EPISTOLARY JURISDICTION AS A MEANS OF ENHANCING ACCESS TO JUSTICE IN KENYA, PART 2

  • Chapter Break Down

Chapter 1: Ail Introduction

This chapter includes the background of the problem, the statement of the problem and the research hypothesis. It further gives an elaborate review of the literature used in research of this topic and the theoretical framework to be applied.

Chapter 2: Access to Justice in Kenya

This chapter will tiy to prove the hypothesis that poor people by virtue of their poverty are unable to access the judicial process and consequently are unable to receive redress or enforce their fundamental freedoms and rights. It will further establish that despite Constitutional guarantees, the right of access to justice still remains unrealized for the poor majority of the Kenyan population.

Chapter 3: Comparative Study

This chapter will look into how Epistolary jurisdiction has been implemented in India. It will highlight legal structures and procedural innovations that have enabled India’s judiciary to successfully implement Epistolary jurisdiction. More so, it will look into the shortfalls of Epistolary jurisdiction and provide viable ways to correct them.

Chapter 4: Application of Epistolary Jurisdiction in Kenya

This chapter will analyse various judicial pronouncements on epistolary jurisdiction. Furthermore, it shall highlight decisions made on legal standing and the expansion of the right of access to justice in Kenya. It shall seek to prove that Kenya has no precise legal framework guiding the application of Epistolary jurisdiction.

Chapter 5: Conclusion and Recommendations

This Chapter shall conclude the findings of the dissertation, chapter by chapter and provide recommendations as to the legal framework on the application of Epistolary jurisdiction in Kenya.

  • Theoretical Framework

Universality of Human Rights

This school of thought is of the view that certain human rights and freedoms are universal and inalienable to the human race. It is from this principle of universality that the Universal Declaration of Human Rights (1948) was passed in an effort to codify and institutionalize the said fundamental rights and freedoms. One of the many fundamental rights and freedoms recognized by the Universal Declaration for Human Rights is the right to access justice. It posits verbatim that, ‘everyone has the right to an effective remedy by the competent national tribunals for the acts violating the fundamental rights granted to him by the constitution or by law.’ Further, epistolary jurisdiction is already in application in India, as a mechanism of accessing justice. India and Kenya have very many features in common. First and foremost they both apply the common law system. Secondly, Kenya is faced with similar challenges as those facing India. According to the World Bank poverty index Kenya is ranked as a low income level with 34-42 % of its population living below poverty line, India on the other hand of the 872.3 million people living below the poverty line worldwide 179.6 million(17.5%) live in India. Poverty is the biggest impediment to accessing justice. Considering the above two similarities and the efficacy of epistolary jurisdiction in India the need for Kenya to adopt it in solving its access to justice puzzle is clear.

  1. Social Contract Theory

To best understand epistolary jurisdiction, one must first understand the concept of access to justice. John Rawls envisages a world where actors – behind ‘a veil of ignorance’ rendering all parties equal – determine the principles of the institutions governing their social institutions. In his institution based theory of justice he asserts two central principles. First, each person has the right to the same liberties as those received by others. Second, if there are to be social and economic inequalities, they must be attached to offices predicated on fair and equal hiring and must be advantageous to the worse off. Amartya Sen in The Idea of Justice presents an alternative interpretation of access to justice. Instead of focusing on Institutions, Sen focuses on the behaviour of people in a society. He suggests comparing different communities facing similar challenges and understanding the mechanisms that provide them with more just concerns. This approach moves the focus away from institutions and is concerned with individuals’ or communities’ actual realizations and commitments. The comparative approach also recognizes that different reasonable principles of justice exist and is thus a more flexible construct when trying to understand justice as perceived by a different culture or community. Thomas Hobbes a proponent of the social contract theory posits that in the original state of nature, man lived a short, nasty and brutish life, governed by the rule of the jungle ‘survival for the fittest’. To escape this state of nature, a government is established by a social contract. Whereby individual persons come together, surrender some of their rights and freedoms to a more powerful organ – the government. Through this social contract, the ‘Leviathan’ (government) is tasked with securing those rights and freedoms. Among the rights entrusted to a government is ensuring accessibility to justice. Whereas the government has made several advancements towards improving access to justice, a lot more needs to be done as many Kenyans still find it difficult to access justice through the available mechanisms. This depravity has resulted to the continued application of other mechanisms some of which are repugnant to justice and morality and lead to further exploitation.

  • Utilitarian Theory

The proponents of this school of thought mainly Jeremy Bentham and John Stuart Mill state that laws are socially justified if they brought the greatest happiness or benefit to the greatest number of people. The utility of epistolary jurisdiction as a mechanism to access justice by and large solves problems such as backlog of cases, delay in the delivery of justice and the cost of accessing justice. As expounded on earlier, a considerable number of Kenyans face difficulties accessing justice. Further, it is in the best interest of Kenya and society as a whole that justice delivery be fastened and the cost incurred minimized hence benefiting the greatest number of people.

 

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