Back Oduor's effort to deliver justice to those who can't pay

Last week, Attorney General Dorcas Oduor launched the nationwide “Justice at your Doorstep” initiative. The initiative operationalises the National Legal Aid Service established under the Legal Aid Act of 2016.

The intention of the scheme is to expand legal services to vulnerable and marginalised citizens to meet the state’s constitutional obligations under Article 58 to ensure access to justice for all citizens. It also creates the framework to implement Article 50(h) which requires the state to provide free legal representation where substantial injustice would result from non-representation.

The AG started the programme by opening the first state run Legal Aid Centre in Machakos. The intention is to open such centres across the country offering support to indigent citizens in civil and criminal matters.

This state funded legal aid programme comes 53 years after young lawyers led by visionaries including the late Professors Oki Ooko Ombaka and David Gachuki, together with Professor Willy Mutunga and Murtaza Jaffer opened the “Kituo Cha Mashauri” in 1973.

This institution later became “Kituo Cha Sheria” and was for decades the sole institution offering free legal services to citizens. The impetus for setting up “Kituo”, and later legal aid initiatives, was a recognition of the shattering impact of poverty when poor citizens come into conflict with the law.

Two cases that have come across my desk recently point to this reality. In the first case, Waithera, a jua kali hustler was brutally murdered in Nakuru County. The police carried out investigations, including taking fingerprints and DNA at the scene of crime and established the movements of the deceased’s phone in possession of the suspected murderer.

When the trial began, none of these pieces of evidence were produced by the prosecution. Eventually the court had no option but to free the accused. Had Waithera’s family not been poor they would have instructed a lawyer to hold a watching brief during the trial and justice would have been served. In the second case, Kioko, a 19-year-old orphan, was charged with theft in a workshop in Gikomba.

The prosecution’s case was so weak that had Kioko been represented he would not even have been put on his defence. Poor Kioko was eventually jailed for seven years. It transpired that the collateral purpose of this prosecution was to enable Kioko’s uncle, from whom he is alleged to have stolen, dispossess Kioko of his father’s inheritance. By the time Kioko left jail five years later, his father’s land was gone.

Attempts to pursue the issue through the courts, without representation, came to nothing and Kioko remains dispossessed and bitter, a victim of a justice system brutal on the impecunious. Nowhere is the link between poverty and injustice more evident than the high percentage of “state guests” in our remand homes and prisons. Anecdotal evidence indicates that up to three quarters of those in remand homes and prisons are persons who could not afford legal representation.

These stories underscore the urgency of the programme commenced by the AG. Poverty is debilitating and humiliating in all its manifestations but within the justice system, its effects impact generations. Waithera and Kioko’s families and thousands suffering the same fate, absent of well-wishers, are consigned to generational poverty and marginalisation.

While the state funded legal aid scheme may not resolve all the justice challenges that impact the indigent, it is nevertheless a good start. One hopes that the challenges that bedevilled earlier attempts will not hamper this programme. Past challenges included insufficient funding and lack of a clear coordinated framework to implement an effective programme.

One way in which the state can make the programme more effective is to coordinate with local Law Societies to increase the pool of volunteer lawyers available to offer representation in deserving cases. I know hundreds of lawyers who would be willing to take up occasional cases pro bono if the programme was well coordinated.

Those who have participated in such endeavours know there is no greater reward for a lawyer than freeing the poor from the jaws of injustice. It is also the least “thank you” that a lawyer can say to society for its investment that has enabled them access the privileges that come from being a learned friend.    

The writer is an advocate of the High Court of Kenya