i

EMERGING JURISPRUDENCE ON THE INTEPRETATION OF THE RIGHT TO

LEGAL REPRESENTATION IN KENYA

Cyril Yavatsa Kubai.*

1. INTRODUCTION

One salient feature of the adversarial system of justice is ‘based on the theory that the lawyer

in representing his client should use all the available legal tools to the advantage of his

client.’1 The other party’s lawyer, the theory holds, ‘will also utilise all his legal tools in

favour of that other party, so that in the resulting equilibrium, approximate justice will be

achieved.’2 Where a party is unrepresented in court, the basic principles upon which the

theory is based, are negated. The resultant effect in such a situation is that approximate

injustice is manifested in the place of justice.

Kenya, as in other common law countries, has adopted such a system and ‘depends on trained

professional pleaders.’3 The right to access to a lawyer is an integral part of the system and is

‘buttressed by the common law tradition that a lawyer in never justified to withhold his

services unless ethical grounds so demand.’4 Yet it must not be lost that, the cost of legal

representation is beyond the reach of many. This is because of the high poverty levels in the

country.

In criminal cases, where the state represents the victim,5 the accused person may at times be

unrepresented. The parties, in such a setting are therefore uneven in the face of the legal

system from which it is expected that justice will be achieved.

Given this reality, legal representation at the state’s expense remains one of the most

desirable remedial measures in the criminal justice system. Despite this, past experience in

Kenya reveals little effort on the part of the Government to make this right a reality. The

* Cyril Yavatsa Kubai. LL.B Hons. Moi University. Bar student at the Kenya School of Law. 1 Henry JA Lugulu, ‘The Role of Legal Ethics in Achieving a Just Society,’ in Luis G. Franceschif & Andrew

M. Ritho (eds.) Legal Ethics & Jurisprudence in Nation Building (2005) pp. 55-87:65. 2 Ibid.

3 Winluck Wahiu ‘Independence and Accountability of the Judiciary in Kenya,’ in Frederick W. Jjuuko (ed.)

The Independence of the Judiciary and the Rule of Law (2005) pp. 107-158:118. 4 Ibid.

5 See National Clinic Network Organisation Available at >

https://law.lclark.edu/centers/national_crime_victim_law_institute/projects/clinical_network/ > Accessed on 2nd

April 2014.

2

results have been tragic. Under the repealed Constitution,6 legal representation at the state

expense as a right was constrained.7 The right to protection of the law of the people suffered

great setbacks, and the concept of justice was restrictive both in nature and scope. Kivutha

Kibwana summed it well thus:

One of the bottlenecks against concretizing secure protection of the law in Kenya relates to the fact that

the right does not entitle a person to legal representation at public expense. As such, the Government

does not give legal aid to deserving persons except very restrictively in cases where persons cannot

afford legal representation are accused of murder.8

That position appears to be fast fading with the enactment of the Constitution in the year

2010.9 One of the fundamental rights and freedoms contained therein is the right of an

accused person ‘to have an advocate assigned to [him] by the State and at State expense, if

substantial injustice would otherwise result, and to be informed of this right promptly.’10

This

provision places an obligation to the government, and with it the question that then lingers is

what such portends to the practice in courts. In other words what is the jurisprudence from

the courts in as far as this question is concerned. This discourse therefore is an evaluation of

the emerging jurisprudence on the right to legal representation at the expense of the state in

the present constitutional order.

2. LEGAL REPRESENTATION

Legal representation may be termed as ‘[t]he legal work that a licensed attorney performs on

behalf of a client.’11

The underlying principle in this concept is manifested where the attorney

makes presentations in the place of the client. Whereas the client may be available in court

during the adjudication of the case, substantive legal arguments are made on his behalf by the

attorney as opposed to himself.

In criminal trials it makes all the difference whether an accused person is represented or not.

