Implement legislation to increase access to justice (KE0030)

Background Access to justice for the majority of Kenyans remains a challenge due to inadequate financing of key government institutions such as the National Legal Aid Service and the Judiciary which are charged with the core responsibility of implementing the Legal Aid Act 2016 and the Alternative Justice Systems Policy. As a result, it has been challenging to operationalize the Legal Aid Fund that would be critical in supporting accredited legal aid providers to conduct access to justice programmes. At the same time, the National Legal Aid Service has been severely understaffed and hence incapacitated to fully fulfil its mandate. Both the Legal Aid Act and Alternative Justice Systems are imperative as they set in place legal and policy frameworks for the promotion of access to justice in Kenya. On the other hand, the Judiciary has identified entrenchment of alternative justice systems and access to justice as a priority area of funding for the financial year 2021/2022. If the previous financial year is anything to go by, budgetary allocation was substantially reduced hence limiting the scope of access to justice work by the Judiciary. Commitment by other relevant Government institutions involved in the budgetary process is essential to ensure that adequate funding is allocated for the priority areas of alternative justice systems and access to justice. The adoption of the Alternative Justice System (AJS) Policy by Kenyans and stakeholders requires a clear understanding of informal and traditional justice systems, their mandate and how they may be used to enhance access to justice. Traditional justice systems have been used in an ad hoc manner to resolve disputes within the community. In most cases, the traditional, informal justice systems have been delinked from the formal justice systems. Before the development of AJS policy, there had been no clear standardized mechanism for co-referencing of cases from the formal to the informal justice system and vice versa. As such, injustices were perpetrated as the informal justice systems were patriarchal in nature. In addition, the decisions from the informal justice systems did not have the force of law and hence were unenforceable. Government-citizen dialogues on AJS are key for purposes of creating awareness on the policy and how citizens may use AJS mechanisms to access justice for appropriate cases. The Mombasa County Legal Aid Unit receives many disputes, some of which do not have to go to court and may be solved using alternative justice mechanisms. As a result, the Legal Aid Unit has many cases to attend to which causes delay in accessing justice and dissatisfaction from citizens looking for legal remedies. This is an opportunity to establish a much needed co-reference mechanism between the Legal Aid Unit and various AJS mechanisms in Mombasa that serves to not only reduce reliance on the Legal Aid Unit but provides a model for replication under the AJS policy. Emergency actions to contain the spread of COVID 19 necessitated the use of innovative strategies which included the use of technology to promote access to justice. COVID 19 is as much a justice crisis as it is a health crisis as the pandemic threatens to widen the justice gap, especially for vulnerable communities who have borne the brunt of the pandemic. Data from civil society legal aid providers reveals an increase in labour related disputes during the pandemic. This is due to sudden loss of employment and/or unfair termination or redundancy. In response, we propose to pilot an ICT centre in partnership with the Employment and Labour Relations Court and the National Legal Aid Service. Through this ICT centre, clients can attend court and be assisted to file documents at no cost. It is expected that both NLAS and the judiciary will use lessons learnt from this pilot and scale the initiative within their respective institutions. In using technology to expand legal aid, this commitment seeks to ensure that people seeking justice are supported to do so and are not left behind due to the digital divide.

Objectives We seek to expand Access to Justice through implementation of Legal Aid Act and Alternative Justice Systems Policy through: 1. Increasing citizen participation in justice delivery while promoting transparency and accountability in the local alternative justice structures. 2. Expanding legal aid capacity by supporting indigent clients to process online court proceedings and advocate for increased financing for legal aid services.

