Introduction
The main justification for legal aid in Kenya’s criminal justice system emanates from the need to mitigate any palpable injustice that may result from the adversarial nature of the process.Footnote 1 The criminal justice system has been defined as a network of government and private agencies intended to manage accused and convicted persons, including those with disabilities.Footnote 2 The latter suffers from pervasive poverty levels in Kenya and can only turn to legal aid in order to exercise their right to access justice.Footnote 3 Be that as it may, legal aid challenges for accused persons with disabilities are still front and centre in Kenya’s criminal justice system.
The disability rights movement in Kenya, which is the term given to various interest groups that represent persons with disabilities, has coalesced around the view that the country’s legal aid framework is inadequately attentive to the needs of accused persons with disabilities.Footnote 4 One of the reasons given for this is the limited application of the outcomes approach in Kenya’s legal aid framework.Footnote 5 The outcomes approach not only recognizes the state as a duty bearer in terms of the right to legal aid, but also aims to ensure that the right is effectively implemented in Kenya’s criminal justice system.Footnote 6 On the contrary, the process or limited model does not adequately allow for the effective management of accused persons with disabilities in the criminal justice system. As such, it is largely meant to promote superficial procedures whose aim is to ensure the efficiency and accuracy of fact-finding as opposed to preventing the state from treating persons with disabilities as objects within the country’s adversarial system.Footnote 7 The process approach does not take into account the intrinsic or substantive value of legal aid to persons with disabilities, such as that of ensuring their right to be represented by an advocate.Footnote 8 On the contrary, its aim is largely limited to resolving legal technicalities or procedural shortcomings raised by accused persons with disabilities.
This article does not seek to answer the specific question whether legal aid should be provided. Rather, it uses the Protocol to the African Charter on Human and Peoples’ Rights on the Rights of Persons with Disabilities in Africa (the African Disability Protocol)Footnote 9 to illuminate the method by which legal aid decisions should be made to best further the goal of protecting the right to access justice for accused persons with disabilities. Part one is this introduction. The nature of legal aid services for accused persons with disabilities in Kenya’s criminal justice system is interrogated in the second part. It examines the country’s statutory basis for the right to legal aid and the approach that Kenya has taken when it comes to implementation. Part three analyses the African Disability Protocol’s emphasis on outcomes-based justice in legal aid programmes. Searching for a solution, part four examines ways in which legal aid for accused persons with disabilities can be enhanced, taking into account the outcomes approach. Part five is the conclusion.
The nature of legal aid services for accused persons with disabilities in Kenya’s criminal justice system
The Constitution of Kenya, 2010 (the Constitution) defines disability from a medical perspective to include “any physical, sensory, mental, psychological or other impairment, condition or illness that has, or is perceived by significant sectors of the community to have, a substantial or long term effect on an individual’s ability to carry out ordinary day-to-day activities”.Footnote 10 This definition situates disability within the individual as opposed to the environment.Footnote 11 The latter, according to the social model of disability, is responsible for imposing limitations on the participation of persons with disabilities in the society, including in access to justice.Footnote 12 Particularly, it requires the diversity of persons with disabilities to be taken into account as much as possible when providing legal aid in criminal justice systems across the globe.
In Kenya, a lack of legal representation does not bar the court from continuing with legal proceedings against an accused person with disability who may otherwise be eligible to free legal aid at the state’s expense.Footnote 13 This is evidence that Kenya’s legal aid framework is based on a limited version of the outcomes approach. Moreover, it minimally reiterates the African Disability Protocol’s commitment to access of justice for accused persons with disabilities as will be discussed in detail below.
The process of legal aid for accused persons with disabilities in Kenya’s criminal justice system
The right to legal aid in Kenya falls under fair trial rights in the Constitution. The latter is an absolute right, which cannot be limited, while representation is a qualified constitutional right.Footnote 14 Article 50(2)(g-h) of the Constitution guarantees every accused person the right to a fair trial, which includes the right “(g) to choose, and be represented by, an advocate, and to be informed of this right promptly; (h) to have an advocate assigned to the accused person by the State and at the State’s expense, if substantial injustice would otherwise result, and to be informed of this right promptly”.Footnote 15
In practice, the foregoing provision of the Constitution is dealt with contemporaneously but with most judges and magistrates focusing on article 50(2)(g) as opposed to article 50(2)(h).
Article 50(2)(h) of the Constitution deals with instances where the state must assign an advocate to an accused person with disability while article 50(2)(g) deals with the issue of informing accused persons with disabilities of their right to be represented by an advocate of their choice.Footnote 16 The latter implies that the failure to inform an accused person with disability of his or her right to legal representation may render any subsequent trial a nullity.Footnote 17 However, certain scholars have stated that the failure to inform an accused person with disability of his or her right to legal representation will not necessarily have the effect of vitiating the proceedings in a criminal trial unless it is proved that the omission occasioned a miscarriage of justice.Footnote 18 Besides, the court is not obliged to keep proceedings in abeyance pending the availability of an advocate.