This is because of the complexities in the adversarial system that an accused person devoid of

requisite legal skills may find difficult to comprehend. James Read observed thus;

6 Constitution of Kenya, 1963 (As amended) hereinafter ‘the repealed Constitution’

7 Whereas section 77(2) (d) provided recognised the right of every person charged with a criminal offence to

defend himself before the court in person or by a legal representative of his own choice, section 77(14)

provided that ‘[n]othing contained in subsection (2) (d) shall be construed as entitling a person to legal

representation at public expense.’

8 Kivutha Kibwana, Fundamental Rights and Freedoms in Kenya (1990) pp. 56-57

9 Constitution of Kenya, 2010 (promulgated on 27

th August 2010)

10 Article 50 (2) (h). Ibid.

11 Free legal Dictionary, available at > http://legal-dictionary.thefreedictionary.com/Legal+Representation >

accessed on 2nd

April 2014.

3

Since colonial times, the courts in East Africa have in criminal cases, always appreciated that it makes

all the difference whether or not a party has an advocate and where it is shown that the individual is

denied the services of a lawyer an appeal will be allowed.12

In old democracies like the United States, the judicial attitude towards unrepresented parties

has been similar. In Gideon v Wainwright13

the court stated that ‘[t]he noble ideal of a fair

trial before impartial tribunals in which every defendant stands equal before the law, cannot

be realised if the poor man charged with a crime has to face his accusers without a lawyer.’14

Lord Justice Denning in the celebrated case of Pett v. Greyhound Racing Association15

decried the state of unrepresented parties in court when he stated that:

It is not every man who has the ability to defend himself on his own. He cannot bring out the points in

his own favour or the weakness in the other side. He may be tongue-tied, nervous, confused or wanting

in intelligence. He cannot examine or cross-examine witnesses. We see it every day. A magistrate says

to a man: ‘you can ask any questions you like;’ whereupon the man immediately starts to make a

speech. If justice is to be done, he ought to have the help of someone to speak for him; and who better

than a lawyer who has been trained for the task?

Where the interests of justice so demand, legal representation at the cost of the public ought

to be granted. In calculating the interests of justice, Winluck pinpoints the principles that

guide the courts. Thus he writes:

courts have justified legal representation on different grounds but the two most common include the

first principle that legal representation in criminal and complex legal cases should be insisted upon, and

secondly in all cases where the remedy sought is within the exclusive jurisdiction of the court, e.g. the

enforcement of fundamental human rights and the issuance of decrees for the dissolution of marriage.16

So fundamental is the right to legal representation the absence of which may result to an

injustice on the part of the accused person. Where a trial proceeds with an accused being

unrepresented and a conviction is entered then on appeal the conviction may be quashed. In

Ouma & Another v. Republic17

Porter and Mbaluto JJ noted that ‘[e]very accused has the

undoubted right to be defended by counsel. If an accused is deprived of that right through no

fault of his own and through no fault of his counsel and conviction follows, the conviction

will be quashed on appeal.’18

2.1 Legal Representation as a fundamental right.

2.11 Repealed Constitution of Kenya.

12

James S. Read, ‘The Advantages of Counsel’ (1971) East African Law Journal P 291. 13

Gideon v Wainwright 372 US 335 [1963]. 14

Ibid. 15

Pett v. Greyhound Racing Association (1968) 2 All E.R 545, at 549. 16

Supra note 3. 17

Ouma & Another v. Republic [1991] KLR 539. 18

Ibid.

4

The repealed Constitution read, ‘[e]very person who is charged with a criminal offence shall

be permitted to defend himself before the court in person or by a legal representative of his

own choice.’19

However, in section 77(14), the right to counsel was sharply constrained. This

section provided that ‘[n]othing contained in subsection (2) (d) shall be construed as entitling

a person to legal representation at public expense.’

From these provisions it is argued that the point of the law on legal representation at the

public expense would be found in the exceptions, rather than the rule. That the entitlement to

legal representation, it appears, would be a self initiative exercise by accused persons who

desired legal representation, as a general rule with minimal intervention by the state. It goes

without saying that such a venture would be successful in cases where the accused had the

resources required for hiring a legal counsel.

