There’s a minimal chance for a Kenyan seeking free legal aid from the state to get it without the case being dragged and quality of representation waned,a Judiciary report now says.
The National Council of Administrative Justice report shows that the Legal Aid office under the office of Attorney General Dorcas Oduor is inefficient, slow and has a huge case backlog.
Children’s cases and those touching on criminality, which are the most common, suffer the most.
The office dispensed with barely half of the cases filed in the 2023- 24 financial year, thereby lending credence to calls by civil society actors that it is ripe for reforms.
In the year under review, the report says, the National Legal Aid Service received 3,391 matters requiring legal aid, of which only 1,139 were successfully handled, leaving 2,250 pending.
A paltry 891 children’s matters were resolved out of the total of 2,673 received, as 1,782 remain unattended.
The office will close 2024 with an even higher backlog. Other data show that the office received 76 land matters with 32 handled and 44 pending; 79 employment matters with 36 dispensed with and 43 unresolved; and 32 small claims matters with 20 resolved and 10 pending.
Of the 54 cases relating to family divorce, matrimonial and succession issues received, 21 got sorted while 33 remain unresolved.
The office also got 477 criminal matters and dealt with only 139, leaving 338 as pending.
The National Legal Aid Service is the State Agency established by the Legal Aid Act, 2016, with the mandate to coordinate provision of legal aid in the country, giving effect to Article 19 (2), 48 and 50 (2) (g) and (h) of the constitution on access to justice.
It also regulates the legal aid services, which were mostly offered by civil society organisations, to ensure a coordinated and collaborative approach to legal aid and for purposes of standardisation and quality assurance.
Lobbies, like the Kenyan Section of International Commission of Jurists, have been rallying for reforms in the legal aid provision in the country, terming the Service as broken.
ICJ says the body is structurally inadequate and should be made autonomous, its processes reformed and given more funds to better serve Kenyans needing legal services but cannot afford it.
The agency should be overhauled and its parent law amended to recognise community paralegals, to enable those who cannot afford lawyers to also access justice.
Evidence gathered from the ICJ survey demonstrates that there exist gaps in legal frameworks, limiting effective legal aid access and delivery.
This extends the institutional inefficiencies of NLAS, which faces funding constraints.
The survey recommended, among others,the need to lobby for the operationalisation of the Legal Aid Fund, which is meant to fund service delivery through NLAS.
The ICJ report also says the agency is poorly resourced and has limited human resources, including a limited number of advocates available, making it struggle to meet the demand for legal aid services.
“This shortage results in overstretched workloads and compromises the quality-of-service delivery,” it says.
The lobby’s survey also flags the lack of an operationalised Legal Aid Fund, even though Section 29 of the Legal Aid Act establishes the fund mandated to meet the expenses of service providers.
“This fund, however, is yet to be operationalized as a result, the lack of it exacerbates financial constraints, making it difficult to pay legal aid service providers and cover operational expenses,” it reads.
The lack of autonomy restricts its decision-making capabilities and limits its operational flexibility. Securing administrative autonomy for the Service could lead to better implementation of the legal aid law.
“[The] NLAS’ ability to effectively implement the Act remains problematic as all its decisions are subject to administrative review by the OAG.”
Further, the Legal Aid Act, 2016, does not provide enough protection to paralegals serving in communities by not recognizing them.
This undermines the provision of legal services to poor Kenyans.
