EPISTOLARY JURISDICTION AS A MEANS OF ENHANCING ACCESS TO JUSTICE IN KENYA, PART 1

CHAPTER 1: INTRODUCTION 1.0 .Background

Access to justice is the basic principle of the rule of law’necessary for the enforcement of basic and fundamental rights. Access to justice has been described as, “the provision of dispute resolution mechanisms which are affordable, proximate and ensure speedy justice and whose processes and procedures are understood by users”.[1] [2] In a more apt definition of access to justice, it is described as “the ability to seek and obtain a remedy through formal or informal institutions of justice, and in conformity with human rights standards.”[3] Access to justice entails access to the courts and other judicial and quasi-judicial tribunals, language of the court proceedings, court fees, public participation, and accessibility for persons with disabilities and availability of information.[4] Many international, regional and domestic instruments have gone lengths to establish the importance of access to justice. The Universal Declaration of Human Rights,[5] the International Convention on Civil and Political Rights[6] and the African Charter on Human and People’s Rights[7], to which Kenya is a party, have concisely included access to justice as a fundamental right. The Constitution of Kenya 2010 succinctly includes access to justice as a fundamental right and provides for mechanisms leading to its realization. It provides that the state shall ensure access to justice for all persons[8] and that every person has a right to institute court proceedings in order to enforce a right or fundamental freedom that has been violated or is under threat of violation. Moreover, it provides for equality before the law and equal protection and benefit before the law[9]. Furthermore, the Constitution provides that the judiciary shall rely on principles that accord: justice to be done to all regardless of status;[10] [11]justice shall not be delayed;” and justice shall be served without undue regard to procedural technicalities.[12]

However, despite the legal framework, access to justice in Kenya is far from realization. It has constantly been hampered by high court and legal fees, scarce geographical locations of courts, the complexity of rules and procedure and the use of legalese. The judicial process is also heavily dependent on the limiting rules of civil procedure, and litigious courses taken by the parties themselves.13 Against a backdrop of a poor and largely illiterate citizenry, there is a pressing need to invent new mechanisms that ensure the realization of access to justice by all Kenyans which in turn will ensure protection and enforcement of rights and fundamental freedoms.

Epistolary jurisdiction is a new legal mechanism that ensures the access to justice to all regardless of status. This is the jurisdiction of the courts to accept informal documentation that discloses the details of the violation of a right or freedom as an appropriate method of commencing court proceedings, therefore bypassing all procedural difficulties that might hamper access to justice. Although it has been established under Article 22 of the Constitution,14 it has not been effectively developed and implemented in Kenya.

  • Statement of the Problem

Access to justice, as a fundamental right guaranteed by the Constitution has been inefficiently enforced in the Kenyan jurisdiction. This reality is as a result of the many social, legal, structural and institutional barriers that limit access to the judicial process. Many of those who bear the brunt of this burden are those engulfed in poverty; groups of people who are socially and economically disenfranchised and lack the economic or social capital necessary to circumvent such obstacles. These barriers include, the fear of reprisal and mistrust of the justice system, socioeconomic subordination of people living in poverty, lack of empowerment and access to information, lack of legal identity, inadequate legal frameworks and judicial review for social policies, inadequate court capacity and resources, physical inaccessibility to court, high court and legal fees, complex and technical legal procedure, excessive use of detention and incarceration, non-existent or inadequate legal assistance.l5Deprived of the social or economic resources to counter these barriers, poor

  • Kariuki Muigua, ‘Access to Justice: Promoting Court and Alternative Dispute Resolution Strategies.’
  • Article 22 (3) (b) of the Constitution of Kenya states that he Chief Justice shall formulate rules which shall satisfy the criteria that formalities relating to the proceedings, including commencement of the proceedings, are kept to the minimum, and in particular that the court shall, if necessary, entertain proceedings on the basis of informal documentation; the entertainment of informal documentation to commence court proceedings is what is referred to as Epistolary jurisdiction.
  • UN General Assembly, ‘Report of the Special Rapporteur on extreme poverty and human rights’, August 2012, Para

in.

people are unable to access courts and obtain legal redress. They are subsequently left in a de facto state of lawlessness, sometimes resulting to extrajudicial mechanisms of redress which lead them further into their deprived state. This is despite firm legal guarantees under the Constitution of the right to equal access to justice and protection by the law.

This paper, therefore, primarily seeks to elucidate on the challenges faced by poor people when enforcing their right to access justice and consequently discuss epistolary jurisdiction as a viable mechanism for resolving some of these challenges.