It is however critical to point out that all was not gloomy for the accused persons. In isolated

cases the state had (and still has) a pauper brief system which provided legal representation to

accused persons charged with murder or treason, where they cannot afford. For those charged

with robbery with violence legal representation would be availed at the expense of the state

on a first appeal at the High Court and on a subsequent appeal, to the court of appeal. Under

this scheme advocates register with the registrar of the High court who allocates cases to

them at a small fee.

The fact that legal representation was only accorded to accused charged with murder and

treason and not robbery with violence proved a difficult position to justify. This is because

the offence of robbery with violence just like murder and treason attracts death penalty. Even

the court of appeal in Stephen M’Riungu & 3 others v Republic20

clearly found it difficult to

justify the differential treatment. The facts of the case were follows:

The applicants challenged both before the High court and Court of Appeal, the discrimination

or arbitrariness of persons charged with robbery with violence on basis that since punishment

is death, as is with cases of murder and treason, there can be no basis on denying them legal

aid through the pauper brief system. The Court of appeal declined the application. It stated;

It is true that the accused may not have in a trial before a judge assisted by assessors…and help of an

advocate provided by the state if he cannot afford one but he is afforded the right of appeal to the High

court and then the court of appeal. So the proceedings and judgment in the trial court are scrutinised

altogether by five judges (in the two courts-two in the high court and three in the court of appeal)

instead of three and he is furnished by the state with an advocate of this court.

2.12 Constitution of Kenya, 2010

19

Section 77 (2) (d) supra note 6. 20

Stephen M’Riungu & 3 others v Republic [1982-88] 1 KAR 360.

5

The requisite provisions on the right to legal representation are found in article 50 of the

Constitution, on the fundamental right christened ‘Right to fair hearing.’ That article provides

that:

50. (1) Every person has the right to have any dispute that can be resolved by the application of law

decided in a fair and public hearing before a court or, if appropriate, another independent and impartial

tribunal or body.

(2) Every accused person has the right to a fair trial, which includes the right

(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial

injustice would otherwise result, and to be informed of this right promptly;

Under article 25 (c) the ‘right to a fair trial’ is among the fundamental rights and freedoms

which shall not be limited.21

This right seeks to ensure that ‘indigent persons are not denied fair hearing due to their

insufficient or lack of means to hire competent counsel.’22

Morris Kiwinda clarifies that this

right is a further ‘emphasis that the justice system ought to be accessible, expeditious,

efficient and procedurally fair.’23

The basic tests however from the wording of the article is that the right is dependent on the

‘substantial injustice’ test. That in cases where substantial injustice would not occur, then

there would be no basis for an accused person to insist on being granted legal representation

at the state expense. Jurisprudence on this article, which forms the crux of this paper, will be

discussed in detail in a later part.

It serves well to note however, that, the realisation of this right is subject to the constitutional

timelines. Under article 261 of the Constitution, parliament is under an obligation to enact

legislation to govern a particular matter within the period specified in the fifth schedule from

the date of the effective date. The right to fair hearing under which the right to legal

representation at the state’s expense falls, is to be effected by way of legislation within four

21

Article 25 of the Constitution of Kenya, supra note 9, provides that, [d]espite any other provision in this

Constitution, the following rights and fundamental freedoms shall not be limited––

(a) freedom from torture and cruel, inhuman or degrading treatment or punishment;

(b) freedom from slavery or servitude;

(c) the right to a fair trial; and

(d) the right to an order of habeas corpus. 22

Morris Kiwinda Mbondenyi, ‘The Bill of Rights’ in P. L. O Lumumba et al The Constitution of Kenya,

Contemporary Readings (2013..) pp. 94-95 23

Ibid.

6

years.24

This was indeed the basis of the decision in the case of John Swaka v DPP & 2

Others.25

2.13 International Law.

Several international legal instruments have entrenched provisions on legal representation.

