Right to legal representation in Kenya

RIGHT TO LEGAL REPRESENTATION UNDER

THE 2010 CONSTITUTION IS IT AN

ABSOLUTE RIGHT

reface

On 27 august, on the promulgation of the new constitution a new

chapter on right to a justice related rights was opened. The new

constitution sought to re orient and advance to a new level

justice related rights. The constitution recognized right to

legal aid as an integral component to a fair trial.

In my research I have gone to greater length in trying to

demystify right to legal representation and whether it’s

absolute. It would be prudent to start at the starting point

hence define what rights are, the history of legal

representation, its state under the old constitution and new

constitution, comparative analysis with other legal systems and

whether it is an absolute right.

Kenya is still crawling when it comes to constitution as it is

still at its infancy, the fruits of the provision are still being

tested by litigants, it is my firm belief that this research will

help further shed light and strike debate as to the provision of

the said right, its implementation, lacuna and gains of the right

to legal representation under the new constitution of 2010

CHAPTER ONE

INDRODUCTION

Definition of rights

By definition rights are demands or claims individuals or groups

make that are essential for individual well being, dignity and

fulfillment ,the deprivation of which may lead to great affront

to justice1.accordingly they stand above ordinary laws of the

land. This entitlements become due to every person at the

commencement of life thus the only qualification for earning them

is the act of being simply human (M Kiwinda Mbodenyi, 2012)2.

Under the 2010constitution the bill of rights is represented as

an integral part of the countries values and aspirations 3.Its

purpose being to preserve the dignity of individuals and

communities and to promote social justice and realization of the

potential of all human beings4.chapter 4 of the 2010 constitution

deals with the bill of rights

What is an Absolute right?

Absolute right falls under a category of conventional

rights.Convetional rights fall under three categories namely

1 H Laski a grammar of politics(1967)91-922 M Kiwinda Mbodenyi,J Osogo Ambani constitutional Law Of Kenya Principles Governments And Human Rights(2012)1553 Chapter 4 2010 constitution4 Article 19(2) 2010 c0nstitutotion

Absolute right

Qualified right

Limited right

Absolute rights are rights which cannot be infringed under any

circumstances5.

Qualified rights are rights which the state can lawfully

interfere with in certain circumstances. Generally in such rights

the right is stated out at the start then qualified by other

criteria. An example of such a right under the 2010 constitution

article 26 [3] a person shall not be deprived of life

intentionally except to the extend authorized

limited rights are rights which also have limits for example

under 2010 constititution6where it is stated out that every

person has a right to freedom and security and includes the right

not to be deprived of freedom arbitrarily or without course7.this

in essence shows that this is an limited right which has a limit

in that it cannot be exercised but should be in a human way and

5 www.ag.gov.ac/rightsandprotections/pages/absoluterights.aspx6 Article 29 2010 constitution7 Article29(a) 2010 constitution

not arbitral. security and includes the right not to b8e deprived

of freedom arbitrarily or without course9.this in essence shows

that this is an limited right which has a limit in that it cannot

be exercised but should be in a human way and not arbitral.

Rights absolute and nonderogable

Absolute rights are rights which cannot be limited for any reason

circumstance justifies a qualification or limitation of of

absolute rights. Absolute rights cannot be suspend or restricted

even during a state of emergency 10.our 2010 constitution

recognizes a number of absolute rights which include freedom of

conscience ,religion, belief and opinion 11,freedom of

expression12 .

Nonderogable rights on the other hand are rights which can be

suspended. International covenant on civil and political rights (ICPR) provides

for derogation power13 which allows governments to temporarily

suspend the application of some rights in the exceptional

8

9 Article29(a) 2010 constitution10www.ag.gov.ac/rightsandprotection/humanrights/publicsectorguidancesheets/pages/absoluterights.aspx11 Article 32 2010 constitution12 Article33(3)2010 constitution13 Article 4nternational conventions on civil and political rights

circumstance of a state of emergency and subject to certain

conditions including official notification. Under the 2010 Kenyan

constitution an example of a derogable includes freedom of

association14.this right is subject to certain restraints in that

the president and the police force have the prerogative powers to

outlaw association with certain groups. This can be seen in the

Mombasa republican council (MRC)15.

