In the realm of criminal justice, legal assistance is a fundamental right that ensures the accused receive a fair and just trial. The Constitution of Kenya and various legal provisions establish the framework for securing legal representation when an accused person is unable to afford it.
This article explores the key aspects of legal assistance in criminal proceedings, emphasizing the importance of safeguarding the rights of the accused and addressing the factors that determine whether substantial injustice may occur.
- Right to Legal Assistance
From the very outset of criminal proceedings, the court has a crucial role in safeguarding the rights of the accused. Article 50(2)(g) of the Constitution of Kenya (CoK) mandates the court to inform the accused of their right to employ legal assistance. This obligation is further supported by Art. 50(2)(g), CoK; s. 43(1)(a), Legal Aid Act (LAA); Felix Mwova Vaasya v R Misc Crim Application No. 48of 2016). underscores the importance of promptly informing the accused of their right to legal representation.
The court should record whether the accused will be represented by a lawyer or if they will be unrepresented.
- Assignment of Legal Aid
In situations where the accused is unable to secure legal representation, and substantial injustice would result if the accused remains unrepresented, the Constitution guarantees the right to have an advocate assigned by the state at state expense, as per (art. 50(2)(h), CoK). Section 43(1)(b) and (c) of the LAA. The LAA, under Sections 43(1)(b) and (c), establishes the court’s duty to inform the accused of the right to legal aid and instruct the National Legal Aid Service to provide legal aid when substantial injustice is likely to occur. The Act’s language, “likely to occur,” reflects a realistic and generous approach to assisting accused persons.
- Factors Determining Substantial Injustice
When evaluating whether substantial injustice would result from lack of legal representation, the court considers several factors:
i) The severity of the charge and potential sentence. ii) The complexity of the case. iii) The capacity of the accused to defend themselves(s. 43(1A), LAA).
Additionally, the Supreme Court has emphasized the importance of considering the literacy of the accused and whether the accused is a minor, as seen in the case of (R v Karisa Chengo & 2 Others Supreme Court Petition No. 5 of2015).
- Legal Aid for Capital Offenses
Both the Constitution and the law dictate that individuals charged with capital offenses must be provided with an advocate at state expense. The Court of Appeal’s decision in David Njoroge Macharia v R (CourtofAppealatNairobiCriminalAppealNo.497 of 2007) confirmed that substantial injustice could result if an individual charged with a capital offense cannot afford legal representation. section 43(4)of the LAA goes a step further by mandating the court to order the National Legal Aid Service to provide legal aid to unrepresented persons charged with capital offenses.
- Legal Aid Beyond Capital Offenses
Importantly, the likelihood of suffering substantial injustice is not limited to capital offenses, as affirmed by the Supreme Court in R v Karisa Chengo & 2 Others Supreme Court Petition No. 5 of 2015). In the case of Thomas Alugha Ndegwa v R (Court of Appeal at Nairobi Criminal Appeal (Application) No. 2 of 2014), the Court of Appeal allowed an application for legal aid from an appellant who had not been represented in proceedings before two lower courts. The Court of Appeal ruled that substantial injustice might occur if the appellant was not represented during the appeal proceedings.
- Legal Aid for Children
s. 186(b), Children Act mandates the assignment of an advocate at state expense for children charged with offenses if they are unable to hire one. Additionally, if a child is unrepresented, the court can order the National Legal Aid Service to provide legal aid to the child s. 43(1), LAA. The case of Terry Goreti Wasike & Another v R (High Court at Bungoma Criminal Appeal No. 86 and 87 of 2009), emphasizes the importance of promptly informing a child of the right to legal assistance and ascertaining whether the child can obtain legal representation.
- Eligibility for Legal Aid
To be eligible for legal aid, an applicant must meet specific criteria, as outlined in Section 36(1) of the LAA. An applicant must be an indigent resident of Kenya and either a Kenyan citizen, a child, a refugee under the Refugees Act, a victim of human trafficking, an internally displaced person, or a stateless person.
- Continuation of Proceedings
Lack of legal aid should not be a bar to the continuation of court proceedings, as provided by Section 43(6) of the LAA. The court exercises discretion in determining whether substantial injustice would result if legal aid is not provided, and there will be instances where the substantial injustice test is not met, and legal aid is not provided.
- Providing Guidance to Unrepresented Accused
When an accused is unrepresented, the court is expected to offer some guidance on the court process. In Simon Githaka Malombe v R (Court of Appeal at Nyeri Criminal Appeal No. 314 of 2010), the Court of Appeal emphasized that the failure to invite an unrepresented person to cross-examine a witness, as set out in Section 208(3) of the CPC, is inconsistent with the court’s role as an ‘educator of process.’
Conclusion
Legal assistance in criminal proceedings is an essential component of ensuring a fair and just trial for all accused persons, regardless of their financial means. The Constitution and the Legal Aid Act establish a robust framework that safeguards the right to legal representation.
The court plays a pivotal role in promptly informing the accused of their rights and assessing whether substantial injustice might occur without legal aid. By adhering to these principles, the legal system can uphold the rights and interests of the accused while maintaining the integrity of the criminal justice process.
