EPISTOLARY JURISDICTION AS A MEANS OF ENHANCING ACCESS TO JUSTICE IN KENYA, PART 3

CHAPTER 2: ACCESS TO JUSTICE IN KENYA

• Introduction

Democracies with a deep respect for the realization and enforcement of basic human rights acknowledge that constitutionalism and the rule of law are key tenents in preserving an orderly and harmonious political, social and economic environment. In such democracies, the constitution is held to be the supreme law directing, defining and permitting all actions of the state. This adherence to the rule of law and constitutional supremacy provides a firm guarantee that powers and liberties provided to authorities under the law shall not be put into whimsical use, betraying the freedoms and human rights guaranteed to the people. As a result, every person is guaranteed equal treatment before the law, institutions of legal redress become readily accessible, firmly guaranteeing the right to access justice to all regardless of social or economic status.

The above description, however, is a Shangri-La for most people in Kenya. Constitutionalism and the rule of law are habitually flaunted as discretionary while many Kenyans are left at the mercy of a tyrannical leadership that is oblivious to their plight. Consequently, basic human rights and freedoms, particularly the right to access justice and equal protection by the law are abhorrently violated.^[1] For poor people, accessing and obtaining legal redress is close to impossible occasioned by the prevailing lawless and despotic circumstances.

This chapter seeks to investigate and confirm the hypothesis that poor people are unable to access institutions of legal redress such as courts and consequently obtain justice due to the legal, institutional and structural barriers that are created as a result of the aforementioned circumstances. The first part of the Chapter seeks to elaborate on how poverty can result in lack of access to justice with reference to the Kenyan situation. The second part of the Chapter shall then focus on legal, institutional and structural barriers of access to justice. This section is inclined to prove that the legal setting in Kenya is one that has systematically discriminated against the poor from accessing the courts and receiving legal redress. The prominent legal barrier to be discussed in this Chapter shall be the lack of legal identity for many poor people that has resulted to the lack of recognition of these people by the State thus denying them the tools required to seek recourse in courts or

judicial tribunals. Institutional banners discussed herein include the judiciary’s insufficient capacity and resources, high court and legal fees and conniption. Finally, the structural banners of access to justice to be discussed include the formality of legal procedure and the concept of legal standing. Lastly, this Chapter shall analyse the Constitution of Kenya, 2010 and how it has sought to resolve these banners and embrace the poor people into the judicial process.

• Poverty and Access to Justice

Poverty is defined as a human condition characterized by sustained or chronic deprivation of the resources, capabilities, choices, security and power necessary for the enjoyment of an adequate standard of living and other civil, cultural, economic, political and social rights.^[2] Poverty can be perceived as a double edged sword in that it can be the cause of the deprivation of the right to access justice and a consequence of such deprivation.^[3]

On one hand, the reduced allocation of financial and human resources to judicial institutions can lead to systemic failures. Such systemic failures, understaffing and overstretching of judicial institutions; corrupt practices and bribery, have disproportionate effects on the poor barring them from accessing justice since, as a result of their poverty, they already lack the resources to counter such failures. On the other hand, poor people’s inability to access the judicial processes and enforce their political and socio-economic rights, leads them to further exploitation, entrenching them deeper into the cycle of poverty.^[4]

In an economic update report by World Bank^[5], Kenya’s poverty rate is estimated to be at 32%- 40% of the population. With an approximate population of 46 million Kenyans, 16 million of them are living below 1.25 dollars a day. In Kenya, the minimum amount of court fees payable to file a plaint is KSh. 1500.^[6] Moreover, the need for legal counsel in order to wade through the murky waters of judicial procedure is an added expense. Clearly, for a person living below a dollar a day, which is approximately KSh. 105, it would take an arm and a leg to raise this amount in order to access the judicial institutions and receive redress which they keenly need in order to protect their fundamental rights and economic interests. Therefore, this portion of the population may never obtain redress for violations of their rights and fundamental freedoms.

• Barriers of Access to Justice

Access to justice is a crucial component within any Bill of Rights. It not only enables people to enforce their rights and freedoms, it also allows citizens to hold leaders accountable for their actions. More so, access to justice is a tool for development and economic progress, enabling the poor to use the law, legal systems and legal services to protect their rights and advance their interests as economic actors.

