Improving Access to Justice and Legal Aid (KE0039)

Brief Description of the Commitment

The commitment will build on the milestones of the previous action plan to enhance access to grassroots justice, digitized justice and financing. In the period of the plan, we hope to achieve increased financing for the Judiciary to implement the Alternative Justice Systems Policy and the National Legal Aid Service to operationalize the Legal Aid Fund. and the SGBV Courts and localize access to justice using the Mombasa County Government as a pilot. Finally, Planning to enhance accessibility of digitized justice to the most vulnerable and disadvantaged populations in Kenya through implementation of a pilot programme involving community-based paralegals.

Problem Definition

The commitment seeks to address the inaccessibility of the formal courts and broader challenges in accessingjustice. The most affected are vulnerable, poor and marginalized communities who are unawareof theavenues to seek justice and unable to effectively manage conflict. The barriers to access justiceareexperienced countrywide with marginalized counties experiencing a widened justice gap. Access tojusticehas been a longstanding problem that has greatly impacted affected individuals and communities. In Kenya, after independence, the adoption of the formal justice system did not ameliorate the situation.

What are the causes of the problem? Majority of 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. However, there is an interplay between the formal and informal justice systems, evident 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 use of alternative justice systems i.e. AJS and courtannexed mediation. Kenya is one of 3 countries in the world that has formalized its traditional and other informal mechanisms used in accessing justice. 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. Since the adoption of the AJS Policy in 2020, the Judiciary’s National Steering Committee on the Implementation of the AJS Policy (NaSCI-AJS) has been systematically operationalizing the policy. However, the NaSCI-AJS has been heavily reliant on funding from development partners and civil society actors. This funding model undermines the sustainability of AJS. The reason behind this has been the under-funding of the Judiciary. While the Judiciary Fund was operationalized in 2022 and the annual budget for FY 2022/2023 increased by Kshs 3 billion, the prioritization of AJS remains a challenge. On the other hand, 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 to provide services that are affordable, accessible, sustainable, credible and accountable. However, Kenya is yet to achieve the benefits of the Act. Due to limited budgetary allocation, some provisions of the Legal Aid Act that remain unrealized including: the operationalization of the Legal Aid Fund for financing, accreditation of community paralegals and legal aid providers, establishment of justice advisory centers 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. A majority of NLAS activities are supported by development partners who are bound by time and specific targets. Finally, the Government has digitized its services. Justice services are also digitized in 13 out of the 47 counties. However, vulnerable populations face a number of challenges in accessing digitized justice services. For example, the digital platforms for filing civil cases are purely in English language, disability unfriendly and complex for digital illiterate litigants.

Commitment Description

In the previous years, we have seen an increase in the budgetary allocation for the Judiciary by Ksh 3 billion. Further, the Judiciary Fund was operationalized 12 years after it was provided for in the Constitution of Kenya. The Judiciary Fund will strengthen the financial independence of the Judiciary. With increased funding, the Judiciary can allocate resources towards the implementation of the AJS policy. A pilot was launched to support access to digitized justice through an ICT Centre. The ICT Centre was designed by Kituo cha Sheria. Through the centre, community paralegals provided ICT support to individuals seeking to lodge cases in the e-filing platform and those participating in virtual courts. Conversations are in high gear to set up a similar model with the plan to roll up Huduma desks for ICT support. Finally, there have been citizen- state dialogues on AJS and how it can be operationalized. The citizen dialogues have occurred in collaboration with the NaSCI-AJS and its partners. Thus far, county action plans have been launched in Kajiado, Lamu and Turkana Counties while development is underway in other Counties including Uasin Gishu, Nakuru, and Samburu.

Proposed Solution

The solution we are proposing is an extension of previous efforts. We are proposing to provide increased support to vulnerable communities to access digitized justice through the Huduma desks. Community-based paralegals will be involved in the provision of services. With technological support, vulnerable communities will have enhanced access to justice. We are proposing to engage the County Government of Mombasa to participate specifically in a localization of financing for justice programme. The localization efforts would support previous plans to develop a co-referencing mechanism between AJS practitioners and the County Government of Mombasa’s Legal Aid Unit.

Desired Results

We would like to produce the following outputs: Increased Government financing at national and local level for grassroots justice initiatives such as AJS. Enhanced access to digitized justice for poor and vulnerable self-representing litigants Operationalization of the Legal Aid Fund provided under the Legal Aid Act Increased participation of local communities in the development and implementation of the OGP commitment of access to justice In terms of behavioral change, we hope to make the Government more sensitized to the needs of vulnerable and poor populations when justice solutionsare being designed. We wish to create a more inclusive, diverse and equal society through the access to justice commitment. In addition, we hope that the Government is able to see that investing in grassroots justice is one of the pathways to achieve better economic outcomes and stability for the country.

Commitment Analysis

1. How will the commitment promote transparency? Citizens will have more information on policies, platforms and plans. Hence the Government will be more transparent.

2. How will commitment help foster accountability? The commitment will include citizen-government interactions that will foster more accountability.

3. How will commitment improve citizen participation in defining, implementing, and monitoring solutions? The commitment itself focuses on public participation. The adoption of community-based paralegals in providing ICT support services means the opening up of participation spaces. The citizens will also be involved. Citizens will be proactively engaged at the local level through AJS structures. They will also be engaged at national level

Commitment Planning (Milestones | Expected Outputs | Expected Completion Date)

Work with relevant institutions to provide adequate funding for the implementation of the AJS Policy and the operationalization of the Legal Aid Fund | Increased understanding of the importance of investing in grassroots justice Increased funding for justice Secured increased | December 2026

Enhance coreferencing of cases between the Mombasa Legal Aid Unit and AJS Mechanisms | Enhanced localized justice | May 2027

Support the establishment and adoption of community-based paralegals in ICT Huduma desks | Implementation of Huduma desks with community-based paralegals providing ICT support, improving access to digitized justice for minorities and Indigenous and marginalized communities Adoption and integration of community-based paralegals in ICT Huduma desks, ensuring accessibility of digitized justice services to esp. to minorities and marginalized | January 2027

Action Plan Review

Commitment 8. Access to Justice