By Allan Ong’ato, Esq<\/p>\n\n\n\n
The lawyer is standing at the gate to Heaven and St. Peter is listening to his sins . . . the list goes on for quite a while. The lawyer objects and begins to argue his case. He admits all these things, but argues, “Wait, I’ve done some charity in my life also.” St. Peter looks in his book and says, “Yes, I see. Once you gave a dime to a panhandler and once you gave an extra nickel to the shoeshine boy, correct?” The lawyer gets a smug look on his face and replies, “Yes.” St. Peter turns to the angel next to him and says, “Give this guy 15 cents and tell him to go to hell.” LARRY WILDE, THE ULTIMATE LAWYER’S JOKE BOOK 10(1987).<\/p>\n\n\n\n
Probono publico<\/em> is latin for \u2018for the public good.\u2019 The concept of pro bono legal services emanated out of the need to serve those who are described as poor, low-income, modest income or indigent persons<\/p>\n\n\n\n An Indigent person is defined in the Legal Aid Act, 2016 as a person who cannot afford to pay for legal services. Indigent persons are persons who are economically deprived or unequal members of society, typically children and vulnerable people in society.<\/p>\n\n\n\n Ethical Justifications for Probono obligations<\/p>\n\n\n\n A central feature of legal professionalism is the ideal of public service, according to which a lawyer must not only represent client interests but also advance the broader public good. However, this recognition has been far stronger in theory than in practice.<\/p>\n\n\n\n The Law Society of Kenya, through its code of ethics, only encourages pro bono lawyering in cases of indigent clients but does not give guidance on the number of hours lawyers should ideally offer as part of their professional responsibility. This means that lawyers have discretion to decide whether to take up probono obligations and how much time to dedicate to it.<\/p>\n\n\n\n In other jurisdictions, for example the US, the American Bar Association\u2019s ethical rules recommend that lawyers contribute at least 50 hours of pro bono legal work every year. In yet others, pro bono legal work is mandatory. For example, in South Korea, lawyers are required to provide at least 30 hours of pro bono legal services. Those who are unable to fulfil this condition for good reason must pay a certain amount per hour in lieu of providing the service.<\/p>\n\n\n\n Pursuant to the Cab rank rule, lawyers are required to take briefs as they come without any bias. The cab rank<\/strong> rule originates from the British taxis\/cabs in London which would have their lights on to indicate that they were available for work or off to indicate unavailability. The client who comes first is served by the first Cab. On the other hand, the taxi driver does not get to choose the client. This applied in the same manner as in the legal profession.<\/p>\n\n\n\n Incorporating free legal aid services in lawyer\u2019s daily work is a salient responsibility of the profession. The need for pro bono lawyering is to address the issue of unequal access to legal help and promote access to justice. Law is considered a higher calling, and should therefore be undertaken not only for self-interest but also in the service of others for equal justice under the law.[1]<\/a><\/p>\n\n\n\n Pro-bono work reminds Lawyers of why they went to law school, and is the one they will always remember.<\/p>\n\n\n\n In the US, Law firm leaders have also offered pro bono as a way of counteracting lawyer dissatisfaction by providing meaningful work experiences in an environment otherwise bereft of opportunities for personal fulfillment. Pro bono can ameliorate the psychological wellbeing of lawyers that enhance job satisfaction and diminishes lawyer turnover. Pro bono thus makes lawyers feel good about themselves and the firm, providing an antidote to the disillusionment experienced by associates caught in the rut of routine billable work. These social trends potentially influence investment in pro bono programs by law firms.<\/p>\n\n\n\n Indeed, one attorney characterizes pro bono work as the vaccine which renders him immune to lawyer jokes and claims it provides an opportunity for the profession to counteract the negative, distorted image thrust upon it.’ Mark E. Allen, Pro Bono Attorneys Do It For Free, WASH. ST. B. NEWS, Nov. 1991, at 21, 21<\/p>\n\n\n\n Ethics behind free legal aid clinics<\/p>\n\n\n\n Free legal aid clinics is one of the ways in which legal aid providers reach out to the socially and economically disadvantaged persons in the society to enable them understand and protect their rights. This is because the justice and legal system in Kenya is not equally accessible to everybody. The financially disadvantaged people, the persons living with disabilities and minority groups often experience particular difficulty in accessing justice.<\/p>\n\n\n\n The definition of legal aid as provided in the Legal Aid Act encompass legal advice, legal representation, assistance in resolving dispute through alternative dispute resolution mechanisms, drafting of relevant incidental to any legal proceedings, legal awareness creation and advocacy work on behalf of the community. Legal aid services are provided for people from certain socio-demographic groups, such as children, women, ethnic minorities, prisoners, etc.