According to Cole, constitutional provisions on legal aid alone, without sufficient mechanisms, do not offer protection of fundamental human rights.Footnote 19 To this end, it can be argued that rights processes under article 50(2)(g-h) are vague and unreal for most accused persons with disabilities. This is mainly because they are process-orientated as opposed to outcomes-oriented. The meaning of the term “process-oriented” is very diverse. For example, in philosophy, Rescher has used the term “process-oriented” to contrast between things and processes.Footnote 20 In pedagogy, the phrase is applied to emphasize the process, rather than the outcome of writing.Footnote 21 In this article, a process-oriented approach in legal aid is one that values the integrity of the system above the results it actually generates.
Procedures serve an important legitimating function, especially for judicial institutions. In terms of legal aid, the following five procedural components of adjudication are considered essential to the legitimacy of the final decision: (1) litigants, not courts, initiate legal aid applications; (2) the applications are presented through an adversarial system in which two or more competing parties give their conflicting views; (3) a rationale must be given for decisions; (4) decisions must refer to, and be restricted by, an identifiable body of law and (5) the decision maker must be impartial.Footnote 22 However, such legal benchmarks constrain the varied legal aid needs of accused persons with disabilities due to their potential to deliver limited results.Footnote 23 This is because of their likelihood to create entry and formal barriers for accused persons with disabilities, which may impact negatively on their ability to “enjoy” or “benefit” from interactions with criminal justice systems.Footnote 24 The barriers limit not only the ability of accused persons with disability to use the justice system, but also their ability to contribute to it and to society generally.Footnote 25 As a result, the requirements for equal rights to legal aid remains limited to only ensuring access to superficial processes as opposed to realizing tangible outcomes.Footnote 26
Those who argue against a process-based approach to legal aid are motivated in part by the perception that it seeks to limit the entitlement of accused persons with disabilities to benefit from their legal aid rights.Footnote 27 Criminal justice courts are unwilling or unable to ensure the right to legal aid due to political sensitivities and biases.Footnote 28 As will be discussed in the next sub-section, courts appear to give little consideration to substantive legal norms, particularly how the enactment and enforcement of legal aid laws may help to reduce inaccessibility of the criminal justice system by accused persons with disabilities. The criteria, such as the ones stipulated by Allison,Footnote 29 have failed to sufficiently articulate the real links between disability and the right to access justice. They do not adequately address material representation barriers that prevent accused persons with disabilities from accessing the criminal justice system, such as high legal fees. Secondly, the criteria make no mention of how the state and its organs should go about protecting the right to legal aid for persons with disabilities. As such, any interventions by states may not be empowerment-specific as they do not deal with the circumstances of accused persons with disabilities. By focusing on process-oriented criteria to legal aid, judges are effectively precluding a broader enquiry into the need for more government action that is geared towards effectively realizing the end result of legal aid for accused persons with disabilities, which is greater access to justice.Footnote 30
Criticism of Kenya’s process-oriented approach to legal aid
The processes-oriented approach has been criticized as being an abstraction and unable to facilitate the concrete experiences of accused persons with disabilities in court.Footnote 31 For instance, in Kenya, a lack of legal representation is not a bar to the continuation of proceedings against an accused person with disability.Footnote 32 This was the case in Shaban Juma v Republic Footnote 33 where the applicant petitioned the High Court of Kenya alleging that the state had violated his fundamental rights by failing to provide him with counsel to assist him in court since he did not understand the law. The court held that it would be pointless to order the Deputy Registrar of the High Court to appoint counsel at the state expense for the applicant since there were no funds allocated for that purpose. The decision may be criticized for failing to engage with the real outcomes of legal aid, which is broader access to justice.
The Constitution has deferred the implementation of the right to legal aid for persons with disabilities to the democratically legitimate outcomes of the country’s political process.Footnote 34 The guarantee of fair trial rights requires Parliament to enact legislation providing for the right to legal aid of everyone, including accused persons with disabilities. The Legal Aid Act (LAA)Footnote 35 was enacted in 2016 in order to regulate the procedural content and operation of the right to legal aid. Within this framework, legal aid includes legal advice, legal representation and assistance in resolving disputes by alternative dispute resolution, drafting of relevant documents and effecting service incidental to any legal proceedings and reaching or giving effect to any out-of-court settlement.Footnote 36
Moreover, the LAA defines persons eligible for legal aid to include indigent persons resident in Kenya and who are either Kenyan citizens, children, refugees, victims of human trafficking, internally displaced persons or stateless persons.Footnote 37 It means that legal aid is a service predominantly for the poor. Although the LAA has made provision for specific groups, there is no express mention of persons with disabilities. This gap may undermine the public’s faith, especially persons with disabilities, in the operations of the scheme. It means that persons with disabilities must prove that they are unable to pay for legal services or that a substantial injustice would otherwise result if they are to qualify for free representation.Footnote 38
An accused person with disabilities who cannot prove that they are unable to pay for legal services or that a substantial injustice would result is not eligible for legal aid. In David Macharia Njoroge v Republic the court held:Footnote 39
“Article 50 sets out a right to a fair hearing, which includes the right of an accused person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law by ensuring that any accused person, regardless of the gravity of their crime may receive a court appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact or law; where the accused is unable to effectively conduct his or her own defense owing to disabilities or language difficulties or simply where the public interest requires that some form of legal aid be given to the accused because of the nature of the offence.”
