By Steve Ogolla
There cannot be equal access to justice where the river of justice flows mightily towards the rich and only trickles towards the poor.
The legal scene has been changing since 2016 to broaden the scope and space for access to justice, especially for the poor who cannot afford to instruct lawyers.
In 2016 Parliament passed two important legislations namely, Legal Aid Act and the Small Claims Court Act. These laws are organized around the ideology of inclusive access to justice.
The Small Claims Court Act establishes the Small Claims Court as a subordinate court with pecuniary jurisdiction of KES 200,000.
This mean any person with a civil claim of less than KES 200,000 relating to breach of contract for sale and supply of goods, damage to property or personal injury can transfer or file their cases in the Small Claims Court, presided over by an Adjudicator/or even qualified paralegal.
These courts are less formal, with no lawyers on record, and rules of evidence are excused. In these courts, hearing proceeds on a daily basis until the matter is resolved, including reaching witnesses through phone calls if they are unable to attend court.
This means that in a country where more than half live on less than USD 2 a day, most civil disputes would be less than 200K. If operationalized, the formal courts will immediately be decongested and the backlog cleared in just under six months.
Secondly, the judiciary has been piloting Court-annexed mediation in the family and commercial divisions. But it is not clear when the program would be rolled across all stations. This too carries tremendous transformative potential, in terms of reducing backlog and ensuring timeous dispute resolution.
Thirdly, the Legal Aid Act requires legal services (advise, assistance, and representation) to be provided to the poor at the expense of the State, relating to matters pending in formal courts. The scope of legal aid services include civil, criminal, children, constitutional and public interest matters as well as any other types of case or law that the National Legal Aid Service may approve.
PERFECT LEGAL SET UP DELAYED
The Small Claims Court Act and the Legal Aid Act, and the Court Annexed Mediation, project the image of a perfect and all inclusive legal regime on access to justice.
However, the reality is that implementation of the beautiful legal framework remains a pipe dream as the government has not prioritized funding and operationalization of these laws. This means the poor will have to wait longer to experience meaningful access to justice.
Efforts to broaden access to justice must equally be supported by training people on self representation.
This means the public should be better informed and well equipped to be able to act in person, especially in matters that are less complex, and without comprising the quality of argument or unduly burdening the courts with guidance on court procedures.
Self representation necessary requires that the litigant acting in person, be intimately familiar with court etiquette, address, dressing, and terminologies. Similarly, self representation demands basic understanding on drafting pleadings, law, process and procedures.
Happily there are several public benefit organizations fully committed to building the capacity of the public to self represent, and cut legal costs without compromising the outcome of their cases. One such organization is THE INSTITUTE FOR SOCIAL ACCOUNTABILITY (TISA), committed to supporting the public to act in person in matters of public interest, while providing technical assistance as and when called upon.