motivating factors that encourage duty bearers within the legal sphere to carry out legal aid. It is unique in that it uses a ‘meet me half-way approach’ and targets two key duty bearers in the legal sphere - lawyers and students. The incentives explored by this study include the use of CPD points and tax incentives for lawyers and the implementation of credit systems within law schools to encourage law students to play an active role in legal clinics
Facilitating Legal Aid Through Traditional Dispute Resolution Mechanisms: Widows Access Justice Through the Luo Council Of Elders
Get PDFThe Constitution of Kenya (CoK) enshrines a rich Bill of rights that is premised on the primary human rights principles of equality and non-discrimination. In Kenya, women remain the most affected by HIV, having a higher prevalence than men. The stigma associated with HIV has resulted in gross violations of human rights for people living with HIV (PLHIV) in general but far worse for women who already suffer social-cultural biases and violations on account of their gender and negative cultural practices. Women living in Kisumu and Homabay Counties are often subjected to the Luo cultural practice of widow inheritance which is applied in a manner that subjects them to health risks and results in gross violations of their rights including the right to human dignity1, the right to marry on the basis of free consent of the parties2, freedom and security of the person including protection from violence3 and from cruel, inhuman or degrading treatment4, the right to health5 and the right to property6 since refusal to submit to the cultural demands has usually resulted in alienation from the family with the dire consequence of losing the family land.7 For widows with children, these violations extend to their children who then suffer neglect, may not access their education and the other rights provided in the constitution8. Most of the affected women are not in a position to access their education and the other rights provided in the constitution8. Most of the affected women are not in a position to access the courts which are the main tools for facilitating access to justice in Kenya and thus are reinstated back to their homes by elders who work within the cultural structures, in this case the Luo Council of Elders. KELIN has been collaborating with the Luo Council of Elders in the sub counties of Nyakach, Seme, Muhoroni, Nyando, Suba, Rangwe, Dhiwa, Mbita, Rachuonyo and Kabondo to intervene for widows whose inheritance rights are violated. These elders have collectively facilitated access to justice for widows and orphans and restored the property rights of over seven hundred and fourteen (714) widows and orphans. The lessons from the project have guided the development of training curricula on social norms9 for the protection of women’s land rights that are currently being implemented at the regional level in collaboration with other organisations and communities in Uganda, Kenya and Tanzania with the aim of facilitating access to legal aid for vulnerable women experiencing these violations. From the lessons learnt in the implementation of this project, KELIN is one of the partners that has contributed towards the development of the current Alternative Justice Systems policy in Kenya.1
Factors influencing capacity of beach management units in implementing fisheries co-management in a tropical desert lake
No full textLake Turkana fishery consists of seven endemic and 12 commercially exploited species and is the second largest producer of freshwater fish in Kenya. It supports livelihoods of approx. 300,000 people locally. The lake is managed by beach management units (BMU) through a co-management arrangement between the government and stakeholders. Despite this, it faces management related challenges that have resulted in plummeting fish production due to uncontrolled fishing effort, increased competition among fishermen and deficient statistics to support management objectives. This study investigated institutional factors influencing BMUs’ performance by examining training and level of understanding of BMU laws and regulations, funding sources and usage and equipment ownership. A cross-sectional study was adopted and purposive sampling used to collect data from 693 respondents using questionnaires. Chi square was used to test for statistical differences at 95% significant level using MINITAB statistical software. Results showed that resource mobilization was statistically significant (x2=154.098, df=21, p=0.00) but donors (45%) contributed most funds compared to national government (21%), county government (19%) and well wishers (15%). Main revenue sources were membership registration (41%) and daily landing fees (25%). Revenue was used to purchase fishing gears (47%), supported welfare activities (18%) while significant portion (35%) was shared by members. Members’ training was statistically significant (x2=79.510, df=14, p= 0.000) but only 35% were effectively trained while 65% had contrary opinion. Members were trained on fish handling (49%), BMU laws (28%) and micro-credit (23%) but key training gaps included data collection, conflicts resolution and sea surveillance/patrols. BMUs owned equipment; however, 87% were poorly serviced while others were not available. BMU performance could be improved mainly by providing financial support (27%), capacity building (19%) and security to fishermen (17%). This study identified critical capacity factors influencing BMU operations. The factors should be enhanced by various stakeholders to support BMU performance and promote collaborative management of fisheries resources in Lake Turkana.  
