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

Action Plan Review

Commitment 7. Access to Justice

● Verifiable: Yes

● Does it have an open government lens? Yes

● Potential for results: Substantial

Lead institutions: Alternative Justice Systems (AJS) Implementation Committee; the Employment, Labour and Relations Court; and the National Legal Aid Service

For a complete description, see Commitment 7 in Kenya’s 2020–2022 action plan at:

https://www.opengovpartnership.org/documents/kenya-action-plan-2020-2022/.

Context and Objectives

The Kenya Constitution (2010) provides an overarching guarantee on access to justice for all persons. However, studies show that access to justice has been hampered by high court fees, geographical access, understaffing of the judiciary, and a case backlog. [53] The constitution further provides for the use of alternative forms of dispute resolution for all citizens. The Afrobarometer Round 8 Survey [54] showed that Kenyans generally embraced out-of-court settlements compared to courts and tribunals. The Justice Needs and Satisfaction in Kenya Survey [55] indicated that only 10% of Kenyans use formal justice systems for dispute resolution, implying that most Kenyans use informal mechanisms. Additionally, Covid-19 has rendered the courts increasingly difficult to access due to technology barriers, so community-based alternative justice systems (AJS) are providing a better platform for justice administration. 

However, AJS face challenges like a lack of formal recognition, gender injustices, exclusion of marginalized and vulnerable groups, and insufficient regulation, which limits accountability. The Alternative Justice Systems policy (August 2020) ^[56] gives AJS guidelines for both the judiciary and all justice-sector institutions. The Legal Aid Act (2016) effected constitutional stipulations on facilitating access to justice and social justice; established the National Legal Aid Service; and provided funding for legal aid. However, implementing the legal and policy frameworks has been slow. The Legal Aid Act establishes a legal aid fund, but this isn’t operational due to funding constraints. The AJS policy framework and implementation process is still new. 

In the 2012–2013 NAP, Kenya promoted transparency in justice administration through vetting judicial officers and integrating new technologies to improve expediency in judgements.

This commitment covers two broad objectives: (i) to increase the state’s capacity to provide legal aid for indigent clients and (ii) to lead implementation of the AJS policy. The commitment proposes activities to speed up implementation of the legal and policy frameworks, thus enhancing access to justice in the country. Through citizen-government dialogue, the commitment will raise public awareness and offer citizens an opportunity to give feedback on AJS mechanisms and policy. Milestone 3 will bring together government budget actors to set aside the much-needed funds that will allow both state and non-state legal aid providers to expand access to justice. The commitment further seeks to have model programs to address two key challenges. Milestone 2 details the government piloting AJS in Mombasa county, where it will train the Mombasa Legal Aid Unit (MLAU) on AJS and link them with the national judiciary so that they can refer cases that qualify for AJS. Milestone 4 proposes a program to offer support to self-representing indigents, who are faced with technological challenges.

This commitment is relevant to OGP values of access to information, civic participation, and public accountability, and further promotes use of technology and innovation to enhance accountability. It fosters public accountability by supporting legal aid, which is critical to check government overreach, especially in criminal proceedings a loss of liberty is at stake. The commitment also strives to make justice mechanisms cheaper, faster, and easier to use, and adopts technology and innovation to increase the reach of justice mechanisms, especially important during a pandemic where physical and in-person interactions are limited. Overall, this commitment will enable citizens to exercise their right to information on their own proceedings as well as their right to hold the justice system accountable for timely and efficient resolutions. It will also allow citizens to access remedies for their disputes when warranted. Finally, Milestone 1 supports citizen-government dialogue to create awareness and promote citizen input while implementing AJS. This dialogue will enhance access to information by publicizing the AJS policy.

Potential for results: Substantial

By targeting the alternative justice mechanisms mostly used by Kenyans, this commitment promises significant changes for citizens’ access to justice. One AJS challenge is co-referencing case information between the courts and AJS mechanisms. This commitment offers a practical way to facilitate court-AJS cooperation and provides a learning experience for the involved actors like the Mombasa Legal Aid Unit, judicial officers, and CSOs to apply AJS while processing cases. This will translate to a greater number of cases diverted to AJS mechanisms, a decreased backlog in court cases, and more resolved cases across both justice mechanisms. Successful lobbying for legal aid funding can strengthen legal aid services and enable better access to justice. Finally, the commitment addresses technological challenges faced by citizens in accessing justice.

