KENYATTA UNIVERSITY

BACHELOR OF LAW DEGREE

LPL 401 A: DISSERTATION WRITING

UNFAIR CRIMINAL TRIAL: ANALYSIS OF HOW NON-LEGAL REPRESENTATION

OF ACCUSED AFFECT ACCESS TO JUSTICE IN KENYA

VIVIAN AMARAKET KARANI

L95/1771/2019

A RESEARCH PROPOSAL SUBMITTED IN PARTIAL FULFILMENT OF THE

DEGREE OF BACHELOR OF LAWS [BACCALAREUS LEGUME (LLB)] OF
KENYATTA UNIVERSITY

Date of submitting: 13th December 2023

 DECLARATION

I, VIVIAN AMARAKET KARANI, declare that this research is an original piece work that has
not been submitted for the award of any degree whatsoever in any University or institution of
legal education training, and all the sources relating to this thesis have been duly acknowledged.

NAME: VIVIAN AMARAKET KARANI

REG NO: L95/1771/2019
Signature……………………………. Date……………………………

i
DEDICATION

To the almighty God, for His grace and love that knows no bounds.

To Mr. and Mrs Karani, for their prodding, patience, understanding, and for being my greatest
cheer leaders.

To uncle Patrick, uncle Ekisa and Mame Wema Luvumbi for inspiring my career choice, for
being the shock absorbers between the socio-economic setbacks of my youthful life and pursuit
of academic excellence.

ii
ACKNOWLEDGEMENT

The Almighty God for His Faithful and unbound love and grace.

Professor Tomaz Milej, working under his supervision in various project has really shaped my
research and advocacy skills. Am forever indebted.

Omai, Amoit, Itieng’, Ailel and Jabari, am who I am because you believe in me and to some
extent you are the reason for my handwork. My heart felt gratitude.

iii
 Table of Contents

DECLARATION........................................................................................................................................i

DEDICATION...........................................................................................................................................ii

ACKNOWLEDGEMENT........................................................................................................................iii

ABSTRACT............................................................................................................................................vii

CHAPTER ONE........................................................................................................................................1

1.0 INTRODUCTION OF THE STUDY..................................................................................................1

1.1 BACKGROUND OF THE STUDY....................................................................................................2

1.2 STATEMENT OF THE RESEARCH PROBLEM.............................................................................3

1.3 OBJECTIVES OF THE STUDY.........................................................................................................4

1.4 RESEARCH QUESTIONS.................................................................................................................4

1.5 RESEARCH OBJECTIVES................................................................................................................5

1.6 SIGNIFICANCE OF THE STUDY.....................................................................................................5

1.7 HYPOTHESIS.....................................................................................................................................5

1.8 THEORETICAL FRAMEWORK.......................................................................................................6

1.8.1 Theory of justice...........................................................................................................................6

1.8.2 Social contract theory...................................................................................................................7

1.9 RESEARCH METHODOLOGY.........................................................................................................7

1.10 LIMITATIONS OF THE STUDY.....................................................................................................8

1.11 CHAPTER OUTLINE.......................................................................................................................8

2.0 LITERATURE REVIEW..................................................................................................................10

2.1Introduction.....................................................................................................................................10

2.2 Writers and report review..............................................................................................................10

iv
 2.3 conclusion......................................................................................................................................13

CHAPTER THREE: KENYAN CONTEXT...........................................................................................14

3.1 LEGAL AND INSTITUTIONAL FRAMEWORK......................................................................14

3. 1.0 Legal framework........................................................................................................................14

3.1.1 International instruments............................................................................................................14

3.1.2 Regional Instruments..................................................................................................................15

3.1.3.0 DOMESTIC PROVISION...........................................................................................................16

3.1.3.1 The constitution.......................................................................................................................16

3.1.3.2 Legal aid statute.......................................................................................................................17

3.2 .0 Institutional framework..................................................................................................................17

3.2.1 National Legal aid service..........................................................................................................17

3.2.2The Kenyan court.........................................................................................................................18

3.3 Right to legal representation on the ground.......................................................................................18

3.3.1DENIAL OF THE RIGHT TO LEGAL REPRESENTION........................................................18

Conclusion...............................................................................................................................................20

BIBLIOGRAPHY....................................................................................................................................21

LIST OF STATUTES..............................................................................................................................21

NATIONAL STATUTES.............................................................................................................................21

LIST OF CASES..................................................................................................................................21

BOOKS................................................................................................................................................21

JOURNAL ARTICLES.......................................................................................................................22

REPORTS AND POLICIES................................................................................................................22

INTERNET SOURCES.....................................................................................................................23

v
vi
ABSTRACT

Right to legal representation is a fundamental right in ensuring a fair trial for the accused. Due
to the equality of arms principle, an unrepresented accused is already at a disadvantage in the
adversarial court system when trying to make his case against the prosecution. According
Articles 48, 50(2)(g), and (h), Kenya is required to implement the right to counsel. To uphold
this right the criminal justice system depends on the state, police, judges, attorneys, and
paralegals. The study compares the circumstances in Kenya to those in the United Kingdom and
South Africa in order to draw conclusions on how the state treats the right to counsel for the
unrepresented accused. As seen in the case studies, Kenya must act to satisfy the unrepresented
accused's right to legal representation in order to ensure that their right to a fair trial is
recognized and upheld. This can be done by putting the Legal Aid Act 2016 into practice.

vii
 CHAPTER ONE

1.0 INTRODUCTION OF THE STUDY

Criminal proceeding in Kenya is commenced by way of complaint then the suspect is arrested
and brought before the court.1 The criminal procedure stages are crucial and the court
terminology to an ordinary maybe Greek making it hard to understand. 2 Therefore, to ensure fair
trial during criminal proceeding, right to legal representation has to be observed and respected. 3
The effect of non- legal representation was well brought out by Lord Justice Denning in the case
of Pett v. Greyhound Racing Association when he stated that:
“It is not every man who has the ability to defend himself on his own. He cannot bring out
the points in his own favor or the weakness in the other side. He may be tongue-tied, nervous,
confused or wanting in intelligence. He cannot examine or cross-examine witnesses. We see it
every day. A magistrate says to a man: ‘you can ask any questions you like;’ whereupon the man
immediately starts to make a speech. If justice is to be done, he ought to have the help of
someone to speak for him; and who better than a lawyer who has been trained for the task.” 4
As a result, he concluded that the help of counsel enables best articulation of the unrepresented
accused's defense and uphold a fair trial throughout criminal procedures.
In ensuring fair trial for the accused, a nation must strike a balance between the interests of the
victim and the public.5 This is effectively realized through counsel who should be accorded at the
earliest possible stage of criminal proceedings.6
Through the analysis of the right to legal representation the role of each stakeholder, such as the
police, judges, lawyers, paralegals, in securing this right for the unrepresented accused is bought
7
out. This research investigates how Kenya, as expected by international standards, actualizes

1
Criminal Procedure Code (Act No. CAP 75) of 2012 , s 89(a)
2
Ibid Criminal Procedure Code (Act No. CAP 75) of 2012, Part VI

3
Zhang J, ‘Fair Trial Rights in ICCPR’,(2009) 2(4), Journal of Law and Politics, 39

4
Pett v Greyhound Racing Association (1968) ECA
5
Kiage P, ‘Essentials of Criminal Procedure in Kenya’,(2004) Law Africa, Nairobi, 2.
6
United Nations Office on Drugs and Crime, ‘Early access to legal aid in criminal justice processes: a handbook
for policymakers and practitioners, Vienna 2014, 3.
7
Ibid [no.6],95

1
the right to legal representation in comparison with the United Kingdom and the Republic of
South Africa.