Placing Access to Justice at the Centre of Legal Education in Kenya
Get PDFThis paper examines the role of legal education providers in the context of enhancing access to justice in Kenya through clinical legal education initiatives. The paper explores the significance of placing access to justice at the center of legal education. Kenya is at a critical moment where numerous challenges in accessing justice have been documented. They are among others, poor legal awareness, insufficient legal services, corruption within the justice sectors, geographical barriers, financial barriers, institutional barriers, discriminatory norms, illiteracy, and stigma. These challenges threaten the legal profession’s most fundamental legal ideals. When people lack effective representation to help with their most pressing problems, our legal system fuels alienation and inequality, and when the justice system fails those in poverty and facing inequality, violence can result. In this state of affairs, access to justice doesn’t simply make a difference; it protects lives. Therefore, this paper contends that the legal education providers have a role in preparing the next generation of lawyers the values, skills and knowledge necessary for the delivery of the constitutional promise of access to justice. This calls for the legal education providers in Kenya to place the issue of access to justice at the center of legal education with an understanding that access to justice is fundamental to establishing and maintaining the rule of law as a constitutional principle and value. This would enable Kenyans and especially the vulnerable members of the society to have their voices heard even as they exercise their legal rights. Indeed, access to justice is an indispensable factor in promoting citizens’ empowerment, in securing access to equal human dignity and in social and economic development.
There is need for legal education providers to develop strategies that would make access to justice more central in legal education. Further, it is argued that a framework that focuses on clinical legal education aligned with other people-oriented and critical skill sets are not only useful but also deemed necessary for enhancing access to justice in our country. Clinical legal education will not only provide these future lawyers with the skills necessary for becoming a better lawyer but also enact positive change in the society. Law schools must confront the legal system’s limitations. The main conclusion reached is that by placing access to justice at the center of what they do, legal education providers can play an important role in crafting solutions, providing service and, most importantly, educating the next generation of lawyers so we can deliver on the promise of equal justice under law
The Efficacy of the Legal Aid Act 2016 in Enhancing Access to Justice
Get PDFIn order to fully realize the potential of access to justice for all, the legislative framework for the provision of legal aid will need to be at its best. This study analyses in detail the legislative framework for the provision of legal aid with a particular focus on the Legal Aid Act 2016(herein the Act). The study examines how effective the Act has been in promotion of access to justice to all. The study begins by discussing the concept of access to justice in general and what it entails, buttressed by various laws, case laws, literature sources and human rights instruments. It goes ahead to discuss the gist of the paper which is the efficacy of the Act in promoting access to justice. This study will therefore critically analyze the Act. It will advance arguments demonstrating how progressive the Act is, but will also advance arguments showing the weaknesses of the Act. All these arguments are advanced in the context of access to justice. In the end, a few recommendations will be outlined in order to cure any mischiefs in the Act. This is the primary objective of this study
Pouring New Wines in Old Wineskins: State Capture, Contestations and Conflicting Understanding of the Paralegalism in Kenya with the Advent of the Legal Aid Act 2016
Get PDFCommunity paralegals have played a critical role in promoting access to justice for indigent communities in Kenya. Civil society organizations such as Kituo cha Sheria-Legal Advice Centre pioneered the use of the paralegal approach. Paralegals live within the communities that they serve. They respond swiftly to injustices at grassroots levels. Since the inception of the movement in 1973, paralegals have been trained, mentored and supported by civic actors. With time, the movement organically grew establishing informal structures for improved coordination, support, capacity building and outreach. Community and or Social Justice Centres were founded to operate as “first-aid legal centres” in informal settlements, urban, peri-urban and rural areas. Despite their interventions, community paralegals were not legally recognized. They operated in a legal vacuum and were illegitimate legal aid providers. Sustained advocacy resulted in the enactment of the Legal Aid Act 2016, which recognized paralegals viewed as legal aid service providers. The Legal Aid Act has however redefined the concept of paralegalism shrouding it with restrictions and regulations that threaten the historical gains made towards legal empowerment. The article explores the contestations of paralegalism as it has been known before the Legal Aid Act 2016 and the consequences of formalization and legal recognition