  • Hypothesis of the Study
  1. Poor people in Kenya, by virtue of: high court and legal fees, complex and technical legal procedure, lack of financial independence, lack of effective legal remedies, backlog of cases in courts that delays justice, lack of awareness of judicial options and lack of legal identity; are unable to access justice in Kenya.
  2. Effective implementation of epistolary jurisdiction, as seen under the Indian jurisdiction, will enhance access to justice for poor people in Kenya by circumventing the lack of legal identity, high court and legal fees, complex and technical legal procedure and the lack of effective remedies.
  3. The lack of a concise legal framework supporting epistolary jurisdiction, established under the current Constitutional dispensation, limits the development and application of the concept in the Kenyan jurisdiction.
  • Objectives of the Research

This research paper seeks to achieve the following objectives:

  1. Investigate the influence of poverty and subsequent social inequality with respect to poor people’s inability to access courts and acquire effective legal redress.
  2. From the foregoing, discuss epistolary jurisdiction, with reference to the Indian jurisdiction, as a valid legal mechanism for enhancing access to justice for poor people in Kenya.
  • Provide viable recommendations through which epistolary jurisdiction can be actualized as a means of enforcing the right of access to justice in the Kenyan judicial system.
  • Research Questions
  1. To what extent has poverty affected the effective enforcement of the right to access justice in Kenya?
  2. How viable is epistolary jurisdiction as a mechanism to counter the effects of poverty in society and further guarantee equal access to justice in Kenya?
  • What legal frameworks can be designed to ensure efficient implementation of epistolary jurisdiction in Kenya?
  • Scope and Limitation of the Study

The research will seek to investigate how poverty and social inequalities frustrate the effective enforcement of access to justice. Moreover, it will seek to analyze epistolary jurisdiction as a means of empowering the poor to get an equal footing in accessing justice and enforcing their rights. Furthermore, the research will carry out a comparative study of the implementation of epistolary jurisdiction in different States and give recommendations on its effective implementation in Kenya.

A major limitation to this research has been the scarcity of material information on the application of epistolary jurisdiction owing to the fact that it has had a limited application and many jurisdictions have not established an effective legal framework around it.

  • Literature Review

The United Nations has acknowledged the right of access to justice as a fundamental component in the rule of law. The Human Rights Commission in its General Comment has also acknowledged the right as a procedural means to safeguard the rule of law.[13] This has been so acknowledged since, in the absence of access to justice, people cannot enforce and exercise their rights, participate in effective governance by holding decision makers accountable, fight discrimination and basically have their voices heard.[14] In a resolution adopted by the United Nations, States made a declaration emphasising on the right of access to justice for all especially the vulnerable groups. More so, States emphasised on the importance of raising awareness on legal rights in order to provide fair, transparent, effective, non-discriminatory and accountable services that promote access to justice for all.[15] In relation to the global importance laid on access to justice, in her report, the Special Rapporteur on Extreme Poverty and Human Rights stated that inequality limits and defeats the enjoyment of human rights and social justice in every sphere of public life. The poorest people and the most marginalized are restricted from accessing justice on an equal footing as the privileged in society. As a result, such disenfranchisement creates a vacuum where the poor are continuously exploited. Their inability to enforce their rights forces them to be entangled in a continuous cycle of poverty, exploitation and aggravated criminal activity. Due to this, she recommended access to justice should be included as a global stand-alone goal for the achievement of the ‘human-centered social and economic development’. The realization of the right to access justice for all would elevate the poor to a position of equal footing as the privileged and allow their disentanglement from the vicious cycle of poverty since access to justice is vital in the enforcement of other civil, political, social and economic rights. Further, equal access to justice would help in the enforcement of human rights by reducing the deprivation of the much needed resources by the progressive development of social and economic rights, enforcement of property rights and labor rights curtailing the exploitation of the poor.[16]