1.1 BACKGROUND OF THE STUDY

The right to legal representation is recognized internationally in international instruments.
Having ratified the international instruments, Kenya has obligation to respect, protect, promote
and fulfill the human right of which the right to fair trial is part.8
Regionally, the right of accused to be heard is fulfilled when the individual enjoys the right to
counsel of his choice.9 Furthermore, the party state to the Principles and Guidelines on the Right
to a Fair Trial and Legal Assistance in Africa are required to ensure there are mechanisms for
operational and availability of lawyers. It also outlines that access to lawyers should be equal to
all and should be provided to both the complainant and the accused without discrimination.10

Kenya, a signatory to both conventions,11 has an international obligation to adhere to such

standards. The Constitution of Kenya (2010) respects and protects the right to a fair trial of the
accused, including right to legal representation, which is unlimited. 12The right to counsel is a
constituent of the right to a fair trial.

Without a doubt, the right to legal representation is the most comprehensive right of all the rights
that an accused person has. Consequently, various international, regional legal documents and
domestic provisions have come up with provisions, which help to guarantee the right to legal
representation. Though the existing legal framework expressly provide for the right to legal

8
The Constitution of Kenya, 2010, article 21

9
African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 U.N.T.S. 217,article 7

10
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, 7,par g, h
11
Malombe D Mavenjina Medi Mbataru S, ‘Kenya’s Regional and International Human Rights Obligations’,Kenya
Human Rights Commission Publications, 23 August 2016, 1-17. https://www.khrc.or.ke/mobilepublications/
economic-rights-and-social-protection-er-sp/126-kenya-s-regional-and-international-human-rightsobligations/
file.html (accessed on 12 December 2022.)
12
Ibid [no.8] art.25

2
representation Kenya has not fully fulfilled its obligation to respect and promote this right. This
research investigates how Kenya, as expected by international standards, actualizes the right to
legal representation for the unrepresented accused in comparison with the United Kingdom and
the Republic of South Africa.

1.2 STATEMENT OF THE RESEARCH PROBLEM

Internationally, Universal Declaration of Human Rights (UDHR) recognizes the right to fair as a
fundamental right requiring an accused to have all guarantees required for his defence. 13
International Convention of Civil and Political Rights (ICCPR) guarantees all persons legal
assistance where there is an interest of justice and freely available where an individual cannot
afford.14
Additionally, the African Charter on Human and Peoples’ Rights (African Charter) provides that
the right to be heard is guaranteed when the individual enjoys the right to counsel of his
choice.15The African Charter further made the Principles and Guidelines on the Right to a Fair
Trial and Legal Assistance in Africa, which required party states to ensure there, were
mechanisms for operational and availability of lawyers. It also provides that access to lawyers
should be equal to all and should be provided to both the complainant and the accused without
Discrimination.16
Kenya has ratified conventions,17 hence has an international obligation to adhere to such
standards. The Constitution of Kenya (2010) provides the right to a fair trial of the accused,
including right to legal representation, which is unlimited. 18 The right to counsel is one of the
components of the right to a fair trial. However, the Constitution limits the unlimited right to a

13
Universal Declaration of Human Rights, United Nations 1948, article 11

14
International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171, Article 14(3) (d),
15
African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 U.N.T.S. 217, Article 7
16
Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa, 2003, 7 Paragraph G and H
17
Malombe D Mavenjina Medi Mbataru S, ‘Kenya’s Regional and International Human Rights Obligations’,Kenya
Human Rights Commission Publications, 23 August 2016, 1-17. Available at
https://www.khrc.or.ke/mobilepublications/economic-rights-and-social-protection-er-sp/126-kenya-s-regional-and-
international-human-rightsobligations/file.html (accessed on 12 December 2022.)
18
Constitution of Kenya ,2010 Article 25

3
fair trial by establishing criteria based on'substantial injustice' as a basis for the state to provide
counsel, which is unclear.
Only the courts can determine whether there has been a substantial injustice. As a result, Article
50(2) (h) becomes a limited right, undermining Articles 48 and 50(2). (g). Furthermore, the
Legal Aid Act of 2016 established the National Legal Aid Service (NLAS), 19 and different civil
society organizations have been providing pro bono legal representation as one of their legal aid
services. However, they are underfunded and underpublicized which prevents them from
carrying out their mandate.20 This research investigates how Kenya has met its international
obligation to ensure the right to legal representation for unrepresented accused in order to ensure
a fair trial.

1.3 OBJECTIVES OF THE STUDY

The study establishes how the State legislates, implements, and practices legal representation for
the accused in accordance with the Kenyan Constitution of 2010. Beneficiaries of this research
include those involved in the criminal justice system, such as the accused, the ODPP, the
judiciary, and the legal profession. It also aims to demonstrate that the realization of the right to
counsel effectively ensures that the accused asserts their human rights in order for the judiciary
to protect them. As a result, the public will have faith in the judiciary to protect their rights.

1.4 RESEARCH QUESTIONS

1. What are the current legal framework and legal foundations on the right to counsel?
2. To what extent, has the Kenya facilitated the right to counsel and what challenges does it face
when facilitating the right to counsel?

19
Legal Aid Act (Act No.6 of 2016),s7
20
United Nations Office on Drugs and Crime, Global Study on Legal Aid: Country Profiles, 2016,139.available at
https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/GSLA Country_Profiles.pdf (accessed on 12
December 2022).

4
3. What best practices can Kenya adopt from the comparative studies for effective facilitation of
the right to counsel to guarantee a fair trial for the unrepresented accused person?

1.5 RESEARCH OBJECTIVES

The general aim of this thesis is to examine whether the State has an obligation to realise the
right to counsel for the unrepresented accused and how it has respected, protected and enforced
this right.
The specific research objectives, which this study seeks to address, are:
1. To analyse the current legal framework on the right to legal representation
2. To determine the extent to which the Kenya has facilitated the right to legal representation and
identify the challenges it faces when realising this right
3. To identify best practices from the comparative studies that Kenya can adopt for effective
facilitation of the right to counsel to guarantee a fair trial for the unrepresented accused.

1.6 SIGNIFICANCE OF THE STUDY

According to Kenya's 2010 Constitution, the study explains how the state regulates, implements,
and employs legal representation for those accused. This research benefits participants in the
criminal justice system such as the accused, the ODPP, the judiciary, and the legal community,
among others. Furthermore, it attempts to demonstrate how successful realization of the right to
counsel ensures that the accused effectively asserts their human rights to be upheld by the legal
system. As a result, the public will have faith in the legal system to protect their rights.

1.7 HYPOTHESIS

The research hypothesis is:

Kenya has failed to meet its obligation to realise the right to counsel as offered in Article 50(2)
(g) And (h) of the Constitution of Kenya 2010 to guarantee the fair trial for the unrepresented
accused.

5
1.8 THEORETICAL FRAMEWORK

It is wise for a nation to have a solid legal framework with the intention of achieving access to
justice for all by removing obstacles to the administration of justice. Justice-related obstacles
exacerbate inequality and exclusion. 21 The interaction between the social contract theory and the
notion of justice will serve as the study's compass. Below, these theories are expanded upon.

1.8.1 Theory of justice

FF John Rawls first proposed the theory of justice in his 1971 book, "A Theory of Justice,"
22
where he argues that just structures for society and the government are what theories of justice
are about. Justice, in his view, ensures the existence of morally just communities. So, it is vital to
take into account whether access to justice reflects societal aspirations. Rawls envisions a society
in which everyone has the same fundamental desires, rights, and liberties. He argues that people
shouldn't be restricted in any way from fully enjoying their legal rights due to social or political
objectives. According to him, "A bad law is better than no law at all." As a result, only severe
injustice can be excused when a worse injustice can be prevented. Equal liberty, diversity, and
opportunity are the three tenets of justice according to John Rawls.23

All people are entitled to the same basic privileges under the equal liberty principle. When faced
with an unfair system, the least fortunate people are protected by the difference principle. It
represents a departure from the idea of equal liberty. If any distribution occurs, it encourages
unequal distribution to those who are least fortunate when doing so will improve their situation. 24
Equal opportunities must be provided for everyone in accordance with the equal opportunity
principle. All of these ideas are related to the idea of equitable treatment for all accused parties
during legal representation. The difference principle will be useful to grant these forms of

21
Australian Government, a single framework of access to justice in the federal civil judicial system: A guide for
future action ‘2009, Attorney General Department.