Status quo Legal Aid Act. A majority of Kenyans, due to an array of reasons, including socio-economic, legal and political factors, are unable to access justice. The indigent remains unaware of their legal rights, lack knowledge of the court system, or simply experience unending frustrations while seeking to access justice. Generally, many Kenyans are unable to afford the high cost for legal services. In 2019, the Hague Institute for Innovation of Law Justice Index estimated that to access court, a Kenyan needs at least USD 80. This is a modest cost considering that court fees are assessed on a case to case basis and dependent on the nature and value of the claim. Due to almost 50 percent of Kenyans living below USD1 per day, the cost of accessing justice may be unattainable. The Legal Aid Act was enacted in 2016. It provides a framework for collaboration between state and non-state actors in legal aid service provision. Further, it establishes a national legal aid scheme that is affordable, accessible, sustainable, credible and accountable among others. However, Kenya is yet to achieve the benefits of the provisions in the Act, specifically access to justice for the indigent Kenyans. Due to limited budgetary allocation, some provisions of the Legal Aid Act that remain unrealized include: the operationalization of the Legal Aid Fund for financing, accreditation of community paralegals and legal aid providers and expansion of the legal aid scheme nationwide. The Legal Aid Fund supports the expansion of the legal aid scheme by remunerating legal aid providers, paying expenses incurred by represented persons and financing general operations and development activities of NLAS. Without a Legal Aid Fund, there is limited state funded legal aid which does little to bridge the expanding justice gap. Accreditation of community paralegals and legal aid providers is essential for their supervision and oversight by NLAS as well as a pre-condition for financial support. Currently, state funding at USD 540,000 annually mainly supports administrative running costs of the 5 established NLAS offices nationwide leaving very little funding towards actual delivery of legal aid services. NLAS would require an estimated annual budget of USD 3.5 million to employ staff, both advocates and paralegals, to administer legal aid in all the 47 counties nationwide. A majority of NLAS activities are supported by development partners who are bound by time and specific targets. Principally, the legal aid scheme should be fully state funded; government funding would be more sustainable. To adapt to the justice challenges brought about by the pandemic, the government supported the establishment of a toll free line used by NLAS to administer legal aid services. In addition, NLAS put in place desktop computers with internet access to support clients who needed to attend online hearings. However, this was just the case for Nairobi. In areas outside of Nairobi, status of legal aid delivery, beyond the toll free line remains uncertain. With additional funds, NLAS will be able to put in place nationwide mobile legal aid clinics, with internet access operated by paralegals to support clients attending to their matters. This is needed now more than ever as face to face hearings in court remain very limited. Further, under the collaborative spirit of the Legal Aid Act, NLAS may work together with civil society organisations that have support systems for clients to access justice through the use of technology. Alternative Justice Systems. Kenya is one of 3 countries in the world that has formalised its traditional and other informal mechanisms used in accessing justice. One consequence of access to justice problems in the formal legal system is that many Kenyans resort to alternative systems of justice, such as mediation processes facilitated by paralegals and community-based traditional justice systems. A survey by the Judiciary, together with the Hague Institute for Innovation of Law found that only 10% of Kenyans use the formal justice system to resolve their disputes. Alternative justice processes help to reduce the burden on courts and are meant to strengthen the links between formal and informal justice systems rather than replace the reliance on courts. In some areas, such as Northern Kenya, informal justice systems have almost replaced the formal justice system, also in dealing with criminal offences. However, there is an amount of interplay between the formal and informal justice systems, evident for example from the fact that community leaders who serve in informal justice systems can refer serious crimes cases to the ordinary courts. The courts have also embraced the interplay with the informal justice system through court led mediation such as that which exists in Isiolo court where the court keeps a roster of council of elders. The court refers cases to the elders for determination and later recording of judgments and this is bearing fruit thus enhancing and expanding access to justice at the community level. Kenya’s Alternative Justice System (AJS) Policy proposes a legal framework that systematizes the use of various AJS models whilst linking the informal and formal justice systems. During the pandemic the inaccessibility of justice for indigent litigants has been exacerbated by the use of technology in court processes. AJS presents an accessible platform for indigent clients to access remedies for their disputes within an informal space recognised by law. The judiciary’s priority area for funding in the financial year 2021/22 -2023/24 identifies the entrenchment of various alternative justice systems models and improving access to justice as key priority areas. In the past financial year 2018/2019, Judiciary had been allocated USD17.3 million but was further slashed down to USD14.5 million by Parliament through the Appropriation Act. There is a real fear that this situation may be repeated given that 2022 is an election year with competing interests from various government agencies. This will affect the implementation of the AJS policy and by extension meaningful access to justice for a majority of Kenyans.

Ambition We seek to pilot the implementation of the Alternative Justice System Policy in Mombasa County and share lessons learnt with the broader Judiciary. The AJS policy presents an accessible model for timely and efficient resolution of disputes for a majority of Kenyans who still cannot access the formal courts. Furthermore, through the OGP platform, we seek to leverage the use of technology to facilitate access to justice for clients who do not have access to internet services. We seek to pilot the ICT centre in collaboration with NLAS and the Employment and Labour and Relations Court with the aim of sharing lessons learnt for replicability in other court stations. To fully realize the benefits of access to justice, either through the AJS policy or the Legal Aid Act, we intend to advocate for the operationalization of the Legal Aid Fund and the increase in budgetary allocation for Judiciary’s priority areas of entrenching the use of AJS models and improving access to justice.

No. Verifiable and measurable milestones to fulfill the commitment Status of milestone Start Date End Date 1. Conduct citizen-government dialogues on AJS New March 2021 December 2022 2. Enhance co-referencing of cases between the Mombasa Legal Aid Unit and AJS Mechanisms New March 2021 December 2022 3. Work with relevant institutions to provide adequate funding for the implementation of the AJS Policy and the operationalization of the Legal Aid Fund New March 2021 December 2022 4. Set up one Virtual Court Centre in collaboration with Kituo’s ICT Centre and build the capacity of indigent self-representing clients to use technology in accessing the Employment and Labour Relations Court in Milimani, Nairobi New March 2021 December 2022 5. Benchmark with other OGP global justice actors using technology to promote access to justice New March 2021 December 2022