The substantial injustice test has been expanded to include accused persons who have committed capital offences where the penalty is loss of life. In John Sakwa v Director of Public Prosecutions and 2 others the High Court observed:Footnote 40
“The Court of Appeal thus expanded the constitutional requirement that legal representation be provided at state expense in cases where ‘substantial injustice might otherwise result’ to include all situations where an accused person is charged with an offence whose penalty is death. The implication of this, in my view, would be that not just the indigent on whose behalf this petition is brought, but all persons, regardless of their economic circumstances, would be entitled, as of right, to legal representation at state expense if they are charged with an offence whose penalty is death.”
It can therefore be argued that the substantial injustice eligibility criterion is an objective test that is intended to ensure the need of Kenya’s criminal justice system to guarantee justice as opposed to the accommodation needs of accused persons with disabilities.
On the contrary, the “indigenity” test involves a gross and largely subjective interpretation of whether an accused person with disability might be able to afford legal representation.Footnote 41 Its purpose is to ensure that the available limited resources are allocated to the more indigent persons with disabilities. In Charles Maina Gitonga v Republic, Footnote 42 the applicant filed an application before the Supreme Court in Kenya alleging among other things the fundamental issue of the right to assistance of counsel in criminal matters and the right to legal representation provided at the state’s expense in cases where substantial injustice would otherwise occur.Footnote 43 The court dismissed that argument and held that legal representation is not an inherent right available to an accused person under article 50 of the Constitution or under section 36(3) of the LAA.Footnote 44 Further, the court said that an accused person has to first establish that he or she was unable to meet the expenses of his or her trial before a lawyer can be appointed to act on his or her behalf.Footnote 45 The authors argue that this is a “heavy handed” approach in the sense that it inevitably implies quite substantial compliance obligations on the part of accused persons with disabilities. Opponents of this approach may also argue that it promotes inequity as there are no standards to measure the level of poverty that will satisfy the granting of legal aid to those who are poorer than others.
Perhaps, a blanket inclusion of persons with disabilities in the LAA as beneficiaries may enhance self-efficacy, self-worth and a sense of community and acceptance of accused persons with disability in the criminal justice system.Footnote 46 However, it may also undermine the nature of legal aid services which historically has been pegged on financial ability as opposed to one’s disability status.Footnote 47 The authors argue for a flexible legal aid standard in Kenya that is based on the needs of persons with disabilities and not the state. This is in line with the concept of distributive justice which requires that accused persons with disabilities be accommodated to the extent reasonably possible by the state as is discussed in the next section.Footnote 48
The other significant challenge to Kenya’s process-based approach is that it contradicts the African Disability Protocol which recognizes the rights of accused persons with disabilities to reasonable accommodation in access to justice. As a result, it is almost impossible to undertake reasonable ex ante [beforehand] assessment of persons with disabilities regarding the type, level, barriers and needs both medically and psychically in order to determine a reasonable accommodation which is appropriate. In particular, under the current Kenyan legal aid regime, there is little prospect of developing a robust ex ante analysis on the needs of accused persons with disabilities in access to justice. This problem is particularly acute with the LAA as it does not make any provision with regards to legal aid as a form of reasonable accommodation. Instead, the LAA relies overly on the discretion of the National Legal Aid Service (NLAS) to determine who is qualified to access free legal aid services at state expense.Footnote 49
There is no law that requires accused persons with disabilities to be assessed in order to determine appropriate legal aid accommodations. The only assessments that are conducted in Kenya are ones that are meant to establish impairment and they evolved out of practice directions and case law.Footnote 50 The reason for the assessment was stated in Republic v Msuya Ngolo Lewis Footnote 51 by the High Court:
“[T]he court must be certain that, the person charged, is fit to stand and understand the trial process and in turn, accord him a fair trial as envisaged under; article 50 (2) (b) of the Constitution of Kenya, 2010. That, failure to conduct the mental assessment, will prejudice the Respondent’s case and therefore the respondent is still desirous to have the mental examination carried out, on the applicant.”