22
John Rawls, A Theory of Justice (1971) Harvard university Cambridge Massachusetts

23
Ibid [no.22]

24
Ibid [no.22]

6
advantages to them so that they are in an equal position with accused persons who can afford
legal services. Free legal services are necessary to make indigent persons better off insofar as
legal representation and access to justice are concerned.

1.8.2 Social contract theory

Socrates
The State's authority, which was drawn from Athenian law, depended on civil submission.
According to Socrates, Athenian Law was motivated by reason rather than politics. As a result, it
placed a strong obligation on the people to uphold the law. This was due to the fact that it made a
pleasant life important for the society, and as a result, the rules were fair. 25 As a result, the law
gave its residents access to advantages including free emigration, education, and involvement in
political decisions.26 As a result of receiving these advantages, citizens' actions created a social
contract between themselves and the law. In order to maintain conformity to the implied social
contract, thus established a duty of civil loyalty to the Athenian Laws. 27 Citizens could choose
not to abide by the laws by fleeing to Greece. In accordance with the legislation, the State was
obligated to provide the advantages that residents were entitled to, which is correlated with the
right to counsel in the Kenya Bill of Rights. 28 The State is obligated under the implied social
contract to uphold, defend, and respect the rights or benefits guaranteed by the law, just as a just
individual is compelled to obey the law.

1.9 RESEARCH METHODOLOGY

Desktop research that incorporated doctrinal and non-doctrinal research

1.10 LIMITATIONS OF THE STUDY

The main limitation of this thesis is the inability to obtain sufficient literature for review.
Although there is a lot of literature on legal aid funding procedures, very few writers have
25
Evers WM, ‘Social Contract: A Critique’, 1(3), Journal of Libertarian Studies, Pergamon Press Great Britain,
1977, 185-187.
26
Ritchie D G, ‘Contributions to the History of the Social Contract Theory’, 6(4), Political Science Quarterly, The
Academy of Political Science, 1891,657
27
Ibid [no.26]

28
Article 50(2) (g) (h), Constitution of Kenya (2010).

7
specifically written about or analyzed legal aid to offenders. Another limitation is that due to
government bureaucracy and red tape, it may be difficult to obtain information on how state
funds designated for legal aid are spent. This is due to the fact that it would entail identifying and
contacting individuals within government who are specialized or conversant with and willing to
provide such information.

1.11 CHAPTER OUTLINE

Chapter 1 outlines, introduction and background of the study, the statement of the problem, the
purpose and justification of the study, objectives of the study and literature review on emerging
issues on the right to counsel in Kenya. This Chapter also provides the theoretical framework,
research methodology and the hypothesis of the study.
Chapter 2 discusses literature review
Chapter 3 it covers the legal framework and the practical aspect on the ground
Chapter 4 delves into different practices regarding the right to counsel in the UK and SA
according to the research objectives. This Chapter focuses on the law, court decisions and the
practices from different stakeholders such as the police and legal aid providers in the case
studies. These findings from the case studies regarding the right to counsel of the unrepresented
accused provide for best practices that Kenya can implement to effectively actualize the right to
counsel for unrepresented accused in Kenya.

Chapter 5 provides the conclusion and the recommendations of the study according to the
discussion of the findings.29

CHAPTER TWO

2.0 LITERATURE REVIEW

2.1Introduction

29

8
Legal representation is the process of representing a defendant in the court.30 Due to the
adversarial nature of criminal procedures, that places the defendant at a disadvantageous, there is
a need to discuss matters that pertains legal representation.

2.2 Writers and report review

Steele31 and Cole32 connotes that a fair trial, procedural fairness, and equitable treatment depend
on having the right to legal representation. Access to justice is defined by Amondi as the
elevating of the poor and disadvantaged who would otherwise be excluded in order to be able to
seek legal remedies for their injustices. 33 The provision of legal representation as a right for
those who have been accused promotes access to justice.

According to the National Council on the Administration of Justice (NCAJ) 2017 report on the
condition of the unrepresented accused at various stages of judicial procedures, the poor were
34
more likely than the rich to be detained, charged with misdemeanor offenses, and punished.
Capital offenses had the most acquittals and withdrawals, while 70% of the cases determined
were non-capital offenses. According to the Kenya National Commission on Human Rights
(KNCHR), the Kenyan judicial system relies heavily on self-representation due to a lack of
access to nsel throughout the country. 35

30
<https://study.com/academy/lesson/legal-representation-defination-rights.html>last accessed on March 15, 2023

31
Steele W W, ‘The Doctrine of Right to Counsel’, 23(3), South Western Law Journal, 1969, 491-523
32
Cole R J V, 'Between Judicial Enabling and Adversarialism: The Role of the Judicial Officer in Protecting the
Unrepresented Accused in Botswana in a Comparative Perspective', 11, University of Botswana Law Journal, 2010,
81-84.

33
Amondi C, ‘Legal Aid in Kenya: Building a Fort for Wanjiku’, 201.

34
National Council on the Administration of Justice, ‘Criminal Justice System in Kenya: An Audit’,2017, xxiv
35
Kenya National Commission of Human Rights, Annual Report and Financial Statements for the period 2016/17,
2017, 31. International Law and Politics, 2012,302.

9
 According to Amondi,36 The State owes it to all citizens to make sure they have inexpensive
access to justice. Ogletree investigated the various means by which China, South Africa, and the
United States supported their respective populations' rights to representation and the difficulties
they faced. 37 He claims that there were more accusers than proponents as a result of issues like
poverty and a high crime rate. It is very discretionary and ultimately unfair to the poor
unrepresented accused given that the right to counsel is restricted as stated in the Kenyan
Constitution of 2010. 38
According to Wascilzuk, the competence of the accused to defend oneself takes precedence
when deciding whether an accused needs legal assistance. This complements the entitlement to
39
legal aid. Therefore, it is necessary for vulnerable groups like children and the mentally ill
among others to have legal representation.
The importance of a solid and coherent legal framework for legal aid cannot be overstated. There
is also a basis for having a legal aid system that is cost-effective and sustainable, as provided in
order to keep up with current economic realities. As a tool of public policy, legal aid serves a
purpose. A government is responsible for achieving and promoting certain policies that are
expected to be in the public good and reflect public interest at all times. Governments ensure
democratic participation and accountability mechanisms by ensuring equal access to justice for
all. As a result, policymakers should focus on access to justice because it is the state's
responsibility to provide legal aid because it is essential in a functioning criminal justice system.
According to Laibuta, the demand for justice has increased over the years since independence,
but access to justice has been hampered by numerous challenges such as the high cost of
accessing justice, protracted legal procedures leading to inordinate delays in administration of
justice, and ignorance of the law.40

36
Amondi C, ‘Legal Aid in Kenya: Building a Fort for Wanjiku’, 201-202. International Law and Politics,
2012,302.
37
Ogletree C J, 'The Challenge of Providing "Legal Representation" in the United States, South Africa, and China',
7(47), Washington University Journal of Law & Policy, (2001), 61.
38
Ogletree C J, 'The Challenge of Providing "Legal Representation" in the United States, South Africa, and China',
62-65.
39
Wascilzuk M K, ‘Substantial Injustice: Why Kenyan Children are Entitled to Counsel at State Expense’, 45(1),

K.I Laibuta{2010)’Access to Justice: An Appraisal of Policy and Legal framework, available at

40

<http://erepository.uonbi.ac.ke/handle/11295/15704>( accessed on 12 December)