Since she gained independence, preceded and influenced by a tyrannical colonial legal dispensation, Kenya has suffered its fair share of human rights abuses and violations. The rule of law and constitutionalism and consequently, access to justice, has constantly been disregarded in favor of an autocratic regime serving the interests of a few who have the economic, political or social capital to influence decisions. Institutions, meant to be custodians of the rule of law, have been forced to operate under the bulbous thumb of an almighty executive, denying ordinary Kenyans equal protection by the law. The judiciary has been stripped bare of its sacrosanct independence through the removal of tenure of judges^{[7] [8]} spawning a rather weak and timid judiciaiy that operates on the whims of its master. The private bar has also been undermined and silenced through continuous and frivolous arrests of private attorneys and activists^[9] who dare, and bravely so, to contradict the government position.^[10]

These intrusions, by an all too powerful executive, have led to the systemic failure of the judicial process. Consequently, many legal, institutional and structural obstacles have thus developed as a result of a weak judiciary, subsequently denying many poor Kenyans an opportunity to enforce their rights.

• Legal Barriers

1. Legal Identity

The right to be recognized as a person before the law is a fundamental human right guaranteed under Article 16 of the ICCPR^[11] and Article 7 of the Convention on the rights of the Child^[12]. More so, the Kenyan Constitution recognizes this right under Article 53 where it guarantees every child the right to a name and nationality from birth.^[13] Furthermore, the holding of legal documentation in Kenya has proved to be a catalyst in the achievement of various development goals. These include access to employment and economic wellbeing, access to justice, political engagement, and access to services such as health care and education.^[14] Nevertheless, the achievement of this right under the Kenyan jurisdiction has been designed with stringent bureaucratic procedures that are inefficient in continuously and universally providing documentation of births and national identification cards to all those who require them.^[15] More so, a report by the Office of the Ombudsman shows the use of such processes to discriminate against those who would want to acquire legal identity in Kenya.^[16] It is obvious that most people who are unable to acquire such legal identity are the poor and marginalized. This reality is troubling since legal identity is linked with the ability to access entitlements such as social services, political rights and participation in the formal economic sector. This denial of legal identity prevents the victim from operating legal business ventures, denying him or her the ability to further his or her economic interests. This prevents such a person from improving their economic status, further entangling them to the yoke of poverty.

• Institutional Barriers

1. Inadequate Resources and Capacity

The judiciary’s budget in Kenya falls below one percent of the national budget, with other institutions such as the Directorate of Public Prosecutions being worse off. Considering the national footprint of the judiciary’s work together with their over 5000 staff membership, the judiciary’s budget falls way below the 2.5% budgetary allocation under international best practices.^[17] Deprivation of financial and human resources to the judiciary, the police and prosecution bodies, and insufficient training and capacity-building for judicial and law enforcement officers leads to systemic failures. The result is serious neglect and even mistreatment of those seeking justice, which is more pronounced for the poor, whose cases are usually under­prioritized.^[18] Moreover, insufficient resources may result in case backlog delaying the delivery of justice for all.

1. Fees and Costs

In addition to costs incurred to institute court cases, there are many incidental costs incurred in the pursuit of justice through the judicial process. Legal costs are incurred in every stage of the judicial process. Costs incurred in criminal proceedings are burdensome because one is obligated to put up large sums of money in order to be granted bail, or risk long periods of pre-trial detention. This in turn provides an advantage for economically advantaged people who are able to pay such costs. In civil proceedings, fees are payable when instituting legal proceedings or when timelines are exceeded. More so, in conclusion of a civil suit, the unsuccessful party is required to pay the legal costs. In addition to such payments, obtaining legal counsel will require the exhaustion of more financial capital in order to proceed with a suit. In addition to these administrative fees, persons living with poverty are met with further expenses especially if they come from rural areas and need to travel long distances to access courts, transportation costs may be an added burden. The cumulative impact of such costs is a factor discouraging poor people from seeking redress through court processes frustrating their right to access and receive justice.^[19]

• Corruption

Due to insufficient financial and human resources in the judiciary, an influx of corrupt practices bloom due to its overstretched and understaffed circumstances. Illicit payments and favors enable those with financial capital to wade through with greater efficiency and effectiveness at times being able to secure an outcome. In contrast, many poor and disadvantaged people, since they are unable to pay the bribes are left out of the judicial process, their cases either delayed, denied or discontinued. This predatory culture consequently deters people living in poverty from resulting to the courts for redress. More so, there is an erosion of trust in the judiciary and other legal institutions.^[20]