Once impairment is established or perceived, section 166 of the Criminal Procedure CodeFootnote 52 requires that the accused person with disability be precluded from further participating in the proceedings.Footnote 53 This practice constitutes a discriminatory status-based law in violation of article 5(1) of the African Disability Protocol. Such tests for mental capacity offend the principle of indirect discrimination because of their disproportionate impact on accused persons with intellectual and psychological disabilities.Footnote 54 An assessment must take into consideration whether reasonable accommodation, or the failure thereof, may affect the accused person with disability and cause inequality in the criminal justice system.Footnote 55
Inadequate funding structure of legal aid in Kenya’s criminal justice system
One of the main barriers to the effective participation of accused persons with disabilities in access to justice is lack of funds. Kenya’s legal aid funding structure is based on an adversarial tradition that prioritizes trials.Footnote 56 It means that advocates will only be reimbursed if they take part in court proceedings. This approach has resulted in manifest and disproportionate imbalance between the prosecution and the defence in terms of resource allocation. While the Office of the Director of Public Prosecutions is well-established and funded by state resources, the NLAS has remained underfunded since it was established in 2016.Footnote 57
Part V of the LAA establishes and makes provision for the management and workings of the Legal Aid Fund (the Fund). The Fund is managed by the NLAS.Footnote 58 Currently, the Fund comprises: moneys allocated to the NLAS by Parliament for its purposes; grants, gifts, donations, loans or other endowments given to the NLAS; and moneys from any other lawful source.Footnote 59 The Fund is intended to cater for the expenses incurred by the NLAS pursuant to the LAA, including expenses incurred in the representation of persons granted legal aid, remuneration of legal aid providers for services rendered and expenses incurred in providing service.Footnote 60
However, the remuneration of advocates in respect of legal aid cases is usually low. For example, the Practice Directions Relating to Pauper Briefs Scheme and Pro Bono Services provides that advocates who enlist for pro bono services are to be paid an all-inclusive amount of Kshs 30,000.Footnote 61 Relatedly, section 75(4) of the LAA states that the scale of fees determined by the NLAS will be less than the legal fee applicable to persons not aided by NLAS. Such provisions have negatively affected the quality of services provided to consumers of legal aid, including accused persons with disabilities. In most cases, legal aid matters are taken up by junior counsel with limited practice experience. As a result, less time and attention are given to such cases.Footnote 62 In certain instances, trials have been adjourned numerously due to the unavailability of court appointed advocates.Footnote 63
The African Disability Protocol: delivering an outcome-based approach in access to justice
As discussed above, one of the main drawbacks of Kenya’s legal aid scheme in the criminal justice system is that it is not comprehensive enough to ensure equality of outcomes before the law for accused persons with disabilities. It is largely concerned with mere formalities as opposed to promoting the substantive participation of accused persons with disabilities in the justice system. For example, it does not address the economic barriers that bar accused persons with disabilities from participating in court processes.Footnote 64 To fill this gap, it is important to incorporate the provisions of the African Disability Protocol, which have adopted an outcome-based approach in all matters relating to access to justice, including in legal aid. This is so, because it seeks to address the inequalities and power imbalances that have existed between persons with and those without disabilities in criminal courts, when it comes to representation.Footnote 65
The African Disability Protocol was ratified by Kenya on 15 November 2021 and entered into force on 5 May 2024.Footnote 66 Its aim, in terms of legal aid, is ensuring equal opportunities for accused persons with disabilities in access to justice.Footnote 67 This approach ensures that the outcome for each accused person with disability is equal to those of their counterparts without disabilities as regards ensuring the right in access to justice.Footnote 68 It implies the equal ability of accused persons with disabilities to not only participate, but also enjoy and benefit from criminal justice systems as non-disabled people do.Footnote 69 The African Disability Protocol does this by focusing on four access to justice dimensions including distributive, procedural, interpersonal and informational.Footnote 70 An outcomes approach to legal aid should take into account these four access to justice benefits as discussed in the next sub-section.
The distributive justice dimension of access to justice in the African Disability Protocol
The African Disability Protocol is consistent with the concept of distributive justice. Aristotle described distributive justice as being “concerned with the distributions of honour or money or the other things that fall to be divided among those who have a share in the [government]”.Footnote 71 It emphasizes the relationship of the acting parties to society as a whole. Distributive justice requires that things, including services, be allocated to people, including those with disabilities in accordance with a criterion of distribution.Footnote 72
Distributive justice begins with the selection of beneficiaries. It aims to locate the service user at the heart of assessment processes and regards their requirements as paramount.Footnote 73 For example, the beneficiaries of the African Disability Protocol are persons with disabilities. Disability identity is a key dimension of diversity that is distinct from one’s impairment status that “shapes a person’s ways of seeing themselves, their bodies, and their way of interacting with the world”.Footnote 74 According to the African Disability Protocol, disability is conceptualized to “include those who have long-term physical, mental, intellectual, developmental or sensory impairments which in interaction with environmental, attitudinal and other barriers hinder their full and effective participation in society on an equal basis with others”.Footnote 75 Thus, the failure to make access to justice available to accused persons with disabilities on an equal basis with others is both an act of discrimination as well as a distributive injustice issue. The right to access for accused persons with disabilities should not be inferior to that of persons without disabilities.Footnote 76 Be that as it may, the phrase “on an equal basis with others” may be problematic as a meaningful guide to policy formulation. According to Moorhead, “different sections of society have very different needs for legal aid services which cannot be measured in simple terms of equality”.Footnote 77 Simply put, there are no “others”. In this context though, “others” has been used to refer to persons without disabilities.
