Whereas
article 48 of the constitution of Kenya guarantees access to justice for all
persons, which entails the recognition
of individual rights, creation of awareness of fundamental rights as well as enhancing
easy access to information on the enforcement of such rights and also the
protection of those rights, availability and access to legal representation
which has a substantive bearing on ensuring access to justice has been and
still is yet to be well addressed.
The
significance of legal representation is entrenched in article 50(2) (g&h)
of the constitution which provide that an accused person has the right to
choose & be represented by an advocate & that if substantial injustice
would otherwise result, the state should assign an advocate to an accused
person at its expense. Moreover to underscore the importance of representation
and effective communication in court, article 50(7) provides that a court may
allow, in the interest of justice, an intermediary to assist a complainant or
an accused person to communicate with the court.
The above
mentioned provisions however contextually conduce towards aiding accused
persons in criminal matters whereas it’s not clear whether such rights extend
to civil litigation, thus leaving litigants in civil matters to their own
means. Also, it’s not clear as to the threshold for prima facie substantial
injustice[1];
whether it be based on the complexity of legal and factual issues involved or
whether such is determined owing to the nature of the offence. This will only
mean that most litigants in criminal matters not meeting the threshold will
require to secure their own means o representation while also suggesting that
litigants in civil matters may not receive any legal representation from the
state. Thus legal representation as a means of access to justice has to be
addressed and policies be laid down to further enhance it.
This paper
uses pro se (self- represented)
litigation as an illustration of unavailability and lack of access to legal
representation and seeks to outline the factors affecting the availability and
access to legal representation, the impact of pro se litigation on access to justice; a case of Milimani
Commercial Courts, Nairobi, as well as to explore the possible ways it can be
addressed towards access to justice.
FACTORS
AFFECTING AVAILABILITY AND ACCESS TO LEGAL REPRESENTATION
Section 9 of the Advocates Act
provides that no person shall be qualified to practice as an advocate unless he
is admitted as an advocate and has in force a practicing certificate. However,
not all persons are able to access the services of advocates owing to a number
of factors including:
- Geographical barrier
- Lack of resources
- Lack of trust in the legal system
- Limited awareness
Geographical barriers affect access to
legal representation hence access to justice in the sense of the physical legal
infrastructure, specifically, the location and availability of courts in a
given geographical setting which in turn affect the distribution of legal
practitioners. The Kenyan law courts are majorly situate in major towns hence
dictating the availability of advocates by limiting them to practice in the
given towns. This makes it difficult for a client to be able to access their services
whenever handling disputes hence straining access to justice.
The affordability of the adjudication
engagement is another factor. The Advocates remuneration order provides a scale
for billing clients making it an offence[2]
for advocates to charge less. Some of these charges are often too high for most
litigants thus in turn making the reception of quality services a preserve of
them that are able to pay for them. Further, this makes pursuit of justice an
expensive venture too costly for one to seek redress or if one does go to
court, to proceed unrepresented, thus placing him in a vulnerable position with
a high possibility of an unfair outcome.
Lack of Public confidence in the judiciary and the
legal system in general though showing signs of improving caused few people,
if any, to trust the courts in handling their disputes. The notion that justice
was up for auction to the highest bidder greatly impacted on the trust for the
courts as well as for the advocates as some were seen as extortionists. This made
people not to approach the courts and if they did, to proceed unrepresented
thus lacked knowledge of the law and procedure as well as of the need for legal
representation hence greatly inhibiting access to justice.
Also, lack of awareness of individual rights
as well as available means of seeking redress and more so the lack of
information on the need for legal representation greatly cost the general
public in that, injustice would be perpetrated with impunity and if such cases
were taken to court and the aggrieved party proceeded undefended, the cause of
justice would be easily defeated.
These and
more factors made it difficult for litigants to access legal representation
hence greatly prejudicing the chances of success of suits thus undermining
access to justice.
IMPACT
OF PRO SE LITIGATION ON ACCESS TO
JUSTICE: A CASE OF MILIMANI COMMERCIAL COURTS; BETWEEN 7TH MAY, 2012
& 29TH JUNE, 2012
Most
litigants opt to represent themselves on grounds of majorly being indigent whereas
some do it out of lack of information and or awareness of the need for a legal
representative. Reports have shown a lesser number of successful pro se cases as compared to those in
which parties were represented while at the same time revealing that a greater
number of appeal cases involve a party who acted in person. Hence the need to
review the impact pro se litigation
has on a number of actors in the judicial system.
a) Impact to the Courts
The courts shoulder the burden of
self-represented litigants through:
- Non-compliance with court orders[3] and procedure[4] thus infringing on the rights of other parties and hindering access to justice and delaying the expedient handling of cases.