Milestone 4 addresses technological barriers faced by self-representing indigents. Since the COVID-19 pandemic began, the judiciary introduced an online platform with e-filing systems and online court proceedings. Some self-representing litigants had difficulty navigating the online services and lost track of their cases. If Milestone 4’s Virtual Court Center becomes fully operational, the judiciary can refer self-representing litigants who need technological support to the center, where they would be assisted in processing their applications, filings, and in attending virtual court sessions.

This commitment is timely given the upcoming elections. Following the post-election violence in 2007–2008, organizations such as Kituo cha Sheria used AJS for accountability. Kituo adopted AJS so victims and perpetrators could come together to resolve issues and reconcile. Kituo cha Sheria finds AJS a strategic policy to be implemented during the forthcoming election period.

Opportunities, challenges, and recommendations during implementation

● Leverage external support to enhance outcomes: This commitment aligns with the EU & UNODC Programme for Legal Empowerment and Aid Delivery ^[57] and has attracted support by other organizations such as the International Development Law Organization ^[58] and the state and nonstate actors listed in the action plan. Commitment implementers could leverage this multistakeholder support to enhance execution of the activities and realize the desired impact.

● Ensure resource availability: Resource mobilization and funding will be a challenge. Kenya’s judiciary has received declining funding over the past four financial years, ^[59] which may affect the commitment’s success. Implementers could develop and implement a detailed roadmap of specific targets and activities needed to achieve each milestone’s objective. For example, Kituo cha Sheria ^[60] reported that the commitment- cluster members individually fundraised while also collectively lobbying government and identifying finance partners.

● Enhance the scope of Milestones 2 and 4: Milestones 2 and 4 promise substantial changes but are limited to pilot activities in Mombasa and Nairobi. Implementers should create a plan, backed by adequate resources, for expanding the programs across the country in order to yield a transformative impact.

● Publish more judicial information: Consider publishing all relevant information, not only for this commitment, but also for other judicial processes and reforms to enhance transparency and promote citizen awareness and engagement.

Results Report

Commitment 7. Access to Justice

[The Judiciary, National Legal Aid Service, Kituo Cha Sheria]

Context and Objectives
The judiciary, being one of the three branches of government, is a critical player in the advancement of open governance. It acts as a watchdog of the executive and legislature by ensuring that all administrative actions of the government and the laws passed by the legislature are lawful and compliant with the Kenyan Constitution. The judiciary also ensures citizens’ right to oversee the executive and legislature as well as to participate in critical decisions. This commitment aimed to increase the state's capacity to provide legal aid for indigent clients and implement the Alternative Justice Systems (AJS) policy. [99]

These objectives are informed by the challenges that ordinary Kenyans face in accessing the judicial system, including high court fees, limited geographical access, lack of adequate staff, and case backlog. [100] It is hoped that promoting alternative justice systems, backed by the Kenyan judiciary, will help to supplement efforts in securing the rights of Kenyans of access to justice. Similarly, assisting the indigent to access justice, through a state-backed legal aid programme ensures that everyone—irrespective of their financial status—can demand accountability of the actions of the government as well as those in authority.

While this commitment was partly implemented, it faced challenges that prevented its full implementation. This included delays from obtaining the requisite approvals from the Chief Justice and Chief Registrar of the Judiciary, lack of capacity among the paralegals expected to assist in legal aid, and lack of funding. [101]

Did it Open Government? Marginal
The Kenyan Judiciary and civil society partners made modest progress in strengthening access to justice by sensitizing citizens on AJS policy through piloting a virtual court center for labor disputes and advocating for greater legal financial aid. Initial progress was made around government-citizen dialogues on AJS to supplement the formal justice system in resolving disputes. The objective to co-reference cases between the Mombasa Legal Aid Unit and AJS reported little traction with limited conversations about first establishing the county’s justice needs. While there was no evidence of operationalization of the Legal Aid Fund, a Judiciary Fund was launched. Civil society organization Kituo Cha Sheria established a virtual court center that assisted over 300 indigent clients in accessing the Employment and Labor Relations Court.

