An introduction to paralegal services in Kenya

More than 48 per cent of Kenyans live on less than Sh95 a day, and therefore cannot access legal services nor effectively manage their court cases due to high legal and court costs and legal illiteracy.   Kenya adopted its new Constitution in 2010.  The Constitution of Kenya provides for right to access justice under article 48 and right to free legal services where one faces a criminal justice process in article 48 and 50 respectively.  Yet there is a general lack of resources and funding in the judicial sector, and a lack of confidence in the legal system.  Government and police sectors are frequently reported as corrupt.   The Constitution further enshrines the need for legal aid by requiring that an accused should be assigned an advocate by the state and at state expense, if substantial injustices would otherwise result, and to be informed of this right promptly.  The Bill establishes a legal and institutional framework for delivery of legal aid services in Kenya and further proposes the decentralization of legal services to the counties and sub counties in conformity with Article 6(3) of the Constitution on access to services.  Solicitor General Njee Muturi said the draft Legal Aid Bill 2013 developed by the National Legal Awareness Programme could also see awareness campaigns intensified.  This would reduce the number of cases that end up in courts due to ignorance of the law and inform suspects of their rights.   A Baseline Survey on Status of Legal Aid in Kenya, 2011, noted a huge gap in legal aid services justifying the establishment of a structured, accessible and independent legal aid scheme for the needy, poor, marginalized and the vulnerable population.

Prior to the Legal Aid Act, advocates were only provided at state expense for murder trials.  Even after the 2010 Constitution, judges have refused to enforce the provision about advocates at state expense beyond murder cases. They have said – rather unconvincingly – that we needed to wait for a law. Maybe the judges were shying away from what they thought was too tough a task for the courts: working out when not having a lawyer would cause “substantial injustice”, and from the problem that legal aid is inevitably expensive.

To institutionalise the provision of legal aid in Kenya, the government of Kenya developed a National Legal Aid (and awareness) Programme, NALEAP.  NALEAP is made up of the national steering committee, the secretariat, and pilot project steering committees.   The national steering committee is made up of representatives from the following institutions: Ministry of Justice, Law Society of Kenya (LSK), Federation of women Lawyers (FIDA) Kenya, Police, Prisons, Probation and After Care Services Children’s departments, International Commission of Jurists (ICJ) Kenya, Kenya National Commission on Human Rights (KN CHR), Paralegal Workers Association, Judiciary, Public Universities, State Law Office and three representatives from the civil society.

To get legal aid a person must be resident in Kenya, and be either a child, citizen, refugee, or trafficked or stateless person. A non-citizen adult accused of a crime, and who is not a refugee or stateless, could not apply.  This is an arguable contravention of the new broad Kenyan Constitution.

The Legal Aid Act defines “accredited paralegal” as meaning a person accredited by the service to provide paralegal services under the supervision of an advocate or an accredited legal aid provider; and includes quite a broad reading of legal aid: “legal aid” includes —

  1. legal advice;
  2. legal representation;
  3. assistance in —
    1. resolving disputes by alternative dispute resolution;
    2. drafting of relevant documents and effecting service incidental to any legal proceedings; and
    3. reaching or giving effect to any out-of-court settlement;
  4. creating awareness through the provision of legal information and law-related education; and
  5. recommending law reform and undertaking advocacy work on behalf of the community;

A person shall not receive legal aid services unless the Service has determined that the individual’s financial resources are such that the person is eligible for the services.

According to the African Centre of Excellence for Legal Empowerment in Africa Feasibility Study:

“The Bill also states that accredited paralegals, whether employed by the National Legal Aid Service or an accredited legal aid provider, may provide legal advice and assistance, but only for free.  A paralegal under the Kenyan draft law is therefore an accredited person who is not a qualified lawyer, but who has completed compulsory training and provides free legal aid and assistance, under the supervision of a lawyer. The Bill also provides that exceptionally, in jurisdictions where there are no legal aid providers, an “intermediary” may provide legal advice and assistance in civil and criminal matters, but only for free.  However, since paralegals are legally defined as legal aid providers, they cannot fulfil the role of “intermediary”. This is one of the several inconsistencies in the Kenyan Legal Aid Bill.”