The International Convention on Civil and Political Rights26

(ICCPR) in article 14 provides

that in the determination of any criminal charge against an accused person, he shall be

entitled in full equality ‘[t]o be tried in his presence, and to defend himself in person or

through legal assistance of his own choosing; to be informed, if he does not have legal

assistance, of this right; and to have legal assistance assigned to him, in any case where the

interests of justice so require, and without payment by him in any such case if he does not

have sufficient means to pay for it.’27

The Human Rights Committee, the treaty body responsible for the interpretation of the

ICCPR, has stated, ‘it is axiomatic that legal assistance be available in capital cases.’28

The African Charter for Human and Peoples Rights29

(Banjul Charter) also has explicit

provisions on this principle.30

The provisions of the Convention on the Elimination of all

forms of Discrimination against Women31

(CEDAW) have also manifested this principle.

Accordingly article 2(c) of the Convention obligates states ‘[t]o establish legal protection of

the rights of women on an equal basis with men and to ensure through competent national

tribunals and other public institutions the effective protection of women against any act of

discrimination.’

24

See the ‘fifth Schedule’ to the Constitution. 25

John Swaka v DPP & 2 Others, Nairobi High Court, Constitutional Petition No. 318 of 2011, [2013] eKLR

26 International Covenant on Civil and Political Rights Dec. 16, 1966, 999 U.N.T.S. 171

27 Article 14(3) (d). Ibid

28 The Committee in Robinson v Jamaica UNHRC Communication no 223/1987

29 African (Banjul) Charter on Human and Peoples' Rights (Adopted 27 June 1981, OAU Doc. CAB/LEG/67/3

rev. 5, 21 I.L.M. 58 (1982), entered into force 21 October 1986) 30

Article 3 provides that [e]very individual shall be equal before the law and …shall be entitled to equal

protection of the law. Article 7 on the other hand provides that [e]very individual shall have the right to have his

cause heard. This comprises: …the right to defense, including the right to be defended by counsel of his choice; 31

Convention on the Elimination of All Forms of Discrimination against Women, 1 March 1980, 1249 UNTS

13, (Entered into force 03 September 1981).

7

In interpreting the right to a fair trial, the African Commission on Human and Peoples’ Rights

noted that, ‘[t]he interests of justice should be determined by considering: in criminal matters

the seriousness of the offence [and] the severity of the sentence.’32

Under the United Nations Basic Principles the right to competent, independent legal

representation at public cost if need be, is now an integral part of the right to a fair trial.33

Recognising the universality of this right, the Tanzanian court in Alimansi Kalumabeta v

Republic34

stated that ‘[l]egal representation is a universally recognised right and an accused

person should not be deprived of his right to legal representation unless very cogent and

exceptional reasons which warrant the taking of such a drastic measure exist.’

It is submitted that, by dint of article 2(5) and (6) of the Constitution,35

the normative

international law principles are of direct application to the country.36

The effect therefore is

that the state is under an obligation in international law to provide legal representation at its

own expense to its citizens, whenever the need arises.

3. EMERGING JURISPRUDENCE.

Close to four years after the promulgation of the Constitution, the courts have had time and

occasion to express their judicial mind on the provisions of the right to legal representation at

the expense of the state. The fundamental questions are discussed under the following heads.

3.1 Who may benefit from Legal Representation at the Expense of the state?

Not every accused person is entitled to legal representation at the state’s expense. Each case

is considered on the basis of its own merit. The nature of the offence that an accused person

has been charged with is instrumental in deciding whether an accused person qualifies or not.