Some aspects of Oreochromis niloticus baringoensis (Trewavas, 1983) fishery assessment and influence of selected water quality parameters in the hot springs of Lorwai Swamp, Baringo, Kenya
Get PDFWater quality has been documented to affect the biology and well-being of fish. This study therefore investigated some aspects of Oreochromis niloticus baringoensis (Trewavas, 1983) fishery assessment and the influence of selected water quality parameters in two hot springs draining into Lorwai Swamp; Lake Bogoria Spa spring and Chelaba spring between the months of July and August, 2018. A total of 445 fish were collected; 244 from Lake Bogoria Spa spring and 201 from Chelaba spring using a seine net. Length Weight Relationship (LWR) was determined using Le Cren’s equation; W=aTLb and Fulton’s condition factor (k) determined using Ricker’s equation; 100W/L3. LWR results indicated an isometric growth for fish from both springs. The mean (± SD) k values for fish in Lake Bogoria Spa spring were 2.02±0.25 for the males, 2.02±0.27 for the females and 2.00±0.26 for both sexes. In Chelaba spring, the mean k values were 2.03±0.21 for the males, 1.97±0.25 for the females and 2.00±0.23 for both sexes. These values indicated that the fish in these hot springs are in a very good condition and healthy status with k values above 1. Some of the selected water quality parameters indicated a positive correlation with the length, weight and Fulton’s condition factor of O. n. baringoensis in the two hot springs
Enhancing Access to Justice through Law School Legal Aid Clinics: The Dual Role
Get PDFThe need for justice in Kenya is ever growing with a large number of Kenyans being in a situation that requires a responsive justice system. However, indigent people are unable to have their legal needs addressed due to high costs of legal services. Most people are unaware of their rights and processes of seeking legal redress when violations occur. Although the Constitution safeguards the right to access to justice, the reality is that the disadvantaged people cannot access justice, afford legal representation, are unaware of their rights and redress mechanisms. Everyone is entitled to equal access to justice. Legal aid is important bridging the gap between the haves and have nots in accessing justice. The Legal Aid Act No. 6 of 2016 recognizes University legal aid clinics as legal service providers through provision of legal advice, representation, drafting of documents and legal literacy and enforcement. This paper looks into the challenges the indigents face in accessing justice and how University legal aid clinics can be used to mitigate the problem. This paper looks at Egerton University Faculty of Law Legal Aid Project (FOLLAP) as a case study in analysing the dual role legal aid plays in legal education. The primary argument made is that effective clinical legal education is attainable through efficient programmes for students under guidance of qualified practitioners. In doing this, the paper examines functional roles of legal aid clinics in other jurisdictions with legal aid for purposes of borrowing lessons intended to strengthen legal aid provision in Kenyan institutions of higher learning
Evolution of Legal Aid in Kenya
Get PDFLegal aid is defined as legal advice, legal representation, and assistance in resolving disputes by alternative dispute resolution, drafting relevant documents ad effecting service incidental to any legal proceedings, and reaching or giving effect to any out of court settlement as provided for in section 2 of the Legal Aid Act , 2016. The Black’s Law Dictionary 9th Edition at page 912, further defines legal aid as the free or inexpensive services provided to those who cannot afford to pay full price. In a bid to adequately assess the evolution of legal aid in Kenya, this paper evaluates the position before and after the promulgation of Constitution of Kenya 2010. Before the Constitution of Kenya 2010, access to justice in Kenya was bedevilled with countless challenges including prohibitive court fees, geographical location, complexity of rules and procedure, use of legalese, understaffing by the providers of the service, lack of financial independence, lack of effective remedies, backlog of cases that delays justice, lack of awareness on ADR and traditional dispute resolution mechanisms. Prior to the promulgation of the 2010 contitution the government provided indigent persons with legal aid, however, in a limited matter as elucidated in the National Action Plan Legal Aid 2017-2020 Kenya. Legal aid was only available to accused persons who were charged with capital offences of murder facing trial in High Court. Despite the Civil Procedure Code having a provision for persons to sue as Paupers the procedure to determine eligibility was and remains nerve wracking. This paper traces the historical development of legislation and policy on legal aid in Kenya. Over the years we see how legal aid has evolved from being more of theoretical aspect to being a prevalent practical service that is offered across the country. The Constitution of Kenya 2010 and the Legal Aid Act 2016 strengthened the principle of access to justice as the instruments birthed the need of effective legal aid provision. Currently, the the pivotal organ for legal aid and awareness established by the government is the National Legal Aid Service and the monitoring and evaluation of all the stakeholders by the institution/organ allows for the furtherance of the main goal for access of justice