It means that the African Disability Protocol goes beyond mere formal justice to include an outcomes approach. The latter demands for unequal or different treatment to accused persons with disabilities who may or may not be equally situated in Kenya’s criminal justice system.Footnote 78 In other words, the African Disability Protocol does not insist on sameness in how persons with disabilities should be treated. Instead, it calls for different sorts of goods and services for persons with disabilities.Footnote 79 For instance, it identifies reasonable accommodation as one of the criteria for a disability-centred design in the delivery of justice. Reasonable accommodation, according to the African Disability Protocol, means necessary and appropriate modification and adjustments not imposing a disproportionate or undue burden, where needed in a particular case, to ensure to persons with disabilities the enjoyment or exercise on an equal basis with others of all human rights and fundamental freedoms.Footnote 80 Simply put, reasonable accommodations are adjustments to accommodate the needs of persons with disabilities, including in access to justice.Footnote 81
Particularly, the principle of reasonable accommodation aims at adjusting the criminal justice environments so as to ensure effective participation of accused persons with disabilities. It infers alternatives to overcome court barriers against accused persons with disabilities in order to enable them to be self-participating in Kenya’s criminal justice system,Footnote 82 such as, for example, the provision of legal service accommodations to accused persons with disabilities when dealing with lawyers in order to overcome representation barriers in access to justice.Footnote 83 Accommodations may limit the discretion of advocates to improvise in a manner that may lead to violations of the human rights of accused persons with disabilities.Footnote 84 As such, it is prudent to include a statutory requirement directing that legal aid services be provided in a manner that accommodates the needs of accused persons with disabilities. Nevertheless, the right to reasonable accommodation is subject to restrictions based on a proportionality analysis. The African Disability Protocol requires states parties to provide reasonable accommodation to accused persons with disabilities, unless to do so would occasion a disproportionate or undue burden.Footnote 85
The procedural justice dimension of access to justice in the African Disability Protocol
Decision outcomes are informed by a person’s perceived fairness of a system’s processes and procedures.Footnote 86 The latter focuses on how subjects experience the process through which decisions regarding substantive rights, such as the right to legal aid, are made.Footnote 87 Thus, the manner in which accused persons with disabilities are treated in the criminal justice system can influence their satisfaction independently of either their absolute outcomes or the fairness of those outcomes.
Generally, the provision of legal aid enables accused persons with disabilities to have a broad understanding of the objectives and purpose of legal proceedings.Footnote 88 The African Commission on Human and Peoples’ Rights buttressed the importance of legal representation in 1999: “The right to equal treatment by a jurisdiction, especially in criminal matters, means in the first place that both the defense and the Public Prosecutor shall have equal opportunity to prepare and present the pleas and indictment during the trial”.Footnote 89
This means that procedural-based legal aid services have the potential of ensuring access to justice rights of persons with disabilities. The reason for this is because the use of legal aid as a procedural accommodation removes financial barriers that may hinder the effective participation of accused persons with disabilities when exercising their right to access justice.
Moreover, when legal aid is provided to accused persons with disabilities, their perception of legitimacy of the process increases. Conversely, accused persons with disabilities who do not experience procedural justice in their interactions with the criminal justice sector are more likely to feel marginalized, less valued and excluded from society.Footnote 90 Be that as it may, it is important to note that the subjective judgments of accused persons with disabilities about the criminal justice system might not accurately reflect the objective criteria of the African Disability Protocol.Footnote 91 In this regard, there is a need to bridge the gap between procedural justice and the realities of disability in the context of legal aid in the criminal justice system.