<\/p>\n\n\n\n Majority of free legal aid clinics are organized and\/or sponsored by Non Governmental Organizations with the assistance of their sponsors and\/or partners. NGO\u2019s involved in this type of work include Federation of Women Lawyers, the Cradle, the International Commission of Jurists in Kenya, Kituo Cha Sheria, the Public Law Institute and Kelin Kenya (Latham & Watkins, 2016).<\/p>\n\n\n\n Many times these organizations work with law students who provide indirect legal aid services by acting as facilitators between persons in custody, prisons and legal services institutions. In Canada, these types of programmes serve as a training ground for future legal aid lawyers.[2]<\/a><\/p>\n\n\n\n The Law Society of Kenya also organizes an annual legal awareness week whose objective is to advance legal literacy among the general public. During this time, law firms and legal service organizations provide free legal aid to members of the public throughout the country\u2019s high courts.<\/p>\n\n\n\n Free legal aid clinics involves opportunities to find meaningfulness through work because it allows individuals to engage in work behaviors that matter, are significant for others inside and outside of the organization, and can also serve the greater good.<\/p>\n\n\n\n How advocates that use free legal aid trusts and foundations to self-enrich should be punished<\/p>\n\n\n\n It can\u2019t be denied that there are rogue advocates who use funding for probono services to self enrich e.g by diverting funds meant for probono services especially in the context of NGOs. Bar associationsare organizations of lawyers responsible for the regulation of the legal profession in their jurisdiction (by enforcing standards of ethical conduct). In the Kenyan context, the Law Society of Kenya must discipline errant members who embezzle funds through measures as severe as disbarment.<\/p>\n\n\n\n The Legal Aid Act, 2016 should also be amended and specific offences relating to embezzlement of legal aid funds together with severe criminal sanctions introduced for legal aid providers who embezzle funds meant for legal aid services. This way, errant Advocates who use funds meant for legal aid to self enrich will additionally face criminal sanctions. <\/p>\n\n\n\n Francis Mugo & 22 others -vs- James Bress Muthee & 3 others, Civil suit No. 122 of 2005 [2005] eKLR <\/p>\n\n\n\n The Defendants made an application before Court seeking that Andrew Mukite Musangi, Advocate, be barred or disqualified from representing the Plaintiffs in the case on the ground that the Defendants had intentions of calling him as their witness.<\/p>\n\n\n\n Mr Musangi had drawn and witnessed a certain lease agreement between one of his clients and other parties, which were the basis of the suit. The lease was alleged to have been drawn in bad faith in perpetration of an illegality.<\/p>\n\n\n\n Mr. Musangi had also acted for the Defendants\u2019 landlord in a separate suit which was still pending before Court hence there was a real possibility for conflict of interest.<\/p>\n\n\n\n The Court allowed the application.<\/p>\n\n\n\n Defence in capital offences<\/p>\n\n\n\n A lack of funds for legal fees is recognized as one of the main barriers to access to justice, especially since the layman is not as qualified as a lawyer to navigate the intricacies of the justice system alone.[3]<\/a><\/p>\n\n\n\n Kenya\u2019s current constitution provides that it is the state\u2019s responsibility to ensure access to justice for all persons,[4]<\/a> and that every person has the right to a fair trial, including adequate time and facilities to prepare a defence.[5]<\/a> It specifically provides for the responsibility of the state. Article 48 states that \u201cThe State shallensure access to justice for all persons\u2026.\u201d Article 50 on the other hand, additionally provides that an accused person has the right to a fair trial which includes having an advocate assigned to them by the state at its own expense if substantial injustice would occur otherwise. Article 25 further provides that the rights that cannot be limited include the right to a fair trial. Article 27 provides for equality amongst all persons before the law, including full and equal enjoyment of all rights and fundamental freedoms.<\/p>\n\n\n\n In many jurisdictions in Africa, focus of pro bono beyond vulnerable people has been centered on persons facing criminal charges and their access to free legal representation sometimes can be directed by a court order. Similar observations have been made in a number of jurisdictions in the Middle East including Lebanon, Jordan and Yemen where pro bono services are very scarce with the exception of criminal cases where free legal representation is guaranteed by law.[6]<\/a><\/p>\n\n\n\n The pauper brief scheme is a scheme that was operated by the Judiciary over the years that was aimed at providing indigent persons accused of murder with free legal representation. It is similar to that of legal aid.[7]<\/a><\/p>\n\n\n\n The scheme allows the court to pass briefs to Advocates to appear for such accused person for a minimal fee without seeking payment from the accused person. Normally only junior Advocates take up pauper briefs since the seniors do not have much time to spend on such briefs.<\/p>\n\n\n\n In 2016 however, the Chief Justice gave practice directions on probono services and pauper briefs.