Access to justice for persons living in poverty the legal and institutional framework in Kenya

77 Pages·2015·0.65 MB·English

by  Pauline Mudeshi Muhanda

ACCESS TO JUSTICE FOR PERSONS LIVING IN POVERTY
THE LEGAL AND INSTITUTIONAL FRAMEWORK IN KENYA

By

PAULINE MUDESHI MUHANDA
(ADM NO. G62/68593/201 3)

A THESIS SUBMITTED IN PERTIAL FULFILLMENT OF THE
AWARD OF THE DEGREE OF MASTERS OF LAWS (LAW,
GOVERNANCE AND DEMOCRACY) UNIVERSITY OF NAIROBI,
KENYA

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DECLARATION

I Pauline Mudeshi Muhanda the undersigned hereby declare that this is my original work and
that it has not been presented in any other university.

Pauline Mudeshi Muhanda

Signature……………………………… Dated………………………………………….

SUPERVISOR
This project paper has been submitted for examination with my approval as university
Supervisor

Mr. Jackson Bett

Signature…………………………………… Date…………………………………………..

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DEDICATION
This thesis is dedicated to my parents, who are not only my best friends but also the greatest gift
God ever gave me.

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ACKNOWLEDGEMENT

I would like to express my profound gratitude to my Supervisor Mr. Jackson Bett who gave me
invaluable assistance, guidance and insightful comments in writing this thesis. Your critical
thoughts and support went a long way.

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TABLE OF CONTENT
CHAPTER 1
1.0 Introduction
1.2 Statement Problem
1.3 Justification of Study
1.4 Hypothesis
1.5 Research Methodology
1.6 Research objective
1.7 Conceptual framework
1.7.1 The Notion of accessibility
1.7.2 Concept of access to justice
1.7.2.1 Relevance of Access to Justice
1.7.2.2 The Access to justice Principles
1.7.2.2.1 Accessibility
1.7.2.2.2 Appropriateness
1.7.2.2.3 Equity
1.7.2.2.4 Efficiency
1.7.2.2.5
1.7.2.3 Outcome of Access to justice
1.8 Theoretical Framework
1.8.1 Nozick’s entitlement Theory
1.8.2 John Rawls and Social Contract Theory
1.9 Literature Review
1.10 Research Methodology
1.10.1 Site and population of the Study
1.10.2 Research Instruments
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1.11 Limitation of study
1.12 Chapter breakdown
1.12.1 Chapter 1; Introduction
1.12.2 Chapter 2; Kenya’s Legal framework on access to justice
1.12.3 Chapter 3; Legal, instructional and structural Challenges
1.12.4 Chapter 4; Conclusion
CHAPTER 2; KENYA’S LEGAL FRAMEWORK ON ACCESS TO JUSTICE
2.1 Introduction
2.2 Access to Justice under Domestic Laws
2.2.1 Constitutional Provision on access to justice
2.2.2 County Government Act
2.2.3 Civil Procedural Act
2.2.4 Marriage Act
2.2.5 Labour Laws
2.2.6 The proposed Legal Aid Bill, 2013
2.3 Access to Justice in International Law
2.3.1 African Charter and People’s Right
2.3.2 Hague Convention on International Access to Justice
2.3.3 International Convention on Civil and Political Rights
2.3.4 Universal declaration on Human Rights (UDH)
2.3.5 Convention on the Elimination of all forms of Discrimination against
Women
2.3.6 Convention on the Elimination of all forms of Discrimination

CHAPTER 3; LEGAL, INSTITUTION AND STRUCTURAL CHALLENGES
3.1 Introduction
3.2 Challenges in Accessing Justice
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3.2.1 Social and Cultural Barriers
3.2.1.1 Stigma
3.2.1.2 Illiteracy
3.2.2 Geographical Barrier
3.2.3 Financial Barriers
3.2.3.1 Lack of Quality Legal assistance
3.2.3.1 Fees and Costs
3.2.4 Institutional Barriers
3.2.4.1 Inadequate capacity and resources
3.2.4.2 Excessive delay
3.2.4.3 Corruption
3.2.5 Procedural Barriers
3.2.5.1 Formalism
3.2.5.2 Complexity of Procedure
3.2.6 Potential Intervention to access to justice
3.2.6.1 Normative Protection
3.2.6.2 Legal awareness
3.2.6.3 Legal assistance
3.2.6.4 Redress and conflict resolution
3.2.6.5 Enforcement
3.2.6.6 Oversight and monitoring bodies
CHAPTER 4; COMPARATIVE ANALYSIS
4.1 Case Study South Africa and England
4.2 Access to justice in South Africa
4.2.1 Legal aid in South Africa
4.2.1.1 The Legal Aid Board
4.2.1.2 Method of legal Representation
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4.2.1.3 Referral to Private Practitioner (Founded Juricare)
4.2.1.4 State Funded Public Defender
4.2.1.5 University and Law School Legal Aid Clinic
4.3 Access to Justice England
CHAPTER 5; CONCLUSION
5.1 Introduction
5.2 Recommendations
5.2.1 Use of Alternative Dispute Resolution as a form of Access to Justice
5.2.2 Establishment of Small Claim Courts
5.2.3 Language and Presentation
5.2.4 Case flow Management System
5.2.5 Enactment of a legal Aid Act
Bibliography

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ABBREVIATIONS AND ACRONYMS

LASC Legal steering Committee
DFID Department of international development
AGO Attorney General’s Office
LEAPP Legal Education and Aid Pilot Programme
MOJCA Ministry of Justice and Constitution Affair
NALEP National Legal aid and awareness programme
LSK Law society of Kenya
ACHPR African Charter on Human and people Rights
ACRWC African charter on the right and welfare of the child
ICCPR International Convention on Civil and Political Right
ECFRF European Charter of Fundamental Right and freedom
ADR Alternative Dispute Resolution

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CHAPTER 1
1.0 INTRODUCTION

Access to justice to all citizens can only be possible by giving legal advice and legal assistance to
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all people who cannot afford the services of a lawyer . It is therefore the duty of the state to
ensure that all its citizens enjoy their right to justice which includes provision of legal aid
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services to those who cannot afford a lawyer to represent them due to their financial status.
Most Litigants in African countries are unable to access legal services due to non - provision o f
legal aid services from their home states and have thus been forced to approach the courts of
justice without proper legal representation as most countries do not provide for mandatory legal
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representation for poor litigants. It has been urged that acce ss to justice entails the provision of
dispute resolution mechanism which are affordable, proximate, ensure speedy justice and whose
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process and procedure are understood by users. However in a broader context access to justice
includes issues to do with a ccessibility to court, language in court proceedings, court fees, public
participation in administration of justice, backlog of cases that delay justice, use of legalese,
understaffing, lack of effective remedies and awareness of Alternative Dispute Resolu tion
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(ADR) and traditional dispute resolution mechanism.
In Kenya until the passing of t he Constitution in 2010 which recognized access to justice as a
fundamental human right, no law existed that guaranteed poor Kenyans a right to access justice
and t hus most poor people ended up suffering due to the inability to access justice. Whereas the

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Nathalie Chappe et al(2012) Access to Justice and Legal Aid (University of Franche-Conte)
2 th
Hague Convention of 15 November 1965 on the service abroad of judicial and Extrajudicial Documents in Civil
or Commercial matters.
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Martin Schonteich (2012) the Powerful tool of Justice, College of Criminal Justice, (City University of New York)
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Kariuki Muigua PHD, “Improving access to justice; Legislative and administrative Reforms under the
Constitution”
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Supra 2
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