Certain rights are nonderogable that is they cannot be suspended

even in state of emergency. Article 4(2) of International covenant on

civil and political right16 provides that no deterrence is permitted on

I. Prohibition against retrospective right to life

II. freedom from torture or cruelty

III. freedom of thought conscience and religion17

IV. operation of criminal law

14 Article 36; article10(1)states: every individual shall have the right to free association provided that he abides by the law.15 Mombasa republican council is a separate organization based at the coastal town of Mombasa ,the group claims that Mombasa is not part of Kenya and therefore should secede, the slogan they used is “pwani si Kenya”(the coast is not Kenya. In response the government declared the group an illegal organization togetherwith 33 other groups.source.en.m.wikipedia.org/wiki/Mombasa-republican council16Article 4 of international conventions on civil and political rights17 Article 18 international covenant on civil and political rights(ICCPR)

In times of emergency which threatens the life of a nation and

existence of which is officially claimed parties in the war may

sign covenants to the extent that they are not inconsistent and

do not discriminate sorely on race, color, sex,language or

social origin18 .

Distinction between absolute rights and nonderogable rights.

Non derogable rights may either be absolute or non absolute.

Whereas nonderogable right provide for limitation in there

ordinary application for example freedom of religion19 may be

subject to limitations in accordance with article 2620 concerning

right to life. There if a religion that allows derives life from

a person in any way it will be deemed illegal. Also article 26

of the 2010 constitution protects life but 26(3) deprivation of

life that is authorized by the law is permitted. This can be

seen in the instances of abortion21

18 Article 5 international covenant on civil and political rights(ICCPR)19 Article 31 2010 constitution20 Article 26 Kenya constitution states that (1)every person has a right to life(2)that the life of a person begins at conception(3)that a person shall not be derived of life intentionally except to the extend authorized by the constitution orothe written law21 Article 26(4) state that abortion is not permitted unless in the opinion ofa trained health professional there is need for a professional treatment or the life or health of the mother is in danger or if permitted by any other written law

CHAPTER TWO

HISTORY OF RIGHT TO LEGAL REPRESENTATION

IDRODUCINTION

Legal aid has a close relationship with welfare of the state and

influenced by attitudes towards walfare.historically legal

representation has played a strong role in ensuring respect for

economic social and cultural rights. Legal aid is essential in

providing individuals with access to justice by allowing the

individual legal enforcement of economic social and cultural

rights22. This views developed service providers within market

based philosophy that emphasized on citizen as consumer23d by

Mauro cappelletti when democracies with capital economies

established liberal welfare states that focused on the

individual. States established themselves as contractors.

Historically legal aid has its roots in the right to counsel and

right to a fair trial movement of 19th century continental

European countries.inititially a duty solicitor was appointed for

22 Mauro cappelletti. Towards equal justice; a comparative study of legal aid in modern societies23regan,francis(1999)the transformation of legal aid; comparative and historical studies. Oxford university press pp.89-90

those who could not afford legal aid. The duty solicitors would

act on pro bono basis. Despite this most countries had no formal

approach to legal aid and the poor relied on charity work from

lawyers24.25

despite the fact that legal representations roots to long ago it

not until the 19th century that saw the birth of modern legal

represantion.beginning in 1808 American legal profession

expressed commitment to have free legal assistance in form if

legal aid associations.

The roots of modern right to council can be found in the case of

Werb V Baird26, the Indiana supreme court in1853 recognized a right

to an attorney at public expense for an indigent27 person accused

of a crime, this was grounded I the position a civilized society

and not in constitutional or statutory law in the obidadictum

the judge had this to say

24 Regan,francis (1999)the transformation of legal aid; comparative and historical studies oxforduniversity press p 11425 26 Webb V Baird (6 ind,13)27 Indigent-a person so poor that or she cannot provide for necessities of life, one without sufficient income to afford a lawyer.www.legaldictionery.com/indigent

“it is not to be thought of in a civilized society for a moment that any citizen Put

in jeopardy of life or liberty should be debarred of counsel because he is too

poor to respect itself to sit to hear such a trial, the defense of the poor in such

cases which will at once be conceded as essential to the accused t o the trial’’