The procedure employed to consider a legal aid request is not specified under the African Disability Protocol. It, however, takes into account individual differences of accused persons with disabilities, including with regards to their participation in criminal courts. Article 13 of the African Disability Protocol requires states parties “to ensure effective access to justice for persons with disabilities on an equal basis with others”.Footnote 92 This is to be achieved “through the provision of procedural, age, and gender appropriate accommodations” in “all legal proceedings” including in criminal proceedings.Footnote 93 This provision recognizes the dangers of essentialism, which seeks to categorize and generalize “disabled people” as a homogenous group.Footnote 94 It means that individual requirements for an effective participation in the criminal justice sector may vary greatly depending on a person’s age and gender. However, it must also be understood that there are some common challenges that affect persons with disabilities in Kenya in so far as their right to access legal aid is concerned.Footnote 95
The interpersonal justice dimension of access to justice in the African Disability Protocol
Interpersonal justice, sometimes also referred to as relational justice, is concerned with power imbalances within justice systems and how criminal justice actors treat accused persons with disabilities.Footnote 96 It acknowledges the extent to which accused persons with disabilities perceive that criminal justice actors treated them empathetically and acknowledged their situation, thereby validating their status as legal actors who deserve and require redress.Footnote 97 Article 7 of the African Disability Protocol invokes the proposition that accused persons with disabilities should never be excluded from participation in legal proceedings on the basis of disability. Accordingly, “denial of legal capacity must not be based on personal traits such as gender, race, or disability, or have the purpose or effect of treating the person differently”.Footnote 98 Moreover, while accused persons with disabilities may have different cognitive capabilities, a person’s lack of mental capacity must never be the basis for a denial of legal capacity.Footnote 99
Article 7(2)(c) of the African Disability Protocol requires that measures supporting legal capacity should be directed towards recognition of the “rights, wills and specific needs” of accused persons with disabilities. It contemplates the introduction of both formal and informal arrangements to monitor relationships between justice actors and accused persons with disabilities.Footnote 100 For example, it speaks to the quality of support in access to justice mechanisms so as to ensure that interactions between advocates and accused persons with disabilities are free “from fear, aggression, threat, deception, or manipulation”.Footnote 101 Overall, article 7 of the African Disability Protocol is one of the important provisions that should guide the courts as they issue decisions about eligibility of accused persons to legal aid as it increases the opportunity for value judgments about who deserves what type of support and who does not.
The informational justice dimension of access to justice in the African Disability Protocol
Criminal justice actors should deliver informational justice in their interactions with accused persons with disabilities.Footnote 102 In the context of legal aid, informational justice means the quality of justice treatment received by accused persons with disabilities in interpersonal communication, including accurate, sufficient and timely expression and interpretation of legal decisions and actions taken by criminal justice actors.Footnote 103 Informational justice, as a specific form of legal exchange, can effectively improve acceptance and tolerance of negative information or decisions by accused persons with disabilities thus increasing their overall trustworthiness of the criminal justice system.Footnote 104
Legal illiteracy is rampant among accused persons with disabilities and it cannot be assumed that they know their rights including the need for legal aid.Footnote 105 The latter will enable accused persons with disabilities to seek remedies for injustices caused to them as they will be aware of their legal rights and how to exercise them under the law. In its Concluding Observations on the Report on Gabon, the Committee on the Rights of Persons with Disabilities (CRPD Committee) was concerned about the limited accessibility by persons with disabilities to the country’s justice system, including legal aid. The CRPD Committee recommended that the state party implement informational and communicational accessibility and ensure the training of court staff, judges, police officers and prison staff so as to uphold the rights of persons with disabilities, including the right to a fair trial.Footnote 106
The African Disability Protocol obligates state parties to ensure that accused persons with disabilities have access to information, including legal aid information.Footnote 107 Regardless of the type of disability, criminal justice actors should first assume that an accused person with disability has the capacity to make decisions, and second, find the best way of providing information and checking understanding. This includes making appropriate provisions related to legal aid and remembering that accused persons with disabilities in low-resource settings have limited access to legal information as opposed to their counterparts in urban areas.Footnote 108
Towards an outcome-based approach to legal aid in Kenya
Legal aid reform is one of the mainstays of access to justice rights for persons with disabilities in Kenya. The principal justification of differential treatment to legal aid is the historical marginalization of persons with disabilities in the Kenyan society. Criminal justice actors should be aware of the importance of legal aid in the country; particularly to accused persons with disabilities. There is a need for the judiciary to treat the issue of legal representation with much weight, otherwise accused persons with disabilities will lose faith in the system. Also needed is a more careful regulatory design and development that takes account of the circumstances of persons with disability. The African Disability Protocol sets out a number of measures that make it possible to achieve these aims.
Inclusion of persons with disabilities in Kenya’s legal aid framework
Applying the LAA’s equally to all approach, without having regard to the peculiar circumstances of accused persons with disabilities, could lead to discriminatory outcomes.Footnote 109 This is because Kenya’s legal aid framework is at its core distributionist. Therefore, one of the ways of truly protecting the fundamental interests of accused persons with disabilities in access to justice is by recognizing their right to legal aid.
However, conservatives across the globe, including in Kenya, have argued for a need to differentiate between “real” human rights from mere interests in welfare. For instance, Wellman has stated:
“The most obvious, and perhaps the most important, lesson to learn is that one should not conceive of our fundamental ethical rights to welfare benefits as human rights. These are not moral rights the individual has simply as a human being, for they cannot be grounded in human nature or the general aspects of human existence per se. Our most fundamental welfare rights are at best civic rights, moral rights of the individual as a citizen holding against his or her state. Only in this way can the problems of scarce resources and pointless duplication be solved in theory and the responsibility for meeting human need fixed in practice.”Footnote 110
It means that legal aid rights are not human rights but welfare benefits that accused persons with disabilities have acquired by virtue of being citizens in Kenya.Footnote 111 As a result, they cannot be classified as “real” human rights.