The citizen-government dialogues sought to create acceptance of AJS policy by sensitizing citizens on its applications, robustness, and formal recognition. The judiciary and civil society engaged the public across the country as well as community elders in the North Rift, [102] Turkana, [103] and Kajiado [104] counties. A key concern raised in the dialogues was the slow-paced nature of resolving disputes through the formal justice system, noting that there is currently a backlog of approximately 617,000 cases. [105] Land and succession matters were among the key disputes which formed a bulk of the cases before the formal justice system, and are targeted for resolution through AJS mechanism.

The CSO Kituo Cha Sheria, who co-led the implementation of this commitment, convened a public interest regional colloquium which was graced by Kenya’s Chief Justice on 7–8 March 2022. [106] On social media, the Alternative Justice Systems Kenya taskforce runs a vibrant Twitter feed through which the online community is engaged in their activities. Executive Director of Kituo Cha Sheria noted that the public has been generally receptive to the idea of AJS as the majority have historically preferred using AJS rather than formal justice systems to address their issues, save for a few legal professionals who view it as a threat to their profession. [107]

The second milestone sought to enhance the co-referencing of cases between the Mombasa Legal Aid Unit and AJS mechanisms, but only recorded limited progress. Kituo Cha Sheria alluded to the fact that they commenced dialogues to establish the AJS needs for Mombasa County through a joint survey with the Kenyan Judiciary. However, they did not provide any evidence of these discussions. Executive Director of Kituo Cha Sheria shared that not much progress had been made and suggested that this activity needs to be carried over to the next action plan cycle even as they consider the possibility of introducing similar initiatives in other counties within Kenya. Lack of funding was cited as the biggest implementation hurdle.

The third milestone, aimed to source funding to implement the AJS policy and operationalize the Legal Aid Fund, was not started. [108] Efforts to meet with the Treasury as well as the National Legal Aid Service did not materialize. Kituo Cha Sheria noted that the completion of this milestone was highly dependent on the operationalization of the Judiciary Fund, which took effect on 1 July 2022. [109] After its launch, the Kenyan Treasury Department deposited Ksh 9 billion into the kitty. [110] It remains to be seen whether this will translate to the implementation of the milestones and other activities which were dependent on the operationalization of the Fund. Kituo Cha Sheria also perceived the two-year timeline as rather ambitious and suggested that the milestone be carried over to the next action plan cycle. [111]

Under the fourth milestone, Kenya established a virtual court at Kituo Cha Sheria’s ICT Centre to enable indigent self-representing litigants to access the Employment and Labor Relations Court in Nairobi. The court resolves disputes between employees and employers in both the private and public sector. Shift to online judicial process in response to the COVID-19 pandemic further excluded indigent citizens with employment disputes. The virtual court helped indigent people to access court sessions, digitally file their court documents, lodge complaints, and virtually attend court sessions before judges for the hearing of their cases. [112] Over 300 indigent people benefited from the program in its pilot phase in 2022 despite the center operating with only four laptops. Other challenges noted in the implementation of this milestone include lack of capacity of community-based paralegals, delayed approvals by the Chief Justice and Chief Registrar of the Judiciary, and lack of financial support.

The last milestone under this commitment was for Kenya to benchmark with other OGP global justice actors using technology to promote access to justice. Executive Director of Kituo Cha Sheria reported that conversations between the Kenyan OGP community and its regional counterparts with an access to justice commitment, such as Sierra Leone and South Africa, had commenced. The Kenyan OGP community also organized panel discussions with Sierra Leone on AJS implementation, engaged in broader conversations with all regional OGP members, and discussed a five-year access to justice strategy in collaboration with the African Center of Excellence for Access to Justice. In addition, Kenya intends to engage OGP to make access to justice a priority area in the coming years. However, the IRM did not receive evidence of these engagement. As work on this milestone continues to be underway, Kituo Cha Sheria suggested that for it to be carried over to the next action plan cycle. [113]

Looking Ahead
Kenya is among the few OGP members that are pioneering commitments on alternative justice systems. Specific recommendations on how Kenyan access to justice champions can continue their efforts are provided in the 2023 IRM Co-Creation Brief. [114] Moving forward, reformers can also take the following into consideration:

The government could consider allocating more budget to the judiciary to enable the scaling up of AJS activities to other counties beyond Mombasa and Nairobi. The government can also consider additional funding for setting up more virtual court ICT centers to serve a wider spectrum of indigent clients.