6th amendment of the United states of America constitution states

that in all criminal prosecutions the accused should enjoy the

right have the assistance of a counsel his defense .this

position was reaffirmed in 1938 in the case of John v Zerbst28Where

the petitioner had been convicted in a federal court of felonious

possessing ,uttering and passing counterfeit money in a trial

where he had not been represented by an attorney but instead

himself, he filed for a herbals corpus 29claiming his sixth

amendment right to counsel had been violated. It was held that

since the sixth amendment entitles one charged with crime to the

assistance of algal counsel, compliance with this constitutional

mandate is an essential jurisdiction perquisite to a federal

court to deprive an accused of his life or liberty.

28 John v zerbst,304U.S. 458(1938)29 Writ of herbaus corpus is legal action that requires a person under arrest to be broughtbefore a trial court the principle ensures that a person can be released from detention-that is detention lacking sufficient cause or evidence.source-www.en.wikipediaorg.wiki/herbauscorpus.

In the 20th century most countries have pro bono efforts o to

provide f lawyers to provide defense for the accused.

The USA Supreme Court developed the 6th amendment right to legal

counsel in state proceedings gradually. in Powell v Alabama30the

court held that counsel was required in all state capital

proceedings .the reasoning in this case was that the right to be

heard would in many cases of little avail if it did not

comprehend the right to be heard by counsel, that even the

educated layman has small and sometimes no skill in the science

of law, if charged with a crime he is generally incapable

generally for determining for himself whether the indictment is

good or bad because he is unfamiliar with the rules of evidence,

left without the aid of a counsel he may be put on a trial

without a proper charge and convicted upon incompetent evidence.

He lacks the skill and knowledge to adequately prepare a defense.

That he requires the guiding hands of a counsel at every step of

the proceeding without it though he may be guilty he faces the

30 Powell v alabama287. U.S45 (1932)

danger of being convicted because heroes not know how to

establish his innocence.

When it comes to non capital offences the most significant

decision was in the case of Gideon v weinwright31 the courts position

was that an indigent person is entitled to the appointment of a

defense counsel at state expense. it reasoning was that in an

adversarial system any person hauled to court who is too poor to

hire a lawyer cannot be assured of a fair trial unless counsel is

provided for him, that government hires lawyers to prosecute and

defendants who have the money hire lawyers to defend are

strongest indications of the widespread belief that lawyers are

necessities and not luxuries. The right of one charged with crime

may not be deemed fundamental but essential to fair trial.

Four years later in Re Gault32 the Supreme Court extended to

children the same right as adults

In argersinger v Hamlin33 the court extended this right to all

misdemeanors where there was a potential of loss of liberty.

31 Gideon weinwright 372 U.S(1963)32 Re Gault 387 U.S (1967)33 Argersinger v hamlin407 U.S.(1972)

In the use efforts have been put in place to systemize and

standardize the right to indigent persons this is set out by the

national advisory commission on criminal justice standards and goals who wrote a

basic set of standards governing indigent person’s defense in

1973.

Chapter 4

COMPARATIVE ANALYSIS OF LEGAL REPRESENTATION IN KENYA

AND AUSTRALIA

Legal representation in Australia

INDRODUCTION

Australia recognizes that ac legal aid representation is an

important element in ensuring justice for all. They provide legal

aid for people assessed as not being able to afford costs of a

court case. The federal government attorney is responsible for

administering funding for provisions of legal aid and services

for federal law matters through legal aid services for indigent

persons34.

State and territory governments fund legal aid services for cases

tried under state and territory law. There are two independent

legal aid commissions in each of the states and territories.

Funding is provided for by the federal government.

34 www.dfat.gov.aufacts/legalsystem

HISTORY

Australia through its court systems has been able to develop the

principle of right to legal representation progressively. A land

mark case that portrays this is the case of Dietrich v Queen35 an

important case. It concerned the nature of rights to a fair trial

and under what circumstances indigent defendants36 should be

provided legal aid by the state.

The main argument by Dietrich was that the trial was a

miscarriage of justice since he did not have legal

representation. He argued that he would have to be provided by an

advocate at state expense.altrenativly that the judge would have

stayed or adjourned the trial until he was able to obtain

counsel.

the case determined that though there is no absolute right to

have a public funded trial, in most cases a judge would grand any

request for adjournment if the accused is unrepresented.