10
 This study will seek to find out whether the measures put in place by the state to meet the need
for legal aid are sufficient and address the challenges mentioned above.
According to Marcos Atsiaya, there are several reasons why countries should establish a proper
legal aid system, the most important of which is that justice is a fundamental concept of
democracy. According to Marcos, even though Kenya is a fairly democratic country, indigent
people who cannot afford lawyers have not received justice.41 This is a situation that must be
addressed through the effective implementation of the "Chief Justice Practice Directions relating
to Pauper Briefs Scheme and Pro Bono Services" and the "Legal Aid Act of 2016," which are
legislative measures in place to address these pressing needs.
Jill Cottrell Ghai has identified a discriminatory practice in Kenya's provision of legal aid to
indigent accused people. She observes a troubling trend in which the state provides legal aid to
capital offenders charged with murder but not to those charged with robbery with violence. 42
This is discriminatory because both classes of offenses carry the same penalty and should be
addressed to ensure that all people have access to justice. She claims that the Legal Aid Act
discriminates against people who are stateless. Such a person would be unable to apply for legal
aid. This is clearly unjust and violates the Constitution, which guarantees the right of "every
accused person" to be represented by an advocate. As a result, the purpose of this study will be to
highlight this gap in our laws and provide recommendations on how to address it. The Legal Aid
Act 201639 is Kenya's legislative foundation for providing legal aid. It creates the Legal Aid
Fund.43 The state established the "National Action Plan on Legal Aid" under the auspices of the
"National Legal Aid Service" with donor funding and technical assistance from the International
Development Law Organization (IDLO) (NLAS). The goal of these measures is to increase
funding for legal aid, and this study will look into whether the Legal Aid Fund provides adequate
funds for indigent people facing capital offenses. Legal representation in a court of law is the
most expensive type of legal service and is at the top of the pyramid. We can conclude from the

Atsiaya Mongoi Marcus ,’ Research Paper on Access to justice and Right to Legal Aid : a comparative study of
41

Kenya and United Kingdom’

Jill Cotrell Ghai, ‘legal Aid in Kenya New hope or false down?’ available at
42

<https://lawcat.berkeley.edu/record/377007?ln=en>(accessed on 13 December 2022)

43
Legal aid act no,6 of 2016 ,s7

11
foregoing that the key challenge to access to justice in Kenya is the failure of those in authority
to prioritize funding for the "right to legal representation" as a significant human right and to
acknowledge their responsibility to grant access to justice for all.
Legal assistance provisions must adhere to the nondiscrimination principle, which is a general
rule and benchmark for human rights. By aiding people in receiving high-quality legal services
without unnecessary delay or excessive expenditure, citizens must fully realize their right to
access justice through legal assistance.

2.3 conclusion

Without a doubt, the right to legal representation is the most comprehensive right of all the rights
that an accused person has. Consequently, various international, regional legal documents and
domestic provisions have come up with provisions which help to guarantee the right to legal
representation. Though the existing legal framework expressly provide for funded state advocate
to represent the accused persons, the accused are not fully accorded this right.

12
 CHAPTER THREE: KENYAN CONTEXT

3.0 INTRODUCTION

This chapter will analyze the legal and institutional framework for the right to legal
representation as an integral part of the legal system for ensuring fair trial. It will also find out
how Kenya has protected, respected and enforced the right to legal representation.

3.1 LEGAL AND INSTITUTIONAL FRAMEWORK

3. 1.0 Legal framework

To ensure respect and observation of this right, Kenya has implemented national and ratified
international and regional instruments.

3.1.1 International instruments

The international instruments relevant to legal representation ratified by Kenya are universal
declaration of human right, international convention on civil political right, international
principle and guideline on legal representation. These instruments obligate Kenya to respect,
protect, promote and fulfill the human right of which the right to fair trial is part of.

UDHR provides for the right of every person to public hearing by impartial and independent
tribunal in determination of criminal cases. 44 It also highlights the fact that an accused person
should be presumed innocent till proven guilty. 45Since UDHR provides for the right to public
hearing, it can be inferred that it provides for the right of legal representation as it forms an
integral part of fair public hearing.

44
United Nation Declaration Human Rights, 10 December 1948, Art.10

45
Ibid [no.42] Art.10, 11

13
 International convention on civil political right recognizes the right to inherent dignity of every
46
person, which encompasses every right. It provides for the right to fair and public hearing by
competent impartial and independent tribunal. 47 It further provides for the right of an accused
person to be assigned an advocate where there is no financial position to pay for legal services
and if it is the interest of justice to do so. 48

The united nation principle and guideline on access to legal aid in criminal justice system calls
on the state to see to it that detainees or arrested persons on criminal offences punishable with
death penalties or terms of imprisonment receive legal aid at all stages of criminal proceeding. 49
It further recognizes that legal is essential in fair human and efficient criminal proceedings.
Legal aid is also the foundation of enjoying right to fair trial and building trust in criminal justice
system. 50

3.1.2 Regional Instruments

The African Charter on human and people’s rights protects the right to fair trial. The right to fair
trials cannot be achieved without legal representation of accused person and that why the charter
provides for the right of individuals to be defended by a counsel of their choice. 51 This protects
the right of every person to be heard.52.

UN General Assembly, International covenant on civil and political right, 19 December 1966, entry into force 23
46

March 1976. Preamble

UN General Assembly, International covenant on civil and political right, 19 December 1966, entry into force 23
47

March 1976, art. 14

48
Ibid [no.45]

49
United nation principle and guideline on access to legal aid in criminal justice system resolution A/RES/67/187
adopted by general assembly ,June2013

50
Ibid [no.47]

51
The African charter on human and peoples right, adopted27 june 1981, OAU DOC CAB/LEG/67/3rev.S,21 ILM,
entry into force 21 October 1986

52
I bid [no.49]

14
The additional protocol to the African charter on human and peoples right on the establishment
of African court speaks of the right to free legal representation where it is necessary for justice to
53
be met. The principles and guidelines on the right to fair trial and legal assistance in Africa
calls on the states to ensure access to lawyers by all persons on non-discriminatory basis . It
further protects the right to legal aid by an accused person. In determining whether to grant or
not the legal aid in criminal cases the seriousness of the offence should taken into
consideration.54The Lilongwe declaration on accessing legal aid in criminal justice system in
South Africa notes that prolonged detention without providing access to legal aid is a violation of
international law and human right. It observes that the primary responsibility of providing access
to legal aid rests on the state. It also calls on the state to sensitize criminal stakeholders on legal
aid. It also calls on the government to formulate laws and put in place institutions that are in
charge of provision of legal aid and to create legal awareness on legal aid. 55

3.1.3.0 DOMESTIC PROVISIONS

3.1.3.1 The Constitution

The constitution provides for the comprehensive provisions on human right in the bill of right
chapter.56 Among the human right that the constitution provides are the rights to access to
justice,57 the right of arrested persons and the right of accused person. 58 The right of arrested
person to communicate to his advocate is protected by the constitution. The right to Fair trial

53
The protocol to African charter on human and peoples right on establishment of African court on human and
peoples right, adopted 10 June 1998, entry into force 25 January 2004

54
The principles and guidelines on the right to fair trial and legal assistance in Africa by African commission on
human and peoples right 2003

55
The Lilongwe declaration on accessing legal aid in criminal justice system, passed at the conference of legal aid in
criminal justice: The role of lawyers non-lawyer and other service provider in Africa in Lilongwe 22-24 November
2004

56
Chapter 4 of the constitution of Kenya 2010

57
Ibid [no.54] Article 48

58
Ibid [no.54] Article 49 and 50

15
forms an integral part of access to justice. These rights include the right of an accused to chose
and have an advocate represent him and the right to at an expense of the state have an advocate
assigned to him. 59

3.1.3.2 Legal aid statute

It is the for the purpose of realizing the right to access of justice and fair trial that the legal aid
act of 2016 was enacted. The legal aid act allows for the establishment of legal and
institutional framework that facilitate access to justices by availing legal services to indigent
person in Kenya , legal aid scheme to facilitate access to legal aid in Kenya. 60 It establishes
legal aid funds which is to be allocated by parliament from the budget the monies are utilized to
settle debt that arise from legal representation under the legal aid , remunerate legal aid providers
and pay for any expense incurred by them during the provision of legal aid serves.

3.2 .0 Institutional framework

Taking account the nature of legal aid in Kenya, where the accused and the justice provider are
far distance laws alone is not sufficient to ensure access to justice. Legal aid institutions are
therefore important in ensuring this important right is enforced

3.2.1 National Legal aid service

The legal aid act provides for establishment of national legal aid service. 61 Its predecessor was
national legal aid and awareness program which existed prior to enactment of legal aid act. 62 The
national legal aid is guided by the principle of good governance and national values, 63the values

59
Ibid [no.54] Art 50(h) ,(g)

60
Legal aid act of 2016,sec5

61
Ibid [no.58]

62
ibid

63
The constitution of Kenya 2010, Art 10

16
and principle of public service 64the national aid is tasked with creating and running legal aid
program that is affordable accessible credible and accountable. It advises the cabinet secretary in
charge of access to justice.

