Democracies This adherence to the rule of law

Democracies with a deep
respect for the realization and enforcement of basic human rights acknowledge
that constitutionalism and the rule of law are key tenents in preserving an
orderly and harmonious political, social and economic environment. In such democracies,
the constitution is held to be the supreme law directing, defining and
permitting all actions of the state. This adherence to the rule of law and
constitutional supremacy provides a firm guarantee that powers and liberties
provided to authorities under the law shall not be put into whimsical use,
betraying the freedoms and human rights guaranteed to the people. As a result,
every person is guaranteed equal treatment before the law; legal institutions
such as the judiciary become accessible to all, despite their social or
economic status.

 Nevertheless, this is a utopia for most people
in Kenya who live under 1.25 dollars a day. Laws created to protect the poor
from exploitation and abuse are flaunted regularly without penance and
institutions meant to uphold such laws have abandoned their duty. Resultantly, access
to justice in these situations is hindered, leaving those without any economic
or social muscle to circumvent the flawed system vulnerable to further
exploitation and abuse.

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1.1.Poverty
and Access to Justice

Access
to justice is a crucial component within any Bill of Rights. It not only enables
people to enforce their rights and freedoms, it also allows citizens to hold
leaders accountable for their actions. More so, access to justice is a tool for
development and economic progress, enabling the poor to use the law, legal
systems and legal services to protect their rights and advance their interests
as economic actors.1

Since she gained
independence, preceded and influenced by a tyrannical colonial legal
dispensation,   Kenya has suffered its
fair share of human rights abuses and violations. The rule of law and constitutionalism
and consequently, access to justice, has constantly been disregarded in favor
of an autocratic regime serving the interests of a few. Institutions, meant to
be custodians of the rule of law, have been forced to operate under the bulbous
thumb of an almighty executive, denying ordinary Kenyans equal protection by
the law. The judiciary has been stripped bare of its sacrosanct independence
through the removal of tenure of judges2 spawning a rather weak and
timid judiciary that operates on the whims of its master. The private bar has
been undermined and silenced through continuous and frivolous arrests of
private attorneys and activists3 who dare, and bravely so, to
contradict the government position.4

These intrusions, by an
all too powerful executive that undermines a judiciary struggling to define
itself, have led to the loss of vison and subsequently the loss of integrity
from judicial officers resulting in an influx of corrupt practices such as
bribery.5 Accordingly, this has led
to the erosion of trust in the judiciary and other legal institutions by the
public.6 More so, these corrupt practices
have not only alienated socially and economically disadvantaged people from
accessing courts and receiving redress for violation of their rights – since
they are incapable of raising the required economic or social capital to
circumvent these limitations – but have also worsened their living condition;
those in dire need of protection from violation and abuse have been cast aside.
Without any other place to turn to for redress, they are left in a de facto
state of lawlessness.7  

Whether
living below or slightly above the poverty line, these men, women, and children
lack the protections and rights afforded by the law. They may be citizens of
the country in which they live, but their resources can neither be effectively
protected nor leveraged. Thus, it is not the absence of assets or lack of work
that holds them back, but the fact that the assets and work are insecure,
unprotected, and far less productive than they might be. Their property rights
and economic rights mean nothing in the face of blatant inequality among
classes. In addition to exclusion based on their poverty, poor women may also be
denied the right to inherit or acquire property. Clearly, vast poverty must be
understood as created by society itself. The laws, institutions, and policies governing
economic, social, and political affairs deny a large part of society the chance
to participate on equal terms. This stunts economic development and can readily
undermine stability and security. The outcomes of governance – that is, the
cumulative effect of policies and institutions on peoples’ lives – will only
change if the processes of governance are fundamentally changed.8

1.2.The Constitution of Kenya, 2010rk1 

Despite this gloomy past, Kenya’s new constitutional dispensation
promulgated in 2010 has sought to restore balance within the three arms of
governments and protect the rights and freedoms of individuals, especially marginalized and vulnerable groups of people, including the poor. It provides that
the State and consequently every state organ has a duty to observe, promote and
respect the rights and fundamental freedoms provided under the Bill of rights.
It further states that all state organs and public officers have a duty to
address the needs of vulnerable groups.9

Article 48 grants that every person has a right to access justice and bestows
the State with the responsibility to ensure it is achieved.10 It also
provides under, the same article, that any fee required to meet this obligation
shall be reasonable and not impede access to justice. This provision is
supported further under Article 22 (3) which states that the Chief Justice
shall make rules11
providing for court proceedings in which the criteria that: formalities
relating to proceedings, including the commencement of proceedings, and in
particular, the court entertaining proceedings on the basis of informal
documentation, when necessary, shall be met. Moreover, the rules shall ensure
that no fee may be charged for commencing such proceedings.