35 Dietrich v Queen(1992)177 CLR 292 (1992)HCA36 Indigent-defendants who cannot afford the cost of a legal trial

Australia is also a signatory of ICPR37.Article 14(3) which

requires that accused should have legal assistance provided to

them38but it has not incorporated the ICPR onto any of its

domesticated laws with any specific legislation

Although it is common for Australian courts to acknowledge

developments in other law countries, laws on right to legal

representation in other countries are based on particular

provisions of bill of rights in there respected

countries.australia does not have any provisions on rights in

either the constitution or legislation.

In analyzing whether a right to legal representation is paramount

to justice, courts always try to analyses if the accused would

have been acquitted even with full representation

37 international covenant on civil and political rights(ICCPR)38 Article 14(3) international covenant on civil and political rights(ICCPR)states that accusedshould have legal assistance provided to them in any case where the interests of justice so require

LEGAL REPRESENTATION IN KENYA

INDRODUCTION

The right to legal representation under our constitution has been

a fairly new concept. The old constitution under section

77didaccept the right to legal representation but not at the

expense of the state. However the 2010 constitution under article

50(1) provides that the state will provide for counsel where

substantial injustice will occur if counsel will not be availed.

despite the fact that this right was still at infancy stage Kenya

had ratified the international conventions on civil and political right39.despite

signing it into law.kenya did not sign the universal declaration of

human rights which recognized right to legal counsel as an integral

right and paramount to a fair trial. This amounts to it being a

soft law. This meant that this international declaration was

playing secondary to Kenyan law.

RIGHT TO LEGAL REPRESENTATIONUNDER PREVIOUS CONSTITUTION

39 The international covenant on civil and political rights(ICCPR) was passed in 1 may 1972 andsigned by Kenya in23 march 1976

Right to legal representation under the previous constitution was

allowed but not that developed. Section 77(2)40 allowed persons

charged with criminal offences to be present in court and have

legal representation of their own choice. This provision assured

a person of legal representation of his own choice. This

essential means that’s he can chose which legal counsel he wants

to represent him.

However the old constitution reserves this right to criminal

offences only. It does not state the nature of the criminal

offences in which counsel must be provided. This right is also

tasked to at the individuals’ expense and not at the states

expense. This provided a difficulty in that though it was a

right, its fulfillment was at your expense making it a preserve

of the rich. Indigent defendants could not be assured of being

provided counsel at states expense.

Legal representation then was not fully developed; there were no

legal aid clinics to help in the attainment of this right.

However there were personal initiatives through nongovernmental

40 Section 77 2 (d) every person charged with a criminal offence shall be permitted to defend himself before court in person by a legal representative of his own choice.

organizations such as law society of Kenya, law society of Kenya

kituo cha sheria and cradle Kenya to provide pro bono services to

indigent defendants. Cradle Kenya prided itself in providing

legal aid to children who cannot afford legal aid.

Only few people suspected to have committed serious offences were

offered counsel by the state, this composed of murder cases in

which the state provided legal counsel and treason. It is

important to note that these offences were only triable by the

high court after committal proceedings have been held by

magistrate’s court41 during which the accused are not represented

by the advocate where the proceedings are in the nature of

inquiries and not trials. There is a high probability of accused

making self incriminating evidence.

However not all serious offences got counsel by the state. In

offences such as robbery with violence the onus was on the

accused to find counsel for himself.

The old constitution recognized in some way that counsel was an

integral part to a fair trial but refused to recognize this.