3.2.2The Kenyan court

The practice direction related to pauper briefs scheme and pro bono services mandates all court
station to set up pro bono committee responsible for allocating pro bono brief to individual
advocates. 65

3.3 Right to legal representation on the ground

The right to counsel is an essential component of the system, and it is "buttressed by the common
law tradition that a lawyer is never justified in withholding his services unless ethical grounds
demand it." 66 However, it should not be forgotten that the cost of legal representation is out of
reach for many people. This is due to the country's high poverty levels. The right to legal
representation is so fundamental that its absence may result in injustice on the part of the
accused. 67

3.3.1.0 REALIZATION OF THE RIGHT TO LEGAL REPRESENTION

3.3.1.1 THE POLICE

The police rarely followed through on their obligation to inform an arrested person of their right
to counsel. In the 2012 CCPR report, arrested detainees were denied contact with counsel,
demonstrating that this right was not respected. 68As recently as 2019, the police were exploiting
society's most vulnerable members by extorting bribes from the poor in order to provide them

64
Ibid [no.61]

65
The practice direction related to pauper briefs scheme and pro bono services, Gazette notice no.370 dated January
2016 and took effect 1 July 2016

Allan, Trevor RS. The sovereignty of law: freedom, constitution and common law. Oxford University
66

Press, 2013.

67
Rhode, Deborah L. Access to justice. Oxford University Press, 2004.

17
with access to legal counsel. Furthermore, the police instructed children not to communicate with
the judge during criminal proceedings, which may have harmed their right to a fair trial because
they were excluded from the proceedings.

The right to be informed of the right to counsel by the courts was called into question in the
Supreme Court case of Charlse Maina Gitonga v Republic.69The petitioner was unrepresented in
both the trial and appellate courts, and he was not informed of his right to counsel in either court,
nor was it raised as an issue in the proceedings. The respondent contended that the duty to inform
an accused of this right was insufficient ground to vacate the conviction, and that the petitioner
could not exercise both rights in Article 50(2) (g) and (h), demonstrating that they were mutually
exclusive. The Supreme Court of Kenya, on the other hand, stated that it lacked jurisdiction to
hear the case because the appeal had nothing to do with the interpretation and application of the
Constitution. As a result, it did not have the opportunity to make their decision.70

Nonetheless, Justice Nyakundi emphasized the right to counsel, stating that an advocate is
recognized for applying case facts in court or at the police station. As a result, he concluded that
the rules of police protocols should not preclude the realization of this right. Kenya does not
provide legal representation for those detained by the police.

3.3.1.2 THE COURTS.

Courts have worked to ensure that the right to a fair trial has been realized through legal counsel
as the frontiers in ensuring fair trials. Courts have done this by handing down the following
judgments: If an accused person is tried without legal representation and a conviction is
rendered, the verdict may be overturned on appeal.In Ouma & Another v. Republic, Porter and
Mbaluto JJ noted that ‘[e]very accused has the undoubted right to be defended by counsel. If an

68
Badalič, Vasja, and Vasja Badalič. "Systemic Torture, the New Normal: Civilian Victims of “Enhanced
Interrogation Techniques” in Afghan Detention Facilities." The War Against Civilians: Victims of the “War
on Terror” in Afghanistan and Pakistan (2019): 91-108.

69
Charlse Maina Gitonga v Republic[2020]eKLR
70
Ibid [no.69]

18
accused is deprived of that right through no fault of his own and through no fault of his counsel
and conviction follows, the conviction will be quashed on appeal.’71

In Dominic Kimaru Tanui v Republic the appellant was charged and convicted of the offence of
defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual Offences Act.72 He
appealed the verdict on a number of reasons, one of which was that the trial court had denied him
a fair trial when it initially heard the case. In particular, he claimed that despite the seriousness of
the offense, he was denied access to witness testimony and counsel. Judge Munyao responded to
the question of legal representation by saying, ‘where an accused faced a capital offence, then
the State ought to consider providing legal representation.’ He went further to explain that ‘in a
case in which one faces a life sentence is a serious case, and I would indeed place it at the same
level as a case in which the penalty is loss of life, so that ideally, legal representation ought to be
provided at state expense if the accused cannot afford counsel.’73

In the case of W N M v Republic the court addressing itself on persons who may benefit from
legal representation at the expense of the state noted, that ‘such a right mainly applies to accused
persons who are charged with offences that carry death penalty.’74

The appellate court in the case of David Kamau Macharia v R observed that ‘persons accused of
capital offences where the penalty is loss of life have the right to legal representation at state
expense.’ These cases make it clear that not every situation will qualify for legal representation.
Without a doubt, those accused of crimes that carry a death sentence would receive legal
representation at the state's expense if they were unable to pay for it. If an accused person cannot
afford legal representation and the charge is a "severe" offense with a life sentence rather than a
capital offense, the state should provide legal representation.75 However, this is not the case as
many indigent accused people go unrepresented. This has evidently depicted in many cases.

71
In Ouma & Another v. Republic

72
Sexual offence act

73
Kimaru Tanui v Republic

74
W N M v Republic

19
3.4 Conclusion

Kenya's legal system encourages and protects the right to legal representation. In reality, the
accused were not given this chance. The police have failed to uphold this right by failing to
inform the accused of their right to hire a lawyer to represent them. Nonetheless, there is still
hope because the courts have done their part to ensure that the accused have this right. They did
so by overturning lower court rulings in which the judge ignored the right to legal representation.

75
David Kamau Macharia v R

20
 CHAPTER 4: CASE STUDY

4.1 INTRODUCTION

Comparing legal representation in Kenya with that in South Africa and Europe is the goal of this
chapter. It will look at how the two jurisdictions have upheld, honored, and defended the right to
legal representation.

4.2 SOUTH AFRICA

The legal system in South Africa is Hybrid, which combines Roman, Roman-Dutch, and English
law. According to Roman law, a governor-appointed advocate had a responsibility to defend the
vulnerable. The Roman-Dutch law provided that an advocate should be assigned to an indigent
accused upon request of the court. English law guaranteed right to counsel in 1836 but an
advocate was not provided for an indigent accused. Therefore, this shows that lawyers played a
dominant role in the defence of an accused which is established on the principles of equality and
a fair trial

4.2.1 LEGAL FRAMEWORK FOR LEGAL REPRESENTATION IN S.A

The Constitution of South Africa guarantees the right to fair trial under section. 76 This right is all-
inclusive and includes the right to legal representation. Police and courts have a responsibility to
swiftly tell the person who has been arrested of their right to counsel. Courts were required to
offer defense counsel to the accused if grave injustice would result.77

Criminal Procedure Act 51 of 1977 safeguarded an accused person's freedom to choose and pay
for their own legal representation. The clause indicates that the defendant has a right to counsel
from the moment of his arrest. It goes into additional detail about the notification of legal aid
when the accused cannot afford a lawyer.78

76
Constitution of the Republic of South Africa of 1996, Section 35(3)(g)

77
Ibid [no.69] section 35(2), (3)

21
The first legal aid organization with the sole focus on providing free legal counsel for civil
disputes was the Institute of Race Relations in Johannesburg, which was created in 1968. There
was no need for publicly financed legal representation because the Department of Justice
believed its legal system to be just. 79 Organizations such as the South African Defence and Aid
Fund, which provided legal assistance in apartheid-related criminal and civil cases, gave free
legal services in opposition to the apartheid rule.80

The Legal Aid Act 22 of 1969 was an obstacle for NGOs when providing legal aid because it
only covered civil matters. This agitated South Africans who were rampantly initiating law
clinics in SA, in universities and published research demonstrating the inadequacies of Legal Aid
Act22 of 1969.81

The Legal Aid Act 1969 ineffective for 25 years because it only served the apartheid government
thus was amended. The Legal Aid South Africa Act 39 of 2014 replaced the Legal Aid Act 1969
in 2014. Legal Aid South Africa (LASA), established in 2015, uses public funds to subsidize cost
of legal assistance to those who cannot afford it.82 Its main responsibilities include rendering and
providing access to legal aid, advice, and representation. Objective of the legal aid system was
to realize the constitutional entitlements of access to justice, right to counsel, and offering legal
aid and advice.83

78
Criminal Procedure Act (51 of 1977), Section 73,

79
As H V, ‘Legal Aid in South Africa: Making Justice a Reality’, 49(1), Journal of African Law, School of Oriental
and African Studies, 2005, 55.