Under the rules, the judiciary’s commitment to enhance access to justice
for all persons is reiterated as the overriding objective of the rules.12 Furthermore,
the rules emphasize that the court shall pursue access to justice for all
persons including the poor, illiterate, uninformed, unrepresented and persons
with disabilities.13 The rules
further guarantee access to justice for all by rescinding as mandatory the
requirement that commencement of proceedings should be done through a formal
application. It states, however, that the court may accept an oral application,
a letter or any other informal documentation which discloses
denial, violation,   infringement or threat to a right or fundamental
freedom.14Clearly, the Constitution intended that court proceedings, especially
those highlighting violation of rights, should not be curtailed. Thus, Article 159
directs the judiciary to be guided by these principles while carrying out its
duties:

i.                   
that justice shall be done to all,
irrespective of status;

ii.                 
that justice shall not be delayed;

iii.               
that justice shall be administered
without undue regard to procedural technicalities;

iv.               
that the purposes and principles of
the Constitution shall br protected and promoted.

These provisions, if implemented religiously, are a foundation upon which
epistolary jurisdiction may be enforced within the judicial process. The
Constitution has strived to ensure that every Kenyan, especially those
vulnerable to abuses have access to courts and are able to receive audience and
redress. However, we are still a long way from achieving this. Case in point, the Civil Procedure Rules of 2010 provide that a pauper may institute
any suit subject to the rules provided therein.15 A pauper is defined as a
person who is not possessed of sufficient means to enable him to pay
for the fee prescribed by law for the institutions of such suit.16 However, such rules, as
appealing as they may seem, are negated by succeeding provisions which provide
for grounds for rejection of an application to sue as a pauper. One of the
grounds for rejection of such applications by the
courts is where pleadings are not framed and presented
in the prescribed manner.17 This provision is
oblivious of the fact that a poor, illiterate, uninformed or an unrepresented person does not know how to draft pleadings in accordance with the required prescriptions under the law. It is,
therefore, unfair to equate the threshold of compliance of such a person to that of an advocate who has specialized
in the law. After all, provisions of Article 159(2) (c) of the Constitution should come into
effect in this case. Moreover, where the application to sue
as a pauper is approved but the suit fails, the rules require the pauper (or
the plaintiff) to cater for the fees as may be directed by the court.18 This brings into question
the entire purpose of the provisions to sue as a pauper if such application
shall only be credible if your suit succeeds. Considering the state of paupers,
many of whom are unrepresented, illiterate and uninformed, these provisions
discourage many of them from instituting proceedings since they may fail- that
is, if they are even aware of the provision itself. The Order continues to
provide that where an application to sue as a pauper fails, the plaintiff (or
the pauper) shall be barred from any subsequent applications of the like nature
as a pauper.19
Advocates are also required pursuant to the Law
Society of Kenya’s (LSK) digest of professional conduct and etiquette to
assist poor persons who are unable to pay an advocate’s fee in the ordinary way, on a pro bono or pro deo20 basis. Whereas the Rule
goes ahead to provide guidelines on the exercise of
such a mandate, such assistance is not mandatory.

It is, therefore, clear that more needs to be done to
enhance access to justice in Kenya. As Albert Einstein stated once, in
matters of truth and justice, there is no difference between large and small
problems, for issues concerning the treatment of people are all the same. Although many strides
have been taken to promote equal access to justice for all, there is still a
lot to be done to guarantee it. Epistolary jurisdiction, as this dissertation
tries to advance, is a credible and efficient way to provide access to justice
for all, regardless of their status. This will not only enhance a culture of
human rights protection and advancement but also provide a basis for economic
progress and poverty alleviation.

1 Making the Law Work For Everyone:
A Report by the Commission on Legal Empowerment of the Poor. Volume 1.

2 Constitution of Kenya Amendment
Act No. 4 (1988).

3 Justice Willy Mutunga (retired), Mr.  John Khaminwa and Mr. Gibson Kamau Kuria were
detained for allegedly teaching ‘subversion’, for defending a political
detainee and, filing a habeus corpus application on behalf of Mirugi Kariuki,
respectively.

4 Drew Days III Et Al., Justice
Enjoined: The State Of The Judiciary In Kenya 4 (1992) Publication Of The
Robert F. Kennedy Memorial Center For Human Rights.

5 Human Rights Watch, World Report
2000: Events Of 1999, 48-50 (2000).

6 Kenya at the Crossroads pg. 10.

7 Making the Law Work For Everyone:
A Report by the Commission on Legal Empowerment of the Poor, Volume 1

8 Making the Law Work For Everyone:
A Report by the Commission on Legal Empowerment of the Poor, Volume 1

9 Article 21, the Constitution of
Kenya, 2010.

10 Article 48, the Constitution of
Kenya, 2010.

11 The
Constitution of Kenya (Protection of Rights and Fundamental Freedoms) Practice
and Procedure Rules, 2013.

12 Rule 3 (1), the Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules, 2013.

13 Rule 3 (7), the Constitution of Kenya (Protection of Rights and Fundamental
Freedoms) Practice and Procedure Rules, 2013.

14 Rule 10 (3), the Constitution of Kenya (Protection of Rights and
Fundamental Freedoms) Practice and Procedure Rules, 2013.

 

15 Order 33 Rule 1-1, Civil Procedure
Rules, 2010.

16 Order 33 Rule 1-2, Civil Procedure
Rules, 2010.

17 Order 33 Rule 5, Civil Procedure
Rules, 2010.

18 Order 33 Rule 11, Civil Procedure
Rules, 2010.

19 Order 33 Rule 14,

20 Where legal costs are paid by the
State at the instruction of the Court.

 rk1Include Art. 22 on Public interest Litigation for reference in
Chapter 3

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