41 Section 230civil procedure code

Under the civil procedure act cap21 order 33 recognizes paupers42

by providing procedures for pauper briefs which are free, however

free legal assistance is not assured of them. However there was a

form of state legal aid admixture by the chief justice through

the registrar and deputy registrar of the high court and court of

appeal by appointing advocates to defend accused persons who

enable to afford services of an advocate. The scheme is popularly

known as ‘pauper briefs’. However most experienced advocates

avoided taking pauper briefs because of the little monetary terms

it attracted. This was left to young advocates who were still

trying to make a name in the field of advocacy

Kenya was also a party to a number of treaties touching on right

to legal representation. Below is a table showing the treaty,

date when acceded and date when signed.43

NAME OF TREATY DATE ACCEDED DATE SIGNED

African charter

of human and

23January 1992 10 February 1992

42 Civil procedure act order 33 rule I defines a pauper as a person ‘when is not possessed of sufficient means to enable him to pay the fee prescribe by law for the plaint in such a suit43

people’s rights

Protocol on the

statute of the

African court of

justice and

human rights

4 February 2000 10 august 2000

Protocol to the

African charter

on human and

people’s rights

17 July 2003

Universal

declaration of

human rights

Not a treaty

amounts to a

soft law

Not a treaty

amounts to a

soft law

International

covenant on

civil and

political rights

1 may 1972 18 February 2005

It is important to note that under the old constitution there was

no hierarchy of laws. There was no express recognition of right

to legal representation enshrined in international treaties. In

okunda versus republic44The high court limited the sources of law in

Kenya to those listed under the judicature act45the court held

that international laws not being one of the listed sources then

was not an independent source of law unless domesticated through

either a constitutional amendment or an act of parliament,

international laws had no legal effect on the laws of Kenya. This

was also reiterated in pattni & another republic46.GITHINJI, Osiemo and

Otieno ruled that

‘‘Although those instruments testify to globalization of fundamental rights and

freedoms of an individual, it is our constitution as a law which is paramount’’

This in essence meant that international statutes which had not

been domesticated did not form part of our Kenyan law.

International statutes such as international conventions on civil

and political rights did not form part of Kenyan law hence Kenyan

courts could not refer to it

44 [1970]EA51245 Section 3(1) chapter 8 laws of Kenya46 [2001]EkLR 262

RIGHT TO LEGAL REPRESENTATION UNDER THE NEW CONSTITUTION

Under the new constitution right to legal representation was

given a new lease of life. First under article 50(h) legal

representation is not only a right but the state has been put to

task to ensure that it is guaranteed where substantial injustice

will occur.’

For the first time since independence there is the express

constitutional recognition of international laws under article

2(5) as well as treaties ratified by the state47.due to this

provision the international convention on civil and political rights which was

acceded on 1 may 1972 and signed on 23 march 1976 effectively

forms part of Kenyan law. This goes a long way in safeguarding

the right to legal representation as provided b the statute.

However it is important to note that despite there being various

provisions at the international scale on right to legal

representation, Kenya has not signed the protocol on the statute of the

47 Article2 (6)2010 constitution

African court of justice and human rights which provides window for right

to legal representation.

The constitutions position on right to legal representation can

best be summed up by Pravin Bowry 48 on mandatory legal

represention.in it he argues that legal representation in

criminal cases is purely dependant on an individual’s financial

ability, he further attests that the acquittal of kamlesh pattni

further shows how legal representation is vital to a fair trial.

That the fact that the state hires prosecution and able

defendants hire legal teams is proof that counsel is vital to

case. It is this informed position that made the right to legal

representation be entrenched in the constitution so as to

safeguard indigent defendants.

It is the duty of the state to ensure that every individual

enjoys his or her right to justice and this includes provision of

legal services to those who are likely to suffer if not provided

to them. Our 2010 constitution takes cognizance of this fact by

providing for right to a fair hearing 49.our Kenya constitution

48 Standard new paper 8 may 201349 Article 50 2010 constitution

has adopted international standards in its approach in expending

justice. Under article 50(g)50 recognizes defense by counsel of

one’s choice and being informed of this right promptly. Article

50(h) further expounds the right to a fair hearing by entrenching

the right to have an advocate assigned to the accused person by

state and at state expense, if substantial justice would

result.51

It is imperative to note that under the previous constitution52

was laden with many limitations which prevented the enjoyment of

this right to legal representation.

The attorney general’s office grants legal aid in criminal and

civil matters to civil servants who have been charged with

offences arising from their performance of official duties, this

is provided under G50 of the code of regulations made pursuant to

the provisions of service commission act.