- Wastage of the courts time while the judicial officer takes time to explain rules of procedure and evidence to the pro se litigant as well as through constant adjournments by the court to allow compliance to procedure by the litigant[5].
- Increased backlog of cases as most pro se litigants flood the courts with all types of cases without legal advice and moreover a lot of appeal cases hail from cases by self-represented litigants.
b)
Impact to
the Litigant
The self represented litigant on
the other hand may experience
- Unfairness in procession of undefended causes and the entry of judgment in default of their attendance for failure to understand court orders[6].
- Failure to interrogate evidence tendered and to oppose applications made to the court for ignorance as such allowing unauthenticated evidence and unconscionable applications to occasion unfairness[7].
- His case being struck out for being vexatious or being dismissed for filing it in a court lacking jurisdiction hence occasioning delay in accessing justice.
- Unprocedural filing of cases beyond the limitation of actions period hence possible failure to access justice.
- Difficulty in making legal decisions hence risking making mistakes with far reaching consequences.
c)
Impact to
Other Litigants
As a result
of limited knowledge on court procedure and rules of evidence, self-represented
litigants usually take long time trying to explain themselves and at times lack
the requisite evidence at the event of trial thus forcing the court to explain
procedure and occasionally adjourn in the interest of justice to allow them
time to file documents & serve as well as presenting evidence. This greatly
takes up the courts time and increases costs for the represented party as well
as preventing the court from hearing other matters before it due to time
factors.
ADDRESSING PRO SE LITIGATION AS A MEANS TOWARDS INCREASING ACCESS TO JUSTICE
Whereas the
geographical factor affecting access to legal representation can be addressed
by increasing the distribution of courts to most accessible regions as well as
providing facilities to facilitate effective service delivery and to encourage
advocates to venture into the said regions and provide legal services, the
other factors can only be addressed by addressing ourselves to the problem of pro se litigation.
a Provision of Legal Aid and Establishment
of Pro Bono Institutions
To address
the problem of pro se litigants and
to further access to justice, there should be established a national legal aid
service to administer a national aid system that is affordable, accessible,
sustainable, credible & accountable[8].
This will serve to promote, guide and supervise the establishment & working
of legal aid services in universities, colleges & other institutions as well
as approving and regulating legal aid service providers & Pro bono
institutions to enhance credibility and accountability[9]. It
moreover will be able to manage any funds given in aid for the services for
payment of honoraria to pro bono advocates.
This will
greatly equip pro se litigants to
represent themselves as well as ensuring representation through pro bono
advocates as well as from various accredited persons and organizations hence
further access to justice.
b) Making the Court System & Procedures
User-Friendly
Generally,
court systems are not designed to serve self-represented litigants hence most pro se litigants are usually at pains
with procedure and moreover fail to understand the importance of legal representation and often grapple with
seeking information from the court staff who themselves may lack legal
expertise to advise appropriately and are moreover bound by ethical
expectations of impartiality and desisting from unauthorized practice of law.
The courts
should adopt and create desks for pro se
clinics & or legal aid clinics within the court premises to help pro se litigants by providing them with information
through for instance brochures outlining the risks and responsibilities of
proceeding unrepresented as well as providing them with pro se guides and handbooks to provide them with information on
best practices in pro se litigation.
Moreover, the courts should provide simplified forms specific for pro se litigants to ease their
comprehension and compliance.
c) Utilization of Technology
Advertisement
of services by advocates was sanctioned in the case of Okenyo Omwansa George and Another
v The Attorney General and two others and was aimed at ensuring the
availability of legal services offered by the advocates and to ensure access to
information by the general public as well as enabling them make informed
choices[10]. Advocates
should hence advertise their services to the public even though the social
media thus ensuring the creation of awareness and to further access to justice
for all persons.