• Structural Barriers

1. Formalism

Due to institutional obstacles such as high court and legal fees, many poor people are unable to secure private legal counsel. By virtue of their illiteracy or ignorance of the law and court procedures, these people are confronted by complex and technical processes of the court, traditions and interactions, the use of legal jargon and mainstream languages and restrictive time limits, unaided. Poor people are intimidated by unfamiliar rules regarding dress codes, the hierarchy of the court system, confrontational courtroom design, and traditions about when to sit, stand and address the judge. As a result, they are in an unequal and disadvantaged position before they even walk into the courtroom.Such formality discourages poor people from seeking redress through courts, hindering fair outcomes.^[21]

1. Lack of Legal Standing.

A major impediment to accessing justice is the lack of legal standing. Rigid rules of standing do not take into consideration the unique circumstances of each violation and the ability of the victims to proceed and litigate their issue in court. Previously in Kenya, the rules of standing allowed only those with an interest in any proceeding to be a party in such a proceeding. Clearly, this discriminated against poor people who were unable to litigate their cases due to the preceding legal, institutional and structural barriers. In addition, this was a tactic used by the government to overcome activist litigation as seen in the case of Wangari Maathai v Kenya Times Media Trust Ltd^[22]. In this case, Kenya Times Media, which was a parastatal wanted to erect the tallest building in Africa in the Uhuru Gardens, a public recreational park. The petitioner, Wangari Maathai moved to court to stop the construction of the building and destruction of the park. The court, however, denied her audience claiming that she did not have the legal standing to approach the court. The court stated that the matter was a public interest matter in which Wangari Maathai did not show a private interest in litigating it. At the time, only the Attorney General had the standing to litigate public interest matters, however, the AG, a political appointee, could not go against the hand that fed it. However, under the new constitutional dispensation, legal standing has been expended to include third party litigation as well as public interest litigation, further discussed below.

As a result of these barriers to access to justice, whether living below or slightly above the poverty line, these men, women, and children lack the protections and rights afforded by the law. They may be citizens of the country in wliich they live, but their resources can neither be effectively protected nor leveraged. Thus, it is not the absence of assets or lack of work that holds them back, but the fact that the assets and work are insecure, unprotected, and far less productive than they might be. Their property rights and economic rights mean nothing in the face of blatant inequality among classes. Clearly, vast poverty must be understood as created by society itself. The laws, institutions, and policies governing economic, social, and political affairs deny a large part of society the chance to participate on equal terms. This stunts economic development and can readily undermine stability and security.

The outcomes of governance – that is, the cumulative effect of policies and institutions on peoples’ lives – will only change if the processes of governance are fundamentally changed.^[23]

• The Constitution of Kenya, 2010

Despite the gloomy past, Kenya’s new constitutional dispensation promulgated in 2010 has sought to restore balance within the three arms of governments and protect the rights and freedoms of individuals, especially marginalised and vulnerable groups of people, including the poor. To this effect, it provides that the State and consequently every state organ has a duty to observe, promote and respect the rights and fundamental freedoms provided under the Bill of rights. It further states that all state organs and public officers have a duty to address the needs of vulnerable groups.^[24] Article 48 grants that every person has a right to access justice and bestows the State with the responsibility to ensure it is achieved.^[25] It also provides, under the same article, that any fee required to meet this obligation shall be reasonable and not impede access to justice. This provision is supported further under Article 22 (3) wliich states that the Chief Justice shall make rules^[26] providing for court proceedings in wliich the criteria that formalities relating to proceedings, including the commencement of proceedings, and in particular, the court entertaining proceedings on the basis of informal documentation, when necessary, shall be met. Moreover, the rules shall ensure that no fee may be charged for commencing such proceedings.