32

African Commission on Human and Peoples’ Rights, Principles and Guidelines on the Right to a Fair Trial

and Legal Assistance in Africa, article. H(a)–(b)(i). 33

See Principle 4 & 6 of UN Basic Principles on the Role of Lawyers, 1990. 34

Alimansi Kalumabeta v Republic [1982] TLR 329. 35

Art. 2 (5) provides that ‘[t]he general rules of international law shall form part of the law of Kenya. Under

article 2(6) ‘[a]ny treaty or convention ratified by Kenya shall form part of the law of Kenya under this

Constitution.’ 36

In The Matter of Zipporah Wambui Mathara Bankruptcy Cause 19 of 2010,[2010] eKLR, Justice Koome

applied the provisions of the ICCPR in deciding the tenability of provisions on committal to civil jail of

judgment debtors as provided in the Civil Procedure rules 2010. See further, Tom Kabau and J Osogo Ambani,

‘The 2010 Constitution and the Application of International Law in Kenya: A Case of Migration to Monism or

Regression to Dualism? (2014) Africa Nazarene University Law Journal 36-55 where the authors write,

Since 27 August 2010, with the coming into force of the new Constitution, the dualist tradition

described above has been fading mostly because international law is now an acknowledged norm

capable of applying directly. That both the general rules of international law and treaties are directly

applicable within the Kenyan legal system is now undisputable. P. 38.

8

In Dominic Kimaru Tanui v Republic37

the appellant was charged and convicted of the

offence of defilement contrary to Section 8(1) as read with Section 8(2) of the Sexual

Offences Act.38

He appealed against the conviction on a number of grounds among them that

his right to fair trial at was violated when the trial court heard the matter in the first instance.

In particular, he contended that he was denied access to witness statements and secondly, was

denied counsel, yet the offence is serious.

In response to the issue of legal representation Justice Munyao was of the opinion that,

‘where an accused faced a capital offence, then the State ought to consider providing legal

representation.’ He went further to explain that ‘in a case in which one faces a life sentence is

a serious case, and I would indeed place it at the same level as a case in which the penalty is

loss of life, so that ideally, legal representation ought to be provided at state expense if the

accused cannot afford counsel.’

In the case of W N M v Republic39

the court addressing itself on persons who may benefit

from legal representation at the expense of the state noted, that ‘such a right mainly applies to

accused persons who are charged with offences that carry death penalty.’

The appellate court in the case of David Kamau Macharia v R40

observed that ‘persons

accused of capital offences where the penalty is loss of life have the right to legal

representation at state expense.’

From these cases it discernible that legal representation would not be available to all cases.

Accused persons charged with offences whose penalty is death41

would without doubt be

granted legal representation at the expense of the state where they cannot afford. Other than

capital offences, where an accused has been charged with a ‘serious’ offence where the

penalty is life sentence42

then legal representation will ideally be accorded by the state if the

accused person is not able to afford.

3.2 Right to Legal Representation dependent on ‘Substantive injustice Test’

A reading of the provisions of the Constitution on the right to legal representation reveals that

an accused person’s entitlement to legal representation at the expense of the State is not

automatic but qualified. In other words an accused person must prove that unless he or she is

37

Dominic Kimaru Tanui v Republic HCCRA 12 of 2012 [2014] eKLR. 38

Sexual Offences Act No. 3 of 2006. 39

W N M v Republic Criminal Appeal No. 72 /2012 [2014] eKLR. 40

David Kamau Macharia v R Criminal Appeal No. 497/2007 [2011] eKLR. 41

Section 296 (2) of the Penal Code. 42

Capital offences under the Penal Code Cap 63 are: Treason as provided for under section 40, Section 203 &

204 on Murder, Section 296(2) on Robbery with violence and Section 297 on attempted Robbery with violence.

9

assigned an advocate by the State, substantial injustice would occur. The Constitution does

not give the meaning of ‘substantial injustice.’ Similarly, it fails to enumerate circumstances

under which a defendant would be entitled to state funded counsel.

In order to define what substantive injustice is the courts have suggested some factors whose

presence in a given circumstance may make one conclude that substantive injustice would

occur should the trial proceed with the accused being unrepresented.

In the case of Dominic Kimaru Tanui v Republic43

the court explained that substantive

injustice would occur in cases ‘such as where there are complex issues of law or fact, where

the accused is unable to conduct his own defence, or where public interest requires that

representation be provided.’