80
Ibid [no.72]

81
Steytler N.C., ‘The Undefended Accused’, Cape Town, 1988, 15

82
Legal Aid South Africa Act (39 of 2014).

83
Ibid [no.75]

22
 4.2.2 Facilitation of the right to legal representation

The right to legal representation was interpreted in the cases of S v Vermaas and S v Du Plessis.
84
Both cases began with counsel for the accused who withdrew due to financial constraints. The
accused were unrepresented near the end of the cases, so they applied for the state-funded
advocate. The trial court denied this right, stating that the future conduct of the trial was not
affected by the Constitution, which had not yet been promulgated, thereby emphasizing the issue
at hand. 85The national policy "for deciding when counsel at the public expense may be assigned
encapsulates the same aims of ensuring protection for the accused and supporting an effective,
rights-respecting judiciary." 86 In State v. Versmaas, the Constitutional Court stated the following
in response to the emotive subject of what constitutes "substantial injustice":

‘…ramifications of the case and their complexity or simplicity, the accused person’s aptitude or

ineptitude to fend for himself or herself in a matter of those dimensions, how grave the
consequences of a conviction may look, and any other factor that needs to be evaluated….’87

In the first decade of the 21st Century the above test was summed up in three certain and

identifiable factors being i) the seriousness of the offence, ii) Complexity of the case and iii)

Capacity of accused to defend for himself.88

84
S v Vermaas; S v Du Plessis, (1994), Constitutional Court of South Africa.

85
S v Mhulungu (1995), Constitutional Court of South Africa.

86
Madalyn K. Wasilczuk, ‘Substantial Injustice: Why Kenyan Children Are Entitled To Counsel At State Expense’
(2012) 45 New York University Journal of International Law and Politics 291, pp. 291-333:301.Available at >
http://nyujilp.org/wp-content/uploads/2013/04/45.1-Wasilczuk.pdf > 4th April 2014

87
State v Versmaas CCT/1/1/94.

88
Makhandela v State (2005) ZAGPHC.

23
The court also stressed the necessity for further initiatives to create administrative and financial
institutions to implement this right to counsel. This was due to the fact that, despite the court
informing the accused of this privilege, doing so would be pointless in the absence of effective
89
enforcement tools. But, the court ruled that an accused person who was eligible for state-
funded legal assistance did not have the right to choose the attorney who would represent him.

The right to choose one's own legal counsel was interpreted by the South African Constitutional
Court in Ramabele v The State and Msimango v The State. The court ruled that the right to legal
representation was inextricably linked to the right to a fair trial. However, because state-funded
legal representation did not allow for counsel selection, the accused could only accept legal
representation. Concerning unreasonable delays, the court stated that a fair trial within a
reasonable time frame was critical for the accused. The High Court was found to have given the
accused the opportunity to obtain legal representation, and when their counsel resigned, the court
informed the accused of their right to state-funded legal representation. As a result, an accused
was given a fair and reasonable opportunity to defend himself. 90

In the cases of S v Khanyile and another 91and S v Mthwana, 92 it was determined that a violation
of the right to counsel caused a substantial injustice to an accused when the accused lacked
funds, was facing a capital punishment sentence, and adequate representation would make a
material difference in the outcome of a trial. 93

The court used a set of criteria to determine whether an accused needed legal representation to
avoid significant injustice. These factors included the accused's circumstances, the gravity and

89
Rosa S, ‘S v Vermaas; S v Du Plessis CCT/1/94; CCT/2/94; 1995 (3) SA 292 (CC); 1995(7) BCLR 851 (CC)’,
12, South African Journal on Human Rights, 1996, 135-138.

90
Ramabele v The State; Msimango v The State (2020), Constitutional Court of South Africa.

91
S v Khanyile and another (1988), High Court of South Africa

92
S v Mthwana (1992), The Supreme Court of South Africa.

93
As H V,’ Legal Aid in South Africa: Making Justice a Reality’, 58.

24
nature of the offense, the availability of state-funded representation, and any other factor deemed
relevant by the court. 94

Because the right to counsel was eroded by the state during the apartheid regime, alternative
providers of this right included: a) community-based advice offices; b) non-governmental
organizations (NGOs); c) university legal aid clinics; d) self-help services; e) ombudsman
services; f) pro bono services; and g) short-term insurance schemes. 95

However, with the passage of the Legal Aid South Africa Act 39 of 2014, the constitutional right
to legal representation was realized. 96 LASA determined who was indigent using a means test
outlined in the Legal Aid manual. The eligibility criteria for receiving state-funded legal aid, as
outlined in the Legal Aid Act subsidiary regulation and legal aid guide. Criminal legal aid was
automatically granted to children and people receiving government grants or an old-age pension.
The other accused were required to pass a means test as outlined in the guide. 97

To carry out its mandate, the Legal Aid Board employs justice centers, collaboration agreements
with university law clinics, contracted private attorneys, and special impact litigation. In criminal
cases, there are justice centers where an accused who qualifies for legal representation can be
98
assigned a public defender. These centers provide legal services to legal aid applicants from
salaried lawyers, making them a one-stop shop dedicated to serving the poor. This improved the
quality of service provided by the justice center to its applicants.

The agreements are between the Legal Aid Board and university law clinics or non-
governmental organizations to provide legal assistance to local communities. The Legal Aid
Board appoints private attorneys through the Judicare system, who work for free at the rates

94
Section 3B (1) (a), Legal Aid Amendment Act (20 of 1996

95
Legal Aid South Africa, Country report, April 2017, 1-26

96
Section 3, Legal Aid Act, 22 of 1969 as amended by the Legal Aid Amendment Act, 20 of 1996.

97
Chapter 4, Legal Aid Guide 2014

98
As H V,’ Legal Aid in South Africa: Making Justice a Reality’, 57

25
specified in the contract. The Legal Aid Board pursues special litigation on a case-by-case basis
in matters affecting South African law, such as constitutional violations.99

4.2.3 Conclusion

In contrast to the institutional structure, these elements are contextualized in light of the unique
circumstances of the accused. Although the test is not fundamentally different from that used by
Kenyan courts, it is noted that the third factor—the ability of an accused to defend himself—used
by South African courts is crucial in identifying the various capacities of accused people for the
purposes of allocating state-funded counsel.

4.3 EUROPE

4.3.1 Introduction

According to the Ministry of Justice's 2019 report, unrepresented defendants have a significant
impact on the Crown court process and reform. Unrepresented defendants were those who did
not qualify for legal aid or who chose to represent themselves for non-financial reasons. 100 The
Ministry of Justice also discovered that unrepresented defendants struggled to understand the
court process, burdening the judge and prosecutor with the task of explaining the procedure and
various legal concepts to the accused. The prosecutor would inform and assist the defendant to
some extent; however, they urged the court to appoint a solicitor for the defendant in order to
serve the defendants.101

99
As Legal Aid South Africa, Integrated Annual report 2017-2018,17.

Ministry of Justice Analytical Series, Unrepresented Defendants: Perceived effects on the Crown Court in
100

England and Wales practitioners, 2019, 5

101
Ibid [no.93]

26
The defendants lacked knowledge of how to question a witness and present their arguments, as
102
well as knowledge of other court proceedings that limited evidence disclosure during trial.
Due to their misunderstanding of the type of evidence required from the witness, the
unrepresented defendant would sometimes intimidate or waste the time of the witnesses during
cross-examination. 103 This demonstrates that the dilemma of an unrepresented accused is felt in
different jurisdictions such as Kenya and the United Kingdom. As a result, all of these factors
limited the defendant's ability to present their case, infringing on their right to a fair trial.