[8]<\/a> The practice directions mandate Probono Committees in court stations to allocate matters involving inter alia capital offences to qualified counsel for a fee of Kshs. 30,000\/=<\/p>\n\n\n\n Can holding defence briefs in capital offences be justified given that most firms\/advocates do it out of tradition rather than in pursuit of justice for the inmates?<\/p>\n\n\n\n The ratio of lawyers to the general population has been estimated at 1 to 5500 people. Few legal aid service organizations exist in Kenya. The LSK has put together a code of conduct and ethics which governs the practice of legal services in Kenya. Despite the general consensus about the need to include pro bono in the access to civil justice solution, from the perspective of law firms, the management of pro bono can feel like more of a burden than a benefit.[9]<\/a><\/p>\n\n\n\n Pro bono attorneys always see the provision of legal services at below market rates as an opportunity to obtain more experience and develop a client base that will yield clients that can pay higher fees in the future..<\/p>\n\n\n\n In places like the US, pro-bono work expanded due to the avenues it provided new recruits for on-the-job training. Three things about pro bono work that stand out: it provides early opportunities for substantial and meaningful direct interaction with clients, it offers young litigators the opportunity to develop skills through experiences that would not be available for them from paying work, and it provides experience in a far wider range of subject matters than the standard commercial litigation space.<\/p>\n\n\n\n Efficacy of public defence briefs in capital trials<\/p>\n\n\n\n Legal representation of indigent persons charged with capital offences is necessary so as to avert substantial injustice that may result. The Courts have stated that what constitutes \u201csubstantial injustice\u201d results when a person charged with a capital offence can\u2019t represent themselves.[10]<\/a> The Court went ahead to find that failure to provide legal representation to an accused person is detrimental to access to justice. The court noted that in so far as legal representation is concerned, substantial injustice would result \u201cwhere a person is charged with an offence punishable by death.\u201d<\/p>\n\n\n\n Statistics have shown that a majority of capital offences that are assigned to probono lawyers result in convictions. According to KNCHR, over 85% of capital offences assigned to probono lawyers by court result in convictions. The reverse is true where accused persons engage lawyers privately.[11]<\/a> This demonstrates that free legal representation doesn\u2019t in and of itself guarantee access to justice.<\/p>\n\n\n\n In his analyses on access to justice and legal aid, Marcos[12]<\/a> notes that cases assigned to probono lawyers in Kenya sometimes result in poor quality legal services because the assigned lawyer may not be an expert in the case. He also notes that factors such as lack of accountability and corruption pose a threat to free legal representation in Kenya. Also, probono lawyers may not be as committed to the case as a result of the meager payment they receive from the state.[13]<\/a><\/p>\n\n\n\n Representation under the Victim Protection Act<\/p>\n\n\n\n The case of Joseph Lendrix Waswa vs the Republic[14]<\/a> which was litigated all the way to the Supreme Court will be used to illustrate the applicability of provisions of the Victim Protection Act No. 17 of 2014 to the criminal justice process.<\/p>\n\n\n\n The accused person had been charged with the murder of a student aged 22 years. After 9 prosecution witnesses had testified, Counsel watching brief for the family of the deceased made an oral application for leave to actively participate in the proceedings and premised his application inter alia on provisions of the Victim Protection Act, which he argued had been enacted to give effect to Article 50 (9) of the Constitution of Kenya, 2010, which provides as follows \u2013<\/p>\n\n\n\n \u201cParliament shall enact legislation providing for the protection, rights and welfare of victims of offences.\u201d<\/strong><\/p>\n\n\n\n The High Court allowed Counsel for the Victims\u2019 participation to the following extent \u2013<\/p>\n\n\n\n \u201c31 i on submission at the close of the prosecution case whether there is a case to answer.<\/strong><\/p>\n\n\n\n ii Final submission should the accused be put on his defence.<\/strong><\/p>\n\n\n\n iii On points of law should such arise in the course of trial.<\/strong><\/p>\n\n\n\n iv Upon application at any stage of the trial for the consideration<\/strong><\/p>\n\n\n\n by the court.\u201d<\/strong><\/p>\n\n\n\n Both the Court of Appeal and the Supreme Court upheld the High Court decision.<\/strong><\/p>\n\n\n\n The VPA defines a Victim as any natural person who suffers injury, loss or damage as a consequence of an offence.<\/p>\n\n\n\n Section 2(b) of the VPA on General Principles provides amongst others that every victim must as far as possible be given an opportunity to be heard and to respond before any decision affecting him or her is taken.<\/p>\n\n\n\n Section 9 on the right of a victim during the trial process states that \u2013<\/p>\n\n\n\n A victim has a right to \u2014<\/p>\n\n\n\n