50 Article 50(h)every person has a right to a fair trial which includes (g)to chose and be represented by an advocate and to be informed of this right promptly51 Article50(h)52 Chapter v of repealed constitution on protection of fundamental rights and freedoms of the individual

The director of prosecutions is given state powers of prosecution

and may take over and continue any criminal proceeding commenced

in any court that have been instituted or undertaken by another

person or authority53.this has been construed by some as offering

legal aid. However this is not the case as the director of public

prosecution is carrying outbids public duty which the private

prosecutor was doing on his behalf.

Fruits to this provision can be seen in David Njoroge Macharia versus

republic54 where the court of appeal affirmed that under the new

constitution that an accused person has the right to have a

lawyer provided at the expense of the state in cases where

substantial injustice would otherwise occur. Such cases that

involve complex or fact of law the court listed down some of the

instances that would involve right to legal counsel as attested

by the court included

complex issues of law

issues of fact of law

conducting his own defense

53 54 [David Njoroge Macharia versus republic 2011]eKLR

this right to legal representation was further seen in john

swakka & two others55.issue was whether failure by the state to

provide legal representation to persons charged with offence

of robbery with violence amounted to violation of rights the

court held that though there is express recognition of the

duty by the state to provide legal representation to the

accused persons in order to avoid substantial injustice,

Though legal representation is guaranteed parliament has not

yet enacted legislation that create a conducive environment

for attainment of this right56.

55john swakka & two others [2013]EKLR petition number 318 of 201156 Fifth schedule (aticle 261(1) provides a times specification of four years for legislation to be enacted by parliament on fair hearing

CHAPTER 5

IS RIGHT TO LEGAL REPRESENTATIONAN INHERENT

RIGHT

Inherent right is defined as an authority possessed without it being

derived from another.57it is also defined as an essential

constituent characteristic58.the question I sought to answer was

whether right to legal representation is an inherent right and if

lack of it in a trial amounts to a nullity of the outcome of a

trial.

One of the oldest western philosophers on rights argues that they

are a product of natural law developed by a process of natural or

social evolution59.

One of the benefits that come with the new constitution is the

constitutional protection of socio economic rights. The

difference that comes with these rights is that whereas political

rights require the heavy arm of the government to restrain from

engaging in certain activities, the latter requires the

57 Lawguidedictionery.com58 Oxford dictionary59 Advocated by David hume in treatise of human nature

government to take part in ensuring access to certain conditions.

Mostly this involves monetary implications.

Right to legal representation forms part of socio economic rights. By

nature they have monetary implications to the government

It is indeed costly to set up legal aid institutions to provide legal

aid to indigent defendants at public expense.

De Waal, Curie and Erasmus summarized their doubts in attainment of

this right

Attempts to make social, economic and cultural rights part of a constitution are usually met by

the argument that this rights are inherently non justifiable, in other words they are ill

suited for enforcement by the judiciary. It has been argued that there application

requires that courts do direct the way in which the government distributes the state

resources and is thus beyond the scope of judicial fanction.this is because the judiciary

is an elite and undemocratically appointed branch of the state. Therefore the argument

goes; it lacks the democratic legitimacy necessary to decide on division of social

resources between factions groups and communities in society.

In trying to found out whether legal representation is absolute I

found out the existence of two types of rights. Natural rights

and legal rights. Legal rights those bestowed to people b a given

legal system whilst natural right those contingent upon and

costumes of any particular government60.

According to me legal representation falls under legal representation

under legal rights, its existence is derived from the laws of the

land. This include article of 50 (h) of the institution which

guarantees right to legal counsel and international charter on

civil and political rights.

In my opinion this legal rights are derived statutes hence not

absolute right to legal representation forms part of absolute

rights.

H.LA HART argues that if there are any rights at all, they must be

right to liberty. A trial of any matter in a court of law may

amount to a person losing his liberty. Legal representation is

paramount to a person securing justice which in this sense is

securing his justice.

Article 50 (2) provides for right to a fair trial. Under article 50

(g) an accused has a right to chose to be represented by an

advocate of his and be informed of this right. My interest was in

the name chose. By definition chose is to pick out, select or

chose from a number of alternatives61.the makers of the 2010

60 En.m.wikipedia.org/natural rights61 Oxford advanced learners English dictionary

constitution were silent on the meaning of the word chose...