4.2.2 Legal framework of legal representation in UK

Because there was an imbalance of power between the prosecutor and the defendant, the
Prisoner's Counsel Act 1836 was enacted, which stated that an accused put on trial for a felony
would be granted full defense, allowing him to answer and defend his case before the jury with
104
the assistance of a counsel learned in law. The defense counsel's role in representing the
accused was expanded, ensuring fairness and accountability in the courtroom. Beatti saw the end
result of advocacy as truth-finding, which was a more effective and humane form of criminal
trials. 105 However, the accused was required to pay for his defense counsel, which presented a
problem because many people could not afford it. Section 10(2) of the Criminal Law Act 1967
repealed this Act because it was found to be redundant.106

Article 6 of the ECHR guarantees a fair trial to everyone charged with a crime. An accused's
minimum rights include the right to defend themselves or a counsel of their choice, as well as the

Ministry of Justice Analytical Series, Unrepresented Defendants: Perceived effects on the Crown Court in
102

England and Wales practitioners, 7-8

103
Ibid [no.95] 8-9

104
Article 1, Trial for Felony Act 1836 (England)

Beattie JM, ‘Scales of Justice: Defence Counsel and the English Criminal Trial in the Eighteenth and Nineteenth
105

Centuries’, 221-267.

106
https://www.legislation.gov.uk/ukpga/1967/58/contents accessed on 15 October 2023

27
 107
right to be assisted by counsel where the interests of justice require it. The Human Rights Act
of 1998 incorporates this into domestic law, allowing citizens to file complaints in domestic
courts alleging violations of their rights.108

The Legal Aid and Advice Act of 1949 established a legal aid system that expanded the scope of
criminal legal assistance to those with limited financial resources. Because the means test did not
109
apply in criminal cases, no contribution was required from the assisted person. Legal
representation was made available in all criminal cases where it was necessary for the sake of
justice.110

The Legal Aid Act of 1988 reduced eligibility for legal aid and abolished the Legal Service
Commission, which was in charge of administering the scheme. This allowed the government to
keep the scheme's spending under control, save money, and provide consumers with effective
111
and high-quality service. The Legal Aid Act of 1988 was repealed in favor of the Access to
Justice Act of 1999, which established more efficient and effective structures for the country's
legal schemes. The vision for the legal aid scheme in 1949 was access to justice for all, including
the right to legal representation; however, the scheme had lost its vision and was now focused on
cost-cutting.112

The Legal Aid, Sentencing, and Punishment of Offenders Act 2012, as enacted in 2012, limited
113
the scope of legal matters for which legal aid was available. Section 1-26 of the Access to

107
Article 6(3), European Convention on Human Rights, 4 November 1950, CETS No.194.

108
https://www.legislation.gov.uk/ukpga/1998/42/schedule/1 accessed on 21 December 2020.

109
LCBG, ‘Legal Aid and Advice Act 1949’, 13(1), Modern Law Review,1950,86.

110
Hart LJ, ‘The British Legal Aid and Advice Bill’, 23, Temple Law Quarterly, 1949, 68-74

111
Hansen O, ‘A Future for Legal Aid’, 85-100.

112
Bach Commission on Access to Justice, The crisis in the justice system in England and Wales, November 2016,
1-22

Part 2, Legal Aid, Sentencing and Punishment of Offenders Act 2012. 220 Section 13, Legal Aid, Sentencing and
113

Punishment of Offenders Act 2012.

28
Justice Act of 1999 was repealed by this Act. Section 13 mandated the provision of legal advice
and assistance to people detained at police stations, and it provided for a Director to determine
whether a person was eligible for legal aid and refer them to a solicitor. 114 It restricted legal aid
to the poorest, allowing only the very poor to receive it; thus, people with moderate means and
prisoners were denied access to legal aid. 115

Facilitation of the right to legal representation in UK

Ambrose v. Harris case interpreted the police's duty to inform a person of his right to counsel.
The court ruled that anyone who is a "suspect," "in police custody," or "the subject of police
interrogation" should be aware of their right to counsel during police interviews. 116 Furthermore,
this is a duty imposed on the police immediately after the individual has answered a highly
incriminating question that would have a significant impact on an individual. The court stated
that if the police officer did not follow this requirement, the evidence gathered during further
questioning would be ruled inadmissible. The police were also required to inform a person of
their right to legal aid available in the police station, such as duty solicitor schemes or Defence
solicitor call centers, which provide arrested and detained people with access to legal advice over
the phone.117

The Supreme Court considered the application of the right to choose counsel in Article 6(3(c)) of
the ECHR in Kevin Maguire's judicial review application. 118 The appellant was granted state-
funded legal representation by two instructing solicitors, with the condition that one of them be a
senior. He did, however, request that a junior advocate represent him as lead counsel, but his

114
Section 13, Legal Aid, Sentencing and Punishment of Offenders Act 2012. November 2016, 1-22.
https://www.fabians.org.uk/wp-content/uploads/2016/11/Access-to-Justice_final_web.pdf accessed on 15 Feb. 2023

115
Bach Commission on Access to Justice, ‘The crisis in the justice system in England and Wales’,

116
Ambrose v. Harris (2011), Supreme Court of the United Kingdom of Great Britain and Northern Ireland.

117
Para. 6.6, United Kingdom, Police and Criminal Evidence Act 1984, Code of Practice C

Re an application by Kevin Maguire for Judicial Review (2018), Supreme Court of the United Kingdom of Great
118

Britain and Northern Ireland

29
request was denied. He claimed that this was a violation of the ECHR's Article 6(3(c)). The court
determined that adequate representation was more important than identity choice, demonstrating
that the right to counsel was not absolute.Thus, it is necessary for an accused to explain how the
counsel of their choice would ensure their right to a defense, which the appellant did not do. The
court determined that providing legal aid ensured a fair trial, and that Article 6 did not grant an
accused the right to choose his own counsel at public expense in criminal proceedings.

Criminal legal aid is administered by the Public Defender Service. Individuals arrested have the
right to free legal advice at the police station. . 119 Minors and individuals receiving benefits such
as universal credit and income support are required to have legal representation during trial. The
state-subsidized legal representation is only granted in accordance with the Criminal Defence
120
(General) Regulations 2013, which specify the means test (disposable income of less than
£37500 in the Crown Court and £3398 in the magistrate's court) and the interest of justice test.121

The Widgery report guides the courts in determining whether the interest of justice test is met
based on the facts of the case. 122 This includes: a) a serious charge that the accused will lose his
liberty or suffer serious damage to his reputation; b) the charge raises a substantial question of
law; c) deficiencies such as a lack of knowledge of English, among other things; d) the nature of
the defense involves cross-examination of prosecution expert witnesses; and e) where it is in the
interest of someone other than the accused.

The Legal Aid Agency works with private practitioners and salaried solicitors to help those who
need legal aid. They have reports and articles on the status of legal aid in England and Wales that

119
Article 58(1), Police and Criminal Evidence (Act of 1984).

120
Criminal Defence (General) Regulations 2013

121
Legal Aid Agency, Criminal Legal Aid Manual: Applying for legal aid in criminal cases in the magistrates’ and
Crown Court, October 2020, 48. https://assets.publishing.service.gov.uk/government/uploads/system/uploads/
attachment_data/file/926398/crimi nal-legal-aid-manual_October_2020.pdf accessed on 22 October 2020.

122
Justice, The Unrepresented Defendant in Magistrates Courts, London, 1971, 5

30
are well-documented. Given that the Legal Aid Agency provides the means test, online
applications for an assisted person allow for easy access to legal aid.123

Attorneys and Civil Society Because state-subsidized legal representation is not available to all
unrepresented accused, private schemes are set up to assist those who are too wealthy for legal
aid but too poor for litigation. Pro bono work by legal professionals such as the Bar Free
Representation Unit 1972, the Advocate (the Bar Pro Bono Unit), Circuits free representation
schemes, and the Solicitors Pro Bono Group has enabled this (Law Works). 124 Legal advice and
assistance are also provided in student clinics and community law centers in collaboration with
various law firms.125

Conclusion

For decades, the United Kingdom has developed and expanded access to legal counsel.
Legislation was enacted to ensure that lawyers were compensated after providing legal services
to an indigent accused. The State's funding allowed law centers to spread throughout England
and Wales, giving people with limited resources access to legal counsel. The State's funding also
allowed for high-quality legal services and the protection of accused people's rights.

https://www.gov.uk/guidance/work-out-who-qualifies-for-criminal-legal-aid accessed on 22 September 2020.