In the court of appeal decision of David Kamau Macharia v R.44

the court had earlier stated

that:

Art 50 of the Constitution sets out a right to a fair hearing, which includes the right of an accused

person to have an advocate if it is in the interests of ensuring justice. This varies with the repealed law

by ensuring that any accused person, regardless of the gravity of their crime may receive a court

appointed lawyer if the situation requires it. Such cases may be those involving complex issues of fact

or law; where the accused is unable to effectively conduct his or her own defence owing to disabilities

or language difficulties or simply where the public interest requires that some form of legal aid be

given to the accused because of the nature of the offence...

In summary therefore, given the factors enlisted by the court ‘substantive injustice’ may be

said to be subject to a three part test.

The first test is the complexity of the case. This is discernible from the issues of fact and law

which may not be comprehended by the accused. The second test relates to the seriousness or

nature of the offence in question. A serious offence may attract public interest to the extent

that the public may require that some form of representation be accorded to the accused

owing to the nature of the offence. The third and final test relates to the ability of the accused

person to conduct his own defence. Language difficulties experienced during the trial would

be a perfect indicator of an accused person’s inability to conduct a defence.

3.3 Right to Legal Representation is subject to Constitutional timelines.

The right to legal representation is clearly a capital intensive undertaking that requires a lot of

resources ‘which many poor countries including Kenya, have found very difficult to

accomplish effectively from their own resources.’45

The Constitution itself is wary of the

43

Supra note 37. 44

Supra note 40. 45

Supra note 22.

10

institutional undertaking that the government needs to put in place before litigants can be able

to enjoy this right. Thus in practice courts have expressed the want in the resources by the

state as a factor that impedes this right and have accordingly taken the view that the question

as to whether the Government has failed to make the right a reality would be correctly

answered when the set time lapses. In the case of Dominic Kimaru Tanui v Republic46

the

judge took the view that this right was subject to the constitutional timelines and as such not

one that could be demanded as of an immediate application. Thus he stated,

[T]he Constitution itself under Article 261 and Schedule 5, provides for a time frame of 4 years, to

implement the provisions of Article 50 of the Constitution. …[T]he provisions of Article 50, part of

which relate to the right to be provided with legal representation at State expense, are yet to be fully

enforceable as the State has been accorded time to put the mechanism in place.

It may thus be said, that whenever an accused person claims that his right to fair hearing has

been violated on account of the state not granting him legal representation, a counter

argument would be that the constitutional timeline of four years have not lapsed. This

argument is however short lived given that the four years are set to expire on 27th

August this

year.

3.4 Have courts therefore entertained applications for assignment of counsel to accused

persons?

Ideally courts are supposed to make a preliminary determination on the question whether an

accused person would require legal representation at the state expense or not before

embarking on the hearing. Where an accused person makes such an application the courts are

inclined towards making an order for assignment.

The case of Ann Wairimu Kimani v Republic47

was a criminal miscellaneous application

where the applicant beseeched the court to issue an order appointing an advocate to appear in

her defence before the Senior Resident Magistrate’s Court, Nyeri, in Nyeri S.R.M.C.

Criminal Case No. 1171 of 2010. The Motion was taken out under Article 50(2) (g) (h) of the

Constitution.

The Applicant before the court was facing a charge of robbery with violence which attracts a

death penalty. She averred that she was a lay person hence would not be able to properly

articulate her defence without the services of a trained lawyer.

The court made a determination that, given the circumstances of the case the applicant was

entitled to be assigned an advocate at the expense of the State. The Deputy Registrar of the

46

Supra note 37. 47

Ann Wairimu Kimani v Republic Criminal Misc. Application No. 17 of 2011 [2011] eKLR

11

court was tasked with ensuring that the accused is represented when the matter came up for

hearing.

3.5 What are the remedies for ‘denial of the right to legal representation of an accused

person at the expense of the state’?