Under the rules, the judiciary’s commitement to enhance access to justice for all persons is reiterated as the overriding objective.^[27] Furthermore, the rules emphasize that the court shall pursue access to justice for all persons including the poor, illiterate, uninformed, unrepresented and persons with disabilities.^[28] The rules further guarantee access to justice for all by rescinding as mandatory the requirement that commencement of proceedings should be done through a formal application. It states, however, that the court may accept an oral application, a letter or any other informal documentation which discloses denial, violation, infringement or threat to a right or fundamental freedom.^[29]Clearly, the Constitution intended that court proceedings, especially those highlighting violation of rights, should not be curtailed. It is in futher pursuit of this, and acknowledging that the greatest impediment to accessing justice is the requirements of locus standi, that Article 22 sought to extend such requirements. Under section 2, persons are not only allowed to institute suits in their own interests, but also a person can institute a case on behalf of: another person who cannot act in their own name,^[30] a person acting as a member of, or in the interest of, a group or class of persons,^[31] a person acting in the public interest,^[32] or, an association acting in the interest of one or more of its members.^[33] It is from the extension of these rules that a new form of litigation has thrived, Public Interest Litigation. This form of litigation allows social action groups, activists or any public spirited person to bring an action relating to matters that are held to be of public importance for deliberation in court. Previously, the requirements of locus standi prevented individuals who had no personal interest or personal injury in a matter from commencing a suit in court.^[34]

Thus, in light of the above provisions, Article 159 directs the judiciary to be guided by these principles while carrying out its duties:

1. that justice shall be done to all, irrespective of status;
2. that justice shall not be delayed;

• that justice shall be administered without undue regard to procedural technicalities;

1. that the purposes and principles of the Constitution shall br protected and promoted. These provisions, if implemented religiously, are a foundation upon which epistolary jurisdiction may be enforced within the judicial process. The Constitution has strived to ensure that every Kenyan, especially those vulnerable to abuses and violations of human rights and freedoms have unconstrained access to courts and are able to receive audience and redress.

• Conclusion

Despite the above efforts, we are still a long way from achieving access to justice for all without undue regard to status. Case in point, the Civil Procedure Rules of 2010 provide that a pauper may institute any suit subject to the rales provided therein.^[35] A pauper is defined as a person who is not possessed of sufficient means to enable him to pay for the fee prescribed by law for the institutions of such suit.^[36] However, such rales, as appealing as they may seem, are contradicted by succeeding provisions which provide grounds for rejection of an application to sue as a pauper. One of the grounds for rejection of such applications by the courts is where pleadings are not framed and presented in the prescribed maimer.^[37] This provision is oblivious of the fact that a poor, illiterate, uninformed or an unrepresented person does not know how to draft pleadings in accordance with the required prescriptions under the law nor is he able to secure private counsel to ensure the same. It is, therefore, prejudiced to equate the threshold of compliance of such a person to that of an advocate. After all, provisions of Article 159(2) (c) of the Constitution should come into effect in this case. Moreover, where the application to sue as a pauper is approved but the suit fails, the rales require the pauper (or the plaintiff) to cater for the fees as may be directed by the court.^[38] This brings into question the entire purpose of the provisions to sue as a pauper if such application shall only be credible if your suit succeeds.

Considering the state of paupers, many of whom are unrepresented, illiterate and uninformed, these provisions discourage many of them from instituting proceedings since they may fail- that is, if they are at all aware of the provision itself. The Order continues to provide that where an application to sue as a pauper fails, the plaintiff (or the pauper) shall be barred from any subsequent applications of the like nature as a pauper.^[39]

Advocates are also required pursuant to the Law Society of Kenya’s (LSK) Digest of Professional Conduct and Etiquette to assist poor persons who are unable to pay an advocate’s fee in the ordinary way, on a pro bono or pro deo basis. Whereas the rule goes ahead to provide guidelines on the exercise of such a mandate, such assistance is not mandatory.^[40]

It is, therefore, clear that more policy and legislative reviews need to be done to bring uniformity between the Constitution and other statutory provisions. More so, to further enhance and guarantee equal access to justice for all in Kenya, Epistolary jurisdiction, as this dissertation seeks to advance, is a credible and efficient way to provide access to justice for all, regardless of their status. This will not only enhance a culture of human rights protection and advancement but also provide a much needed for economic progress and poverty alleviation.

^[1]  Recent actions by the Government of Kenya suggests that this is still a reality even after the promulgation of the Constitution. The unconstitutional creation of various cabinet posts- that is Cabinet Administrative Secretaries- and continuous belittling of the Judiciary, dismissing court rulings and orders, and threatening members of the Judiciary has become Kenya’s new reality. Recently, the Government shutdown 3 media houses arbitrarily and refused to heed to court orders that reversed that action.

