Lack of legal representation poses a challenge to poor litigants

At the Homa Bay Magistrate Court, Adonijah Ochieng, a suspected cow thief laboriously attempts piecing up his defense before a judge. Not once has he been arraigned in court, but the ominous task of poking holes in the prosecution’s evidence solely lies with him.

In the dock, he cuts a frail figure – loosely dressed in a faded orange t-shirt coincidentally emblazoned ‘Orange County Jail’, ill-fitting pair of trouser; bathroom slippers on his feet. From his dressing, it is clear decent clothing isn’t his top priorities. So are legal fees that would guarantee him a solid defense.

He commences his defense in Dholuo, the language he is most at ease with. A court clerk doubles as a translator making the process even more laborious. From the outset, it is plain Ochieng isn’t highly educated- neither is he conversant with court procedure let alone conjuring a solid defense. The burden of defending himself is a big task. Yet, for some strange reason he doesn’t have a lawyer letting the onus on him to prove his innocence before court.

Ochieng does not walk alone in this path of involuntarily unrepresented defendants. Mary Aoko, a mother of four, was similarly arraigned in court without a defense counsel. In fact, all but one case heard on this day involved unrepresented suspects. Aoko was accused of failing to present her daughter (a court witness) for a court hearing. She explained she lacked bus fare to travel from her home in Migori to the Homa Bay court.

“Did you inform the court?” the judge queries. “No”, Aoko hesitantly replies.

As it were, the judge fined her Kshs. 500 or a 5 day stay at Homa Bay GK prison. She couldn’t afford the fine.

Subsequently, by evening Aoko boarded a prison van heading to Homa Bay GK prison to serve her sentence leaving no one to care for her children.

Another suspect out rightly pleaded guilty at the outset of his hearing because he didn’t quite understand court procedures. He later on rescinded his plea after the judge explained the weight of his decision to plead guilty. Another hadn’t requested to be supplied with statements by the time he was arraigned to take plea in court.

Dozens of cases are daily dispensed at Homa Bay Magistrate courts. Majority of these cases involve first time offenders without legal representation. Most of the offenders are poor and illiterate- a situation limiting their understanding of the judicial process. Cases of suspects, arraigned in court without defense counsels pervade the Kenyan criminal justice system.

“Ideally, the Kenyan Constitution requires that suspects have an advocate assigned to them by the state and at state expense,” says Jason Owino, a human rights activist.

He points out that it is a constitutional right that an accused person be accorded adequate time and facilities to prepare a defense. “For illiterate suspects the need for a lawyer in preparing a defense cannot be understated,” he says.

“Most of the cases we handle on a daily basis involve unrepresented offenders. But at the same time, this doesn’t necessarily translate to unfair trials: the court is a neutral arbiter and we do our best to prevent miscarriage of justice”, says a Homa Bay Court official who requested anonymity.

He believes a combination of factors, including lack of knowledge, shortage of lawyers and poverty were the major obstacles that prevent offenders from obtaining legal representation.

“For a long time ordinary Kenyans have casually regarded the courts. This attitude has in effect hindered interest in the judicial process. On the other hand, lack of free flow of information regarding basic procedures such as what happens from the moment one is arrested to when they are presented in court and even sentenced isn’t freely available to the public”, he noted adding that myriad judicial transformations are in progress and soon participation of the public in the judicial process will be enriched.

In addition, the court official stresses that due process requires unrepresented defendants be taken through a brief of court procedure, consequences of plea and options available to them based on the nature of the offence.

However, Japhet Omino, an advocate, says that court instructions to defendants cannot substitute legal advice.

“Simply instructing a suspect on court procedure does not level the playing field when an illiterate offender is put on trial against evidence provided by professional prosecutors and investigating officers”, he says

The pervasive lack of access to legal advice for poor offenders in Homa Bay County and indeed Kenya as a whole is a major but not the sole contributor of people landing in jail unfairly.

International Commission of Jurists (ICJ) has cited gaps in understanding of the judicial processes as a key contributor to unfair incarceration. In a published article, the commission noted that some offenders were being convicted for failing to take advantage of available options to bring forth a solid defense in their cases.

But all is not lost. ICJ is undertaking a program to train inmates and prison officers as paralegals: to pass on information to those still undergoing trials. Through this initiative, the commission hopes the trained paralegals will help accused persons with advice throughout their cases.

“Besides equipping suspects with information on their rights and court procedures, the courts also benefit in that dispensation of justice will also be swift and faster”, observes Omino.

The state is similarly a live to this gap hence proposing to establish a legal an Act to promote access to justice by providing affordable, accessible and credible legal aid services to poor Kenyans through parliament.

The Legal Aid Bill proposes a legal aid fund that will be used to fund legal Aid services to poor Kenyans.

By Davis Langat

Source: Kenya News Agency