In my opinion I tend that to feel that the word chose tends to bring

in some confusion.choise may mean that the accused can have the

option of deciding if to have counsel or not, chose may also mean

that the accused is given the opportunity of deciding which

advocate he feels is best suited to represent him.

In stark contrast to the USA constitution the 6th amendment of the

constitution states that

‘In all criminal proceedings the accused shall enjoy the right to have assistance of legal

counsel for his defence’.this fills some of the gaps as to whether it’s

absolute. In farretta v California62the USA Supreme Court held that

defendants have a constitutional right to refuse counsel and

represent themselves in criminal proceedings.

Under article 50 (h) it states that accused have a right to an

advocate at state expense if substantial injustice would

otherwise result. To me it’s like the constitution makes the

right conditional. The conditition is that only if substantial

injustice would otherwise result. This in essence shows that

there are instances where substantial injustice would not result

62 Farretta v carlifornia(422 U.S 806 1975)

for lack of counsel in a trial. Our constitution is silent on

what substantial injustice hence still open to debate as to what

substantial injustice is.

In john swakka v director of public prosecution63 issue arose as to whether

failure by the state to provide legal benefit of legal

representation to indigent persons charged with offence of

robbery amounted to violation of rights. In the ruling it was

stated that although there is recognition of duty by the state to

provide legal representation to accused persons in order to avoid

substantial injustice there is nothing that shows that the

intention is to have it immediately or that all trials carried

without representation amounts to a nullity.

The court also recognized the implications of implementing the right

to legal representation on the taxpayer and the budget of a

government.

The Kenyan system doesn’t have a clear definition of what substantial

injustice is but under the penal code it’s a must for persons

accused of murder to have the assistance of legal counsel.

Failure to provide has occasioned to having the cases appealed

63 John swakka v director ofpublic prosecution [2012]EKLR

and have them declared 64a nullity. It is important to note that

murder trials may attract a life time imprisonment. Being given a

life imprisonment is a hefty sentence. The penal code seemed to

recognize that a life sentence is very sensitive and may amount

to substantial injustice if counsel is not provided for a person

accused of murder.

In David Njoroge mach aria v republic the court of appeal affirmed that under

the new constitution accused persons would have legal counsel at

states expense where substantial injustice would otherwise

result. Though the court of appeal didn’t define what substantial

injustice is, it gave instances where substantial injustice is a

must

cases involving complex issues of law

where accused is unable to conduct his own defense owing to

disability or language difficult

The court affirmed that under the new constitution any accused

person regardless of the crime he charged with may have assistance

of legal counsel appointed by court at state expense where court is

satisfied that substantial injustice would otherwise result.

64 David Njoroge macharia v republic [2012]EKLR

The court also found that since what substantial injustice was

ruled that provisions of international conventions to which Kenya

we signatory would be applicable.

The constitutional right of an accused to be defended by an

advocate of his own choice is not absolute; it is exercised

subjects to other public, thusit may be lost under certain

circumstances. One circumstance that may arise is where an accused

has been given ample time to engage an advocate but has failed. In

Yusuf Gitta v.R65 the accused was refused an adjournment becausehehad

ample time to do so but had failed to engage one.

Another circumstance is when an accused has been on bail and has

had adjournments in his favour but his advocate fails to show up in

the presumed hearing. In Yusuf Ahmed v. r, where the hearing proceeded

in the absence of the advocate of the accused. refusal to grand an

adjournment for a longer period does not amount to aninfringemnt of

the right of the accused to be represented by his advocate66.that

67adjournments are matters for the discretion of the trial

courts.consderation is made to the fact that adjournments may lead

65 YUSUF GITTA V R(1959).E.A 211(SCK)66 Adeidov, R67

to delayed justice hence needs for courts to strike a balance

between two competing interests68.