Where an accused person has been charged with an offence that would entitle him to legal

representation at the expense of the state and during the trial he is not afforded counsel then

two outcomes are possible. Either a conviction may be entered or an acquittal. If a conviction

is entered and on appeal the appellant brings up the issue of un-representation as a ground

then the court may order for a re-trial. In David Kamau Macharia v R48

the appellate court

seemed to suggest that if a violation occurred in the present dispensation then a re-trial would

be ordered on appeal. The court will however first establish that there was a serious prejudice

occasioned to him by such an omission. However where an appeal is lodged on the basis of a

decision made under the repealed Constitution then an application for re-trial on appeal

would be defeated. The basis of this assertion is to be found in the following statement by the

Lordships:

We would not go so far as to suggest that every accused person convicted of a capital offence since the

coming into effect of the new Constitution would automatically be entitled to a re-trial where no such

legal representation was provided. The reasons are that, firstly, the provisions of the new Constitution

will not apply retroactively, and secondly every case must be decided on its own merit to determine if

there was serious prejudice occasioned by reason of such omission.

4. LESSONS FROM OTHER JURISDICTIONS.

4.1 South Africa.

The Constitution of South Africa49

guarantees the right to fair trial under section 35. This

right is all encompassing and includes the right ‘to have a legal practitioner assigned to the

accused person by the state and at the state expense if substantial injustice would otherwise

result, and to be informed of this right promptly.’50

The country’s scheme ‘for determining

when counsel at the state expense should be assigned encapsulates the same purposes of

ensuring protection for the accused and encouraging an efficient, rights-respecting

judiciary.’51

48

Supra note 40. 49

Constitution of the Republic of South Africa, 1996. 50

Section 35(3)(g) ibid. 51

Madalyn K. Wasilczuk, ‘Substantial Injustice: Why Kenyan Children Are Entitled To Counsel At State

Expense’ (2012) 45 New York University Journal of International Law and Politics 291, pp. 291-333:301.

Available at > http://nyujilp.org/wp-content/uploads/2013/04/45.1-Wasilczuk.pdf > 4th

April 2014

12

As far as the emotive question on what factors constitute ‘substantial injustice’ is concerned

the Constitutional Court in State v Versmaas52

stated that the;

‘…ramifications of the case and their complexity or simplicity, the accused person’s aptitude or

ineptitude to fend for himself or herself in a matter of those dimensions, how grave the consequences

of a conviction may look, and any other factor that needs to be evaluated….’

In the first decade of the 21st Century the above test was summed up in three certain and

identifiable factors being i) the seriousness of the offence, ii) Complexity of the case and iii)

Capacity of accused to fend for himself.53

These factors are contextualised in light of the individual circumstances of the accused as

opposed to the institutional set up. While the test is not fundamentally different from that

applied by Kenyan courts it is observed that the third factor (employed by South African

courts) of an accused to fend for himself, is essential in determining varying capacities of

accused persons for purposes of assigning state-funded counsel.

4.2 European Union.

The European Convention on Human Rights54

in its article 6(3) (c) provides that a person

charged with a criminal offence is entitled to ‘defend himself in person or through legal

assistance of his own choosing or, if he has no sufficient means to pay for legal assistance, to

be given it free when the interests of justice so require.’

This article is meant to offer additional protection in cases where an individual is charged

with a criminal offence. Member states to the Convention are under an obligation to establish

a court system which upholds this right, for example by providing, interpreters or legal aid in

criminal proceedings.55

In the case of Quaranta v Switzerland56

the applicant, an Italian national, had spent most of

his life in Switzerland with his parents. He resided at Vevey in the Canton of Vaud, where he

worked as an assistant plumber. On 5 March 1982 the Vevey District Criminal Court gave

him a sentence of ten months’ imprisonment, with three years’ probation, for aggravated

theft, robbery, criminal damage and taking and driving away a motor vehicle without a

52

State v Versmaas CCT/1/1/94. 53

Makhandela v State (2005) ZAGPHC. 54

Convention for the Protection of Human Rights and Fundamental Freedoms Nov. 4, 1950, 213 U.N.T.S. 221

[hereinafter European Convention on Human Rights] 55

See Council of Europe, Human Rights Education for Legal Professionals. Available at: http://www.coehelp.

org/mod/glossary/showentry.php?courseid=75&concept=Positive+obligation. >2nd

April 2014. 56

Quaranta v. Switzerland, App. No. 12744/87 Eur. Ct. H.R. (May 24, 1991),

13

driving licence. His application to the European Court of Human Rights (ECHR) was based

on the complaint that the President of the Vevey District Criminal Court had twice refused

his application for free legal assistance in the proceedings before that court.