In Africa, legal representation for accused persons with disabilities at trial is guaranteed by the African Disability Protocol.Footnote 112 This means that the right to legal aid for persons with disabilities in access to justice is a fundamental right and should not be considered a mere misnomer for a welfare scheme of government-funded representation.Footnote 113 No doubt, demands on the public purse have limited the availability of funds for legal aid rights in Kenya. According to Wellman:
“The problem of scarce resources arises if one insists that the individual’s right to have his or her life sustained is a universal human right. This virtually guarantees that the many demands imposed upon each agent will exceed the available resources or those that can be morally demanded of that party. Such excessive demands cannot be admitted as genuine ethical claims holding against that second party.”Footnote 114
To this end, those who oppose legal aid rights argue that countries should meet these obligations to the extent that they can. More than that, they are not obliged to do so.Footnote 115 In Kenya, accused persons with disabilities still hold little legal sway in the country’s legal aid framework as this right has not been equally distributed. Although they are poorer than other groups, they have received only minimal attention under the LAA.
Besides, there is no certainty that the NLAS will always, if ever, have sufficient funds with which to provide legal aid in criminal cases, even where an applicant with disability satisfies the requirements. To resolve this, the authors suggest that in cases involving serious criminal charges, for example where there is a risk of imprisonment, a judge or magistrate should grant a request for an adjournment or stay proceedings when, through no fault of her or his own, the accused person with disability is unable to obtain legal representation.
That was the holding in the case of Dietrich v The Queen (Dietrich)Footnote 116 where Mason CJ and McHugh J stated:
“In our opinion, and in the opinion of the majority of this Court, the common law of Australia does not recognize the right of an accused to be provided with counsel at public expense. However, the courts possess undoubted power to stay criminal proceedings which will result in an unfair trial, the right to a fair trial being a central pillar of our criminal justice system. The power to grant a stay necessarily extends to a case in which representation of the accused by counsel is essential to a fair trial, as it is in most cases in which an accused is charged with a serious offence.”Footnote 117
The purpose of this recommendation is to put pressure on the NLAS to make funding available for legal representation of accused persons with disabilities who have been charged with serious criminal offences. However, it is important to note that when the process of securing legal representation results in unnecessary delays, the right to a trial within a reasonable time may be violated.
Providing for legal aid as a form of reasonable accommodation
The LAA is a piece of general legislation that applies to everyone in Kenya. As a result, the LAA is not specific enough to provide the needed guidance in situations involving persons with disabilities. For instance, it makes no provision for a general duty on the part of the state to provide for legal aid as a form of reasonable accommodation to accused persons with disabilities. From the foregoing discussion, it is clear that there is need for a mandatory legislative framework that regulates the duty to reasonable accommodation in form of legal aid. In the context of article 13 of the African Disability Protocol, free legal assistance is an appropriate accommodation necessary to ensure effective access on an equal basis with others.
Article 13 of the African Disability Protocol mandates the state to enact a range of procedural and substantive accommodations that are necessary to remove financial barriers to the participation of accused persons with disabilities in access to justice. According to the African Disability Protocol, legal aid legislation should explicitly require the government to provide legal aid services up to the point at which the costs became disproportionate to the benefit obtained in ensuring the right to access justice for persons with disabilities.Footnote 118 For example, it has been argued that restrictions to an accused person with disabilities’ rights to legal aid is permitted where there are compelling reasons that relate to the circumstances of the individual case and the restriction do not unduly prejudice their rights.Footnote 119 In Director of Public Prosecutions (Ireland) v Gormley Footnote 120 the Irish Supreme Court suggested that the need to protect other major constitutional rights such as the right to life may be considered an exceptional circumstance that may warrant the limit of the right to legal aid. The cases may be viewed as examples of what is referred to as an “outcome based” approach to legal aid, which is in the best interests of substantive justice.Footnote 121
Legal capacity
The issue of legal capacity has remained a challenge in Kenya’s legal aid framework, particularly to accused persons with intellectual and psychosocial disabilities. The law allows for the full deprivation, or partial restriction, of an accused person’s right to legal capacity, based on their disability. For example, section 41 of the LAA provides the criteria for eligibility of legal aid. Specifically, it provides that applications for legal aid may be made on behalf of persons with “mental incapacity”. In short, decisions are made on their behalf without their participation. Article 7(2)(c) of the African Disability Protocol stipulates that accused persons with disabilities should be provided with effective legal protection and support they may require in enjoying their legal capacity consistent with their rights, will and specific needs. This wording is reiterated in article 12(3) of the Convention on the Rights of Persons with Disabilities (CRPD).Footnote 122 Therefore, Kenya’s legal aid framework needs to move beyond substituted to supported decision making.
