Access to justice in Kenya

Abstract

The purpose of this study was to analyze the contextual factors limiting marginalized persons to access justice in Kenya, with a view to recommend policy strategies which can be used to improve the implementation of the Bill of Rights, particularly the right to administrative action. The following questions are answered in this study: 1) What is the socio-cultural, economic, and political context of implementation? 2) How was the implementation process conducted? 3) What are the contextual factors limiting marginalized persons to access justice? 4) What policy strategies can better improve the implementation of the Bill of rights?

This was a qualitative study. Documentary research, Key Informant Interviews and observation methods of data collection were used. Participants in the study were individuals with firsthand experience of the implementation process. Their lived experiences while participating in the process of seeking justice served as the lens through which the reforms to provide access to justice were examined.

sults of the study show that implementation success was realized in the following areas: 1) Taking the courts closer to the people; 2) Realizing equality in justice delivery; 3) Creating a quicker way to solve disputes; and 4) Making it easy to file a case in court. However, implementation failed in other areas which exposed factors hindering indigenous women to access justice for instance: inadequate staff; delay in legislative process; inadequate resources; lack of information and knowledge of rights; lack of judicial support mechanisms; difficulties in accessing the courts; unresolved entrenched inequalities; discrimination; prejudice; conflicting cultures in implementation process; inability to enforce court rulings; lack of legal aid; impunity;

and failure to provide basic amenities suggests that access to justice is still a goal too far to reach.

Based on this study, I recommend the following: 1) Gains that have been made so far as a result of implementing the constitutional reforms should be maintained to avoid fall back for instance, protecting the doctrine of separation of powers in principle and practice, the financial and administrative autonomy of the Judiciary, transitioning from a centralized government to a devolved government system, and strengthening the county governments and the senate. 2) Government should continue to devolve police services and the services of the office of the Director of Public Prosecution to marginalized areas to strengthen the justice system 3) Both national and county governments should invest more in physical infrastructure that is necessary to make services of the justice system easier to run and access. 4) The Judiciary should expand its programs for instance free legal aid programs; education and awareness programs; judiciary public engagement programs; and the devolution of justice services to more effective local tribunals.

Furthermore, the following need based policy recommendations can help address the problem: 1) The judiciary should work with communities to create a more inclusive community oriented paralegal programs that can help provide support services to the justice system. 2) The Judiciary and non-governmental organization should invest more in educating Kenyans so that they can adopt rights based civic culture 3) More resources should be invested in de-ethnicizing nationhood so that externalities created because of ethnic politics and ethnic based exclusion in public police and public service can be minimized. 4) Creation of alternative to mainstream justice systems to supplement the mainstream justice system. 5) Political reforms aimed at value change and building nationhood. 6) Creation of collaborative framework that will enable government agencies, civil society and international actors to work together on reforms especially in areas that are often left behind for instance gender and justice, minority issues and ethnic politics. 7) Civil society groups should work with donors to analyze, propose and support reforms in the justice system especially areas where marginalized groups are unable to access justice.