^[2]   Committee On Economic, Social And Cultural Rights, Substantive Issues Arising In The Implementation Of The International Covenant On Economic, Social And Cultural Rights: Poverty And The International Covenant On Economic, Social And Cultural Rights, (E/C.l 2/2001/1010 May 2001).

^[3]   Edward Ritci Paranta, ‘Access To Justice: Epistolary Jurisdiction as a Means of Improving Access to Justice in Kenya.’ Published Dissertation Paper, Strathmore University School ofLaw, 2016.

^[4]  J Beqiraj and L McNamara, ‘International Access to Justice: Barriers and Solutions’, Bingham Centre for the Rule ofLaw Report, International Bar Association, 2014, 14.

^[5]   Randa, John, Gubbins, Paul, ‘Kenya Economic Update: Time to Shift Gears; Accelerating Growth and Poverty Reduction in the New Kenya’, Edition No.8. Washington DC: World Bank Group.

^[6]   Section 3(b), Schedule to part IX, Judiciary of Kenya; Guide to Assessment of Court fees.

^[7]  Commission on Legal Empowerment of the Poor, Making the Law Work for Everyone, Volume 1.

^[8]   Constitution ofKenya Amendment Act No. 4 (1988).

• Justice Willy Mutunga (retired), Mr. John Khaminwa and Mr. Gibson Kamau Kuria were detained for allegedly teaching ‘subversion’, for defending a political detainee and, filing a habeas corpus application on behalf of Mirugi Kariuki, respectively.

^[10] Drew Days III Et Al, Justice Enjoined, ‘The State of the Judiciary in Kenya’, Publication of the Robert F. Kennedy Memorial Center for Human Rights, 1992, 4.

^[11] Article 16, International Convention on Civil and Political Rights.

^[12] Article 7, Convention of the Rights of the Child, 20 November 1989.

^[13] Article 53, the Constitution of Kenya (2010).

^[14] Open Society of Justice Foundation, Legal Identity in the 2030 Agenda for Sustainable Development: Lessons from Kibera, Kenya, October 2015.

^,s Open Society of Justice Foundation, Legal Identity in the 2030Agenda for Sustainable Development: Lessons from Kibera, Kenya, October 2015.

^[16] Commission on Administrative Justice Office of the Ombudsman, ‘Stateless in Kenya: An Investigative Report on the Crisis of Acquiring Identification Documents in Kenya’, August 2015.

^[17] The Judiciary, State of the Judiciary and the Administration of Justice, Annual Report [2016 -2017],

^[18] UN General Assembly, ‘Report of the Special Rapporteur on extreme poverty and human rights’, August 2012.

^[19] UN General Assembly, ‘Report of the Special Rapporteur on extreme poverty and human rights’, August 2012.

^[20] Institute of Economic Affairs, Kenya at the Crossroads: Scenarios for our Future, 2000, 10.

^[21] UN General Assembly, ‘Report of the Special Rapporteur on extreme poverty and human ri gilts’, August 2012.

^[22] Wangari Maathai v Kenya Times Media Trust Ltd [1989] eKLR.

^[23] Commission on Legal Empowerment of the Poor, ‘Making the Law Work For Everyone’, Volume 1.

^[24] Article 21, the Constitution of Kenya (2010).

^[25] Article 48, the Constitution of Kenya (2010).

^[26] The Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

^[27] Rule 3 (1), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

^[28] Rule 3 (7), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

^[29] Rule 10 (3), the Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice and Procedure Rules, 2013.

^[30] Article 22 (2) (a), the Constitution of Kenya (2010).

^[31] Article 22 (2) (b), the Constitution of Kenya (2010).

^[32] Article 22 (2) (c), the Constitution of Kenya (2010).

^[33] Article 22 (2) (d), the Constitution of Kenya (2010).

^[34] Wangari Maathai v Kenya Times Media Trust Ltd [1989] eKLR.

^[35] Order 33 Rule 1-1, Civil Procedure Rules, 2010.

^[36] Order 33 Rule 1-2, Civil Procedure Rules, 2010.

^[37] Order 33 Rule 5, Civil Procedure Rules, 2010.

^[38] Order 33 Rule 11, Civil Procedure Rules, 2010.

⁶³ Order 33 Rule 14, Civil Procedure Rules, 2010.

^[40] Rule 34, Law Society of Kenya Digest of Professional Conduct and Etiquette, 2000.