To date, Kenyan practitioners have been reluctant to raise legal capacity arguments under the CRPD and African Disability Protocol to challenge the LAA’s limitations. Having an advocate in some cases has robbed accused persons with disability of their personal agency. According to Muringa’s research, some courts in Kenya deny accused persons with disabilities audience if there is an advocate on record.Footnote 123 This amounts to a violation of the right to legal capacity. To guard against this, the Committee on the Rights of the Child has emphasized that the right to representation should not take away the right of accused persons, including those with disabilities to participate in person.Footnote 124
Another challenge relates to the “distinct under-utilisation of the courts in the courts” through judicial avoidance strategies that have been identified as some of the reasons for the minimization of the participation of persons with disabilities in access to justice.Footnote 125 The authors contend that judicial officers should apply provisions of the CRPD and the African Disability Protocol on supported decision making in order to challenge the domestic limitations on legal capacity. In addition, judicial decision-makers should be upraised on the use of international human rights jurisprudence to inform fundamental domestic due processes, such as legal aid.
Resource allocation
As discussed earlier, inadequate funding for legal representation to accused persons with disabilities has resulted in disproportionality between the competing interests of the law expert prosecutor and the law ignorant accused person with disability. Ensuring the provision of adequate legal aid funding for accused persons with disabilities would adhere to the spirit of an outcome-focused access to justice.Footnote 126 In order to develop a comprehensive legal aid system, the national government needs to budget for the NLAS the same way it does for the Office of the Director of Public Prosecution.
However, a model which relies entirely on state funding for the NLAS may not be feasible in the circumstances of Kenya. Thus, partnership with non-state actors supporting or providing legal aid services for persons with disabilities is strategic.Footnote 127 The NLAS should endeavour to establish and co-ordinate networks with disability rights movements in Kenya that offer legal aid services to accused persons with disabilities as envisaged by the LAA.Footnote 128 The system should be rationalized in such a way that it takes into consideration the remuneration of legal aid advocates, considering issues like their experience and complexity of each case. This will bring in skilled advocates, thus enhancing the quality representation of accused persons with disabilities in Kenya. Ultimately, this distribution of funds and skills will ensure equality of outcomes for accused persons with disabilities as regards representation and level of resources.
Training
Generally, limited knowledge reflects the distance between criminal justice actors and accused persons with disabilities.Footnote 129 The disability arena is an area in which law reform authorities may themselves have limited expertise and understanding. To this end, there is a need for significant development activity, both through research of the relevant literature and, potentially, through working cooperatively with criminal justice authorities in the development and implementation of the African Disability Protocol’s outcomes model of access to justice.
Article 13 of the African Disability Protocol imposes a duty on the state to offer training to all law enforcement and personnel working in the field of administration of justice in order to ensure the realization of the right to legal aid. Staff training and reflective practices should be informed by a comprehensive outcomes approach to legal aid. Legal aid providers should also be trained on how to work with accused persons with disabilities. Such awareness on the needs of accused persons with disabilities will greatly influence the successful handling of their cases in Kenya’s criminal justice system.Footnote 130 The net effect will be reduction in cost to accused persons with disabilities and increase in the number of those getting legal aid services.Footnote 131
Conclusion
Kenya is under constitutional and international obligations to ensure that the right to legal aid is realized in theory as well as in practice. Article 26 of the African Charter on Human and Peoples’ Rights instructs states to improve appropriate institutions responsible for dispensing human rights, including in legal aid. In Kenya, the duty to provide legal aid for persons with disabilities is set out in the LAA. However, there is still a need for legal reforms that guarantee both the appearance and reality of the right to legal aid in the country. Whether these reforms are initiated by Parliament, professional associations such as the Law Society of Kenya, or by the judiciary is not significant. What matters is that procedures be developed so that legal aid laws fulfil their goal of promoting equality of outcomes in access to justice in criminal courts. Particularly, there is need for the exploration of alternatives so as to ensure effective implementation of the right to legal aid for accused persons with disabilities.
The African Disability Protocol provides for an integrative outcomes approach that considers legal aid both as a general issue of entitlement and as a reasonable accommodation measure. According to the African Disability Protocol, persons with disabilities have a right to participate in the governance of legal aid programmes that affect them. The African Disability Protocol’s outcomes approach goes beyond the needs or objectives of Kenya’s criminal institutions to reflect the wishes of accused persons with disabilities. Legal aid regulation in Kenya should amount to a fairly uncritical endorsement of the adoption of the African Disability Protocol. The latter should inform individual criminal justice agencies to re-evaluate their practices and processes on legal aid.
Competing interests
None
Open access
