Consider the poor in legal representation

High-quality legal representation in Kenya, as it is in other parts of the world, is expensive and sometimes inaccessible. It is one of those needs that the poor can only dream of even when faced with serious legal challenges that end up being adjudicated in courts of law.

Contrary to common thought, access to quality legal representation isn’t a privilege reserved for the rich and the mighty but a right enshrined in our Constitution as well as international treaties ratified by Kenya, to be enjoyed by everybody.

Article 52 of the Supreme Law gives accused persons the right to be represented during the trial process. For how else can a judgment be pronounced fair when one party has superior legal counsel at their disposal and the other has none? How can an officer of the court charged with interpreting the law be satisfied that his or her judgment was fair when one party had only limited legal representation?

The right to legal representation shouldn’t just be limited to persons accused of a crime but also to persons or communities faced with evictions, communal or domestic violence or who may need to sue the government for failure to uphold their constitutional rights. It is against this background that Amnesty International Kenya, the East African Centre for Human Rights (EACHR) and the Law Society of Kenya (LSK) set up the Economic, Social and Cultural Rights (Ecosoc) Lawyer of the Year Awards started three years ago.

The aim was to honour and celebrate pro bono lawyers who have excelled in litigating economic, social and cultural rights. Through this, we also had expectations of attracting more lawyers and relevant institutions to support the cause.

I cannot emphasize enough the importance of Pro Bono legal services in the realization of economic and social rights. Many cases have been lost not because of the merits or demerits of the suit but the absence of competent and consistent legal representation.

In fact, some cases never come before the courts because the affected persons do not even know where and how to begin. They may not even realize they are entitled to certain rights and can win cases against the authorities if they challenge them in courts of law.

Today, I urge the Kenyan people, but particularly government agencies responsible for implementing people’s rights, to be alive to the continued violation of economic, social and cultural rights. These are the rights that we all need in our daily life – health, education and housing. They are not options to be protected and fulfilled at the whim of the state but are as fundamental as the rights to free expression or liberty.

In the end, everyone is affected where such rights are violated. Injustice anywhere is injustice everywhere. Successful legal action can also act as a strong deterrent placing violators on warning that similar acts in the future will not be tolerated and that they will be held to account. A society without the rule of law is one built on sand.

To ensure the provision of consistent, competent and timely legal representation, the national and county governments need to budget for resources to aid legal clinics and support pro bono lawyers and institutions that offer free legal counsel.

When communities are aware of their economic, social and cultural rights and are confident enough to challenge those who would violate them, they would be better equipped to protect and increase their wealth, demand for better governance at all levels, follow up on use or misuse of taxpayers’ money and speak out when hospitals and schools lack the basic necessities.

The result is a better society where human rights are safeguarded and leaders are conscious of the fact that they hold public offices at the pleasure of the people. Secondly, we need lawyers, Advocates of the High Court and indeed the more than 6000 members of LSK to come forward in the spirit of nationhood to offer free legal services to the poor and marginalised through a structure such as that initiated by Amnesty, EACHR and LSK.

Every member of LSK should commit to participate in at least one pro bono piece of work per year. As we create increased legal awareness, these services could translate into respectable brands and increased legal work for lawyers. Thirdly, we urge the Attorney General to be more proactive in providing legal advice to state agencies. This could minimize cases where state agencies put communities and individuals through social, economic and cultural rights distress when an amicable solution could have been obtained by simply sticking to the letter and spirit of the law.

After all, Article 48 of the Constitution provides that the State shall ensure access to justice for all.