123

230

124
Latham & Watkins LLP, A Survey of Pro Bono Practices and Opportunities in 84 Jurisdictions, 182-191

125
Ibid [no.126]

31
 CHAPTER 5: CONCLUSION AND RECCOMENDATION

5.1 CONCLUSION

Evidently, all accused have the right to legal representation, and states have an obligation to
respect, protect, and fulfill that right in accordance with domestic law and international
conventions. This is to be ensured by various levels of government by appointing a competent
authority to appoint legal representation for the accused in cases where the accused cannot afford
to hire one. The majority of these tools have guaranteed the right at all stages of the procedure,
including pre-trial, trial, and appeal. These treaties also require courts to give the accused and his
or her counsel a reasonable amount of time and necessary conditions to prepare their defense

The right to a fair trial and the right to legal representation have been enshrined in constitutional
provisions or statutes, such as in the United Kingdom, which incorporated ECHR rights into
domestic law. Due to the unrepresented accused's lack of legal knowledge, the executive
implements the legislation through national legal aid schemes for unrepresented indigent accused
and adherence to code of practices by police officers. On a case-by-case basis, the judiciary rules
on the right to counsel in various ways to protect the rights of the accused while adhering to the
law. Thus, the right to counsel effectively protects other rights of the accused, such as the right to
remain silent, the right against self-incrimination, the presumption of innocence, the right to
defend, and upholds equality of arms and procedural fairness. Given the nature of the common
law system, the State's international obligations, the prevalent poverty, and the accused's lack of
legal knowledge in Kenya, the need for counsel for the unrepresented accused is a problem that
must be addressed. Kenya has a strong constitutional framework that informs statutes that protect
the right to counsel, with the exception of minor ambiguity.

The Criminal Procedure Code lacks a provision on the right to state-funded representation or
legal counsel of choice, the Legal Aid Act lacks subsidiary regulations for its implementation,
and no legislation has defined substantial injustice. The courts facilitate this right by appointing
an advocate in the interest of justice. The courts ensured that this right was not violated and that
it was extended to vulnerable groups such as children. The children, however, are still

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unrepresented, and the police fail to inform the accused of their right to counsel. The
unrepresented accused primarily seeks counsel from the private sector.

Some of the challenges the State faces in realizing this right include a lack of lawyers, an
underfunded and underpublicized NLAS, a limited scope of state-funded legal representation as
provided in the pro bono and pauper brief directions, and a high percentage of poor people in the
criminal justice system who cannot afford counsel. The best practices in the UK and South
Africa from which Kenya can learn to overcome some of its challenges include legislation on
informational rights in relation to the right to counsel, the establishment of structured private
schemes, and the establishment of an effective national legal aid scheme.

5.2 RECOMMENDATION

The importance of having a solid and coherent legal framework for legal aid cannot be
overstated. There is a basis for having a cost-effective and sustainable legal aid system, as
stipulated in order to remain in line with current economic realities. Legal aid serves a purpose
because it is a tool of government policy.

Given the nature of legal aid in Kenya, where the accused and provider are separated by a long
distance, laws alone are insufficient to ensure access to justice. As a result, legal aid
organizations play an important role in ensuring that this vital right is upheld.

Based on the findings, the research makes the following recommendations to improve legal
representation:

1. The right to advise a suspect of his right to counsel and state-funded legal representation
should be codified in the National Police Service Act and the Criminal Process Law.

2. The Kenyan government should expedite the Legal Aid Act 2016's implementation in order to
fulfill its purpose and carry out the goals in the National Action Plan 2017–2022, such as
creating a subsidiary rule on the standards for the impoverished person's means test.

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3. The government should raise national public awareness of the right to counsel and the many
avenues to get it through courts, police stations, and NLAS in collaboration with the civil society
organizations.

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BIBLIOGRAPHY

LIST OF STATUTES

NATIONAL STATUTES
Constitution of Kenya 2010.

Criminal Procedure Code (Act No. CAP 75).

Legal Aid Act (Act No. 6 of 2016).

INTERNATIONAL STATUTES
African Charter on Human and Peoples’ Rights, 27 June 1981, 1520 U.N.T.S. 217.

International Covenant on Civil and Political Rights, 16 December 1966, 999 U.N.T.S. 171.

Universal Declaration of Human Rights, United Nations 1948.

Principles and Guidelines on the Right to a Fair Trial and Legal Assistance in Africa (as adopted
by the African Union 2003).

LIST OF CASES

Pett v Greyhound Racing Association (1968) ECA

BOOKS
Amondi C, ‘Legal Aid in Kenya: Building a Fort for Wanjiku’, in Yash Pal Ghai and Jill
Cottrell Ghai(eds), The Legal Profession and the New Constitutional Order in Kenya, Strathmore
University Press,2014,201-219.

Ghai YP, ‘The Legal Profession: Themes and Issues’, in Yash Pal Ghai and Jill Cottrell
Ghai(eds), The Legal Profession and the New Constitutional Order in Kenya,
Strathmore,University Press,2014, 1-31.
Kiage P, Essentials of Criminal Procedure in Kenya, LawAfrica, Nairobi, 2014.

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Rawls J, ‘A Theory of Justice’, Belknap Press of Harvard University Press, Cambridge
Massachusetts, 1971, 72-75.

JOURNAL ARTICLES
Cole R J V, 'Between Judicial Enabling and Adversarialism: The Role of the Judicial Officer in
Protecting the Unrepresented Accused in Botswana in a Comparative Perspective' 11, University
of Botswana Law Journal, 2010.

Evers WM, ‘Social Contract: A Critique’, 1(3), Journal of Libertarian Studies, Pergamon
Press Great Britain, 1977.

Ogletree C J, 'The Challenge of Providing "Legal Representation" in the United States,

South Africa, and China', 7 (47), Washington University Journal of Law & Policy, (2001).

Ritchie D G, ‘Contributions to the History of the Social Contract Theory’, 6(4), Political
Science Quarterly, the Academy of Political Science, 1891.

Steele W W, ‘The Doctrine of Right to Counsel’, 23(3), South Western Law Journal, 1969.

Wascilzuk M K, ‘Substantial Injustice: Why Kenyan Children are Entitled to Counsel at

State Expense’, 45(1), International Law and Politics, 2012.

Zhang J, ‘Fair Trial Rights in ICCPR’, 2(4), Journal of Law and Politics, 2009.

REPORTS AND POLICIES

Australian Government, a single framework of access to justice in the federal civil judicial
system: A guide for future action ‘2009, Attorney General Department.
Kenya National Commission of Human Rights, Annual Report and Financial Statements for the
period 2016/17, 2017, 31. International Law and Politics, 2012,302.

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INTERNET SOURCES
Malombe D Mavenjina Medi Mbataru S, ‘Kenya’s Regional and International Human Rights
Obligations’,Kenya Human Rights Commission Publications, 23 August 2016, 1-17.
https://www.khrc.or.ke/mobilepublications/ economic-rights-and-social-protection-er-sp/126-
kenya-s-regional-and-international-human-rightsobligations/file.html accessed on 12 December
2022

United Nations Office on Drugs and Crime, Global Study on Legal Aid: Country Profiles,
2016,139.
https://www.unodc.org/documents/justice-and-prison-reform/LegalAid/GSLA
Country_Profiles.pdf accessed on 12 DECEMBER 2022.
K.I Laibuta{2010)’Access to Justice: An Appraisal of Policy and Legal framework
<http://erepository.uonbi.ac.ke/handle/11295/15704>last accessed on 12 December

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