Moreover,
the use of internet should facilitate the provision of unbundled legal services
such as online discussions, calls, and consultations through video chats as
well as the conduction of research on legal issues upon request. Additionally,
it can also provide free services such as the development of self-help websites
to provide information to pro se
litigants as well as containing requisite documents and court forms for filling
and for download.
d) Legislation
The law
should also be developed so as to further access to justice through the
provision of legal representation.
The current
draft legal aid bill should be passed into law to be able to increase access to
legal aid by indigent persons through the formation of a national legal aid
body, the provision of a legal aid fund as well as the involvement of legal
scholars and paralegals in the provision of legal services.
Moreover, in
the spirit of the provision of article 22 (3) of the constitution, the court
procedures should be revisited to make provision for alternative procedure for
self-represented litigants without prejudice to the represented ones.
Also, the
current constitutional provision on the right to counsel[11]
should be extended to cover litigants in civil proceedings given most pro se litigation is largely on family
law issues.[12]
Furthermore,
the requirements for renewal of practicing certificates under section 22(b) of
the advocates act should include evidence of the number of pro bono cases
handled by the advocates so as to ensure that the advocates too have a heart
for community rather than just for self and to further access to justice.
e) Alternative dispute resolution
Lastly, the
litigants should be encouraged to try alternative dispute resolution rather
than approach the courts for every dispute. This though it may not increase
access to legal representation will further access to justice for all persons.
CONCLUSION
To further access
to justice for all persons as envisioned under article 48 of the constitution
requires that basic elements of access to justice be looked into and further
that they be provided. Such elements include access to legal representation
which has a great bearing on the cause as well as the efficient delivery of
justice. For the problem of legal representation to be addressed, factors
affecting availability and access have to be outlined and the impacts
considered. This will aid in addressing the problem by addressing causal
factors as well as redressing resultant factors, such as the emergence of pro se litigants. Once this is achieved,
there will be increased access to legal representation, increased ability of
pro se litigants to represent themselves thus fostering access to justice for
all.
References
Judicial
Attachment Log Book
The
constitution of Kenya, 2010
The
Advocates Act, Cap 16
The Draft
Legal Aid Bill, 2012
Strategic
plan of the Kenyan judiciary (2009-2012)
Voelke. J: “Meeting the Challenge of Pro se Litigation in Wisconsin”
Concept
Paper-Kenya: Strengthening Access to Justice in Eastern Africa (SAJEA) Program
[1] Article
50 (2) (h) Constitution of Kenya
[2] Section
36, Advocates Act Cap 16, Laws of Kenya.
[3]Case
8468/09 Patrick Gitau Maingi v Embakasi Ranching Company and others
(18/5/2012): The self-represented second defendant was reported to have been
interfering with the suit property contrary to the interim injunctions issued.
[4] Case Ej
400/01 Francis Kuria Karu v Nembu Farmers Co-operative Society Limited
(16/05/2012): The pro se defendant
was reported to have occasionally failed to comply with Order XI of the Civil
Procedure Rules.
[5] Case
3354/09 Paul Mbwili Munyao v Golden Harvest Mills (22/5/2012): The
Self-represented plaintiff had had an industrial accident. The court explained
to him the procedure of prosecuting his case and finally had to adjourn to
allow him produce the doctor to submit his medical report.
[6] Div
82/12 G.M.N v J.N.M (31/5/2012): The cause was undefended and counsel asked for
a date for hearing and possible entry of judgment in default of attendance on a
priority basis.
[7] Case,
6873/04 James Kyalo v Edward Gichuki Njoroge (7/6/2012): There was no
appearance on behalf of the defendant hence the evidence was taken in his
absence and a date set for submissions. Also case 1334/04 KAM Pharmacy v
Medical Express Kenya (23/5/2012): The plaintiff’s application was allowed in
the absence of the unrepresented defendant upon production in an affidavit of
service.
[8] The
Draft Legal Aid Bill, 2012.
[9] For
instance The CRADLE – The Children’s Foundation that provides pro bono services
to indigent children and The National Legal Aid and Awareness Programme aimed
at ensuring access to justice for the poor through legal aid and creation of
awareness.
[10]
Constitution, Article 46 (1) (b) & 48
[11] Article
50 (h)
[12] See,
Kelly v Warpinski: where 11 judges in Wisconsin filed an amicus brief to move
the Supreme Court to extend the right to counsel to civil litigants.