In order to determine whether the ‘interests of justice’ required that the applicant receive free

legal assistance, the Court established the following criteria. ‘In the first place, consideration

should be given to the seriousness of the offence of which [a person is] accused and the

severity of the sentence which he risked.’ Insisting on the peculiarity of circumstances of the

case, the court observed that:

Such questions, which are complicated in themselves, were even more so for Mr. Quaranta on account

of his personal situation: a young adult of foreign origin from an underprivileged background, he had

no real occupational training and had a long criminal record. He had taken drugs since 1975, almost

daily since 1983, and, at the material time, was living with his family on social security benefit.57

The ECHR formally employs a twin test in determining an application for state funded

counsel. Its emphasis is however on the subjective complexity of a case with the effect of

analyzing the capacity of the accused to defend himself.

5. CONCLUSION.

Since the promulgation of the Constitution, 2010, a new paradigm in the discussion on the

right to legal representation at the state expense has emerged. The gist of this discussion has

revolved around the question as to what would constitute ‘substantial injustice’ given that this

is a prerequisite condition for grant of state-funded counsel.

When considering the questions as to whether an accused person would benefit from legal

representation at the expense of the state, the courts in Kenya are guided by the following

factors: the complexity of the case, the seriousness or nature of the offence in question and

the ability of the accused person to conduct his own defence.

Given that the substantial injustice test would make little sense without first considering the

capacity of the accused to defend himself, the judiciary must embark on a more decisive

evaluation when faced with such a question. To this extent, the factors outlined above must

‘be evaluated in light of the rights-protective and institution-protective roles of defense

counsel.’58

57

Ibid. Para. 34-36. 58

Supra note 51.

14

SELECTED BIBLIOGRAPHY

BOOKS

Kivutha Kibwana, Fundamental Rights and Freedoms in Kenya (1990) Oxford

University Press.

CHAPTER IN BOOKS

Morris Kiwinda Mbondenyi, ‘The Bill of Rights’ in P. L. O Lumumba et al The

Constitution of Kenya, Contemporary Readings (2011) pp. 94-95. Law Africa

Publishers

Winluck Wahiu ‘Independence and Accountability of the Judiciary in Kenya,’ in

Frederick W. Jjuuko (ed.) The Independence of the Judiciary and the Rule of Law

(2005) pp. 107-158:118. Kituo cha Katiba

ARTICLES IN BOOKS

Henry JA Lugulu, ‘The Role of Legal Ethics in Achieving a Just Society,’ in Luis G.

Franceschif & Andrew M. Ritho (eds.) Legal Ethics & Jurisprudence in Nation

Building (2005) pp. 55-87. Law Africa Publishers

JOURNALS

James S. Read, ‘The Advantages of Counsel’ (1971) East African Law Journal

Madalyn K. Wasilczuk, ‘Substantial Injustice: Why Kenyan Children Are Entitled To

Counsel At State Expense’ (2012) 45 New York University Journal of International

Law and Politics 291, pp. 291-333

Tom Kabau and J Osogo Ambani, ‘The 2010 Constitution and the Application of

International Law in Kenya: A Case of Migration to Monism or Regression to

Dualism? (2014) Africa Nazarene University Law Journal 36-55

INTERNET SOURCES

15

https://law.lclark.edu/centers/national_crime_victim_law_institute/projects/clinical_n

etwork/ >2nd

April 2014

http://legal-dictionary.thefreedictionary.com/Legal+Representation >2nd

April 2014