The paper, Judiciary in India: Hunger and Thirst for Justice,[17] [18] sheds light into the gradual efforts of the Indian judiciary to bring about increased access to justice for the people of India, in particular the poor and disenfranchised people. Justice Bhagwati acknowledges that a problem faced by India and many other third world countries is the increasing number of groups of people who may be subject to exploitation, injustice and even violence on a sustained and systemic basis, due to the rigid rules of locus standi and judicial complacency, frustrating their right of access to justice. Further acknowledged by the report On Access to Justice for Persons Living in Poverty: A Human Rights Approach21 which states that poverty is not only a cause of exploitation of human rights, but is also a cause for the lack of enforcement of human rights. The paper states that access to justice is a crucial element in enabling the poor to not only protect themselves against arbitrary limitation of their rights, but also a way of enabling the realization of their socio-economic rights, which will in turn free them from the yoke of poverty. In light of this, Justice Bhagwati’s paper explicates procedural innovations by the Supreme Court of India such as broadening the rules of locus standi via social action litigation and epistolary jurisdiction and, non-adversarial, investigative proceedings of the court as an endeavor to remedy the predicament stated above. Moreover, the paper defends amidst a flurry of criticisms, the need for judicial activism as a way for the judiciary to progressively realize social-economic rights of the people and continuously guarantee justice to the ordinary and disempowered members of the society.

However, in the endeavor to enforce the right of access to justice, it is important to analyze the right in its entirety. In her article,[19] Elizabeth L. MacDowell criticizes legal scholars and activists of a narrow interpretation of access to justice which only focuses on the procedures of accessing the dispute resolving institutions, but fails to highlight their capability to dispense justice once those institutions are accessed. She states that ‘poor people’s courts’ have taken part in enforcing subordination of poor people to other privileged groups of people and expanding state power when it comes to the effective provision of access to justice. She further states that the definition of access to justice seems to suggest that once proper systemic infrastructures are put in place enabling equal access to justice for all,[20] then, inevitably, justice shall be served. However, she exposes a concern of the shortcomings of this definition since it fails to recognize that justice does not function in a vacuum and that there are other social factors that may curtail dispensing justice such as judicial bias, court culture and unwanted state interference. Therefore, she recommends the use of a social justice approach in analyzing how the law works for the poor people through legal institutions.

Therefore, in designing a proper legal framework for the implementation of epistolary jurisdiction, an analysis of the various social factors that influence judicial institutions is key in order to ascertain the efficient implementation of epistolary jurisdiction in the enforcement of access to justice and other rights.

[1] United Nations and the Rule of Law https://www.un.org/ruleoflaw/thematic-areas/access-to-iustice-and-rule-of-law- institutions/access-to-iustice/. September 10, 2015.

[2]  Kariuki Muigua “Improving Access to Justice: Legislative and Administrative Reforms under the Constitution’, workshop on Access to Justice, Nairobi (Sankara Hotel, Westlands), Tuesday, 23rd October 2012.

[3] FID A Kenya, the Peoples Version Informal Justice System, 2011.

[4], KLRC, Draft Report on Audit of Laws on Access to Justice, March 2012.

[5] Article 8, Universal Declaration of Human Rights, 20 December 1928.

[6] Article 14, International Convention on Civil and Political Rights, 19 December 1966.

[7] Article 7(1), African Convention on Human and People’s Rights (Banjul Charter), 28 June 1981.

[8] Article 48, Constitution of Kenya (2010).

[9] Article 27, Constitution of Kenya (2010).

[10] Article 159 (2) (a), Constitution of Kenya (2010).

[11] Article 159 (2) (b), Constitution of Kenya. (2010).

[12] Article 159 (2) (d), Constitution of Kenya, (2010).

[13]  Human Rights Committee, CCPR General Comment No. 32, Article 14: Right to equality before courts and tribunals and to a fair trial, (2007).

[14] United Nations and the Rule of Law https://www.un.org/ruleoflaw/thematic-areas/access-to-iustice-and-rule-of- law-institutions/access-to-iustice/. September 10, 2015.

[15]The General Assembly, Declaration of the High-level Meeting of the Genera! Assembly on the Rule of Law at the National and International Levels, 30th November 2012.

[16] OHCHR, Special Rapporteur on Extreme Poverty and Human Rights, ‘Equality and Access to Justice in the Post- 2015 Development Agenda’.

[17] P.N. Bhagwati, CJ. Dias, ‘the Judiciary in India: A Hunger and Thirst for Justice’, 5 N.UJ.S Law Review, (2012).

[18] Magdalena Sepulveda Carmona, Kate Donald, ‘Access to Justice for Persons Living in Poverty: A Human Rights Approach’, Elements for Discussion Series, Ministry for Foreign Affairs of Finland (Erweko Oy).

[19] Elizabeth L. MacDowell, ‘Reimagining Access to Justice in the Poor People’s Courts.’ 2015.

Here she refers to enabling access to dispute resolution institutions and processes.

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