CHAPTER FOUR68 Criminal procedure in Kenya law momanyi bwonwong’

5.1 CONCLUSION

In conclusion based on my research the right to legal

representation under the new constitution though more developed as

compared to the previous constitution it still is not an absolute

right. Based on the definition of what absolute right is which is a

right that the state cannot waiver under any circumstance under our

constitution chapter 50(h) seems to give the courts powers to

waiver it. Though legal representation is guaranteed to all persons

accused in a court of law, for it to be availed it must be shown

substantial injustice will occur if the representation is not

provided. The constitution is silent on what substantial injustice

is. However courts have gone further and defined situations in

which substantial injustice may occur this as defined indavid

njoroge macharia v republic involve cases involving complex issues

of law and where accused is unable to conduct his own defense owing

to disability or language difficulty

.the new constitution also provided that this legal

represenatation shall be provided at state expense.this has

budgetery implications on the government.laws havenot been

developed yet providing guidelines on how this provision by the

constitution can be attained.

as much the old constitution tried to provide for this right to

legal representation it was limited with regard to whom it was

provided for. For example, only murder cases which were tried in

the high court the accused person was provided for with the

advocate at the state expense. This was because they say that it

was a capital offence punishable by death .the other cases like

robbery with violence whose punishment was to by death and was

also a capital offence tried in lower court was not given an

advocate at state expense. However with the passing of a new

constitution 2010 this right has been fully provided for as been

discussed in the above chapter3. For example if we look at the

various definition of the said right in the old

constitution ,section 77(2)(d) it provided that every person who

is charged with a criminal offence shall be permitted to defend

himself before the court in person by a legal representative of

his own choice. However if the said provision is read together

with subsection (14) we will found out that the said right did

not entitle the accused person to legal representation at the

public expense. On the other hand, if we compare it with the new

laws things seem to have improved. If we look at the new

constitution under article 50(2)(g) and (h) we will found out

that the accused person is granted both the right to be

represented by a lawyer of his own choice as well as a lawyer at

state expense where substantial injustice would otherwise result.

In addition to this, however in the context of article 50 the

right to legal aid is in criminal cases but it is not clear as to

whether this right extend to civil litigation, some efforts are

being made in the context of the new constitution create an

avenue for access to legal aid and legal services for those who

are unable to afford them. One such attempt is through the legal

Aid Bill, 2010 which is currently been discussed and drafted

under the auspices of the National Legal Aid (an awareness')

Steering Committee. The Draft Bill provides not only for grant of

legal aid in criminal matters, but also in civil and

constitutional matters as well. Therefore, provided that

litigants meet the requirements of the proposed law (such as the

income threshold and substantial chance of success) legal aid

will be available. Mediation and other out of court settlement

will also be accessible through such assistance. Another exciting

prospect about the context in this bill, is that legal aid will

be available for matters of high public interest. This means

that, if the bill is passed, public interest litigation may

receive a much needed short in the arm: those waiting to

challenge laws or actions on behalf of the public no longer need

to fear having to meet the cost of legal proceedings on their

own. Even asylum-seekers and refugees may apply for legal aid.

The bill also requires that a decision on an application for

legal aid be made without endure delay. This recognizes the fact

that the longer a potential claimant, defendant or accused person

has to wait for aid, the greater the risk that their chances of a

fair trial or hearing are prejudiced. Furthermore the Legal Aid

Commission envisaged under the bill will maintain a public list

of legal services providers who can offer legal aid to

applicants. This will assist those in need of legal aid in

quickly tracking down a nearby service provider. The bill also

makes provision for a Legal Aid Fund, which will ensure that the

Legal Aid Commission will not depend solely on the government for

the funds it needs to provide legal assistance to Kenyans. This

will not only helps secure the independence of the commission

from the state, but it will ensure that changes in government

funding do not undermine operations of the legal aid program. In

addition to this, the prosecution may decided not to bring any

changes against an accused person but if the victim then

commences a private prosecution, could this be a legitimate

expense for purposes of legal aid?

Finally, the criminal procedure code contains recently amendment

that provide for plea bargaining and victims statement. If a

victim who does not understand the dynamics of plea bargaining

seeks out legal advice when consulted about his or her

views ,would this be a legitimate legal aid expense? The same

victim may wish, if the accused is convicted, to have a victim

statement delivered on his or her behalf, perhaps because the

crime has left the victim too traumatized to personally prepare a

statement. This statement assists a court in determining the

sentence for an accused. This proposed bill if passed to law

together with the new constitution we already have in place to

me, it could be a new beginning for justice system in this

country.