Early this month, Christopher and Nelly (not their real names) set out on a journey from their offices in Mombasa. They were headed to a small village known as Marereni, 25 kilometres from Malindi town, along Malindi – Lamu Highway. Marereni is administratively located in Adu Ward, Magarini Sub County, Kilifi County.
Hellen and Christopher are employees of a local civil society organization in Mombasa. They are lawyers though in most cases, they do advocacy work. It takes them to the community, away from the comfort of their families in the coastal county of Mombasa. Their work is involving. Most often than not, the duo conduct research on various capacity building topics, community legal sensitization programs, legal aid, drafting pleadings and litigation.
Back to their venture in Marereni, they intended to train 30 paralegals; 17 women and 13 men. The intended students were to be selected on criteria sensitive to age, gender, and disability, but also on one’s capability to grasp the subjects at hand. The intention was to reach out to all sectors of the community. The duo was looking for better ways to open up to the society as a whole.
Christopher is my friend. Prior to their journey, he requested for my input in a draft concept he had developed. The intention of the paper was to provide a rationale for the activity. In essence, Christopher and his colleague had to convince their organization to spend resources on them for a week in the wilderness.
When we embarked on it, we begun with the legal basis, it was largely informed by the trending reasons on the ground. Lawyers have a way of finding a place for the Constitution. The theory of the grund norm often weighs heavy in their discussions. So Article 48 on access to Justice took its place, – stating why Marereni just like Murang’a, Garisa, Kissii, Todonyang, Komenya and any other part of Kenya have a right of access to justice without unnecessary hurdles. Despite noting the state’s role in ensuring access to justice, it wasn’t lost to us that non state actors were stakeholders in the process. The latter has always alluded to complementing State efforts in service delivery to citizens.
In addition to the supreme law, we dwelt on the recently enacted legislations, the Small Claims Court Act 2016 and the Legal Aid Act 2016. Both have provisions affecting the status of paralegals in Kenya. While the former opens opportunities for paralegals, the latter lays down a clear regulatory framework for them.
Why Marereni: when this question was asked, Christopher was active, articulate and unambiguous. He narrated how the area has recorded numerous cases of Human Rights abuses ranging from displacement of the people from their land, poor working conditions in the salt companies and abuse of authority by those in administration. He added that residents in the area of focus live in fear of eviction and suffer environmentally induced illnesses. Instances of general exploitation by those in authorities were common cases. In his view, the locals languish in absolute poverty and are unable to meet their basic needs in competitive scale because of the injustices listed.
Christopher proceeded to deride the state on how several settlements schemes intended for the locals had been fraught with allegations of corruption. He recounted that such processes had done more injury than good. He added that most residents are landless and remain squatters because they lack legal documents for land ownership.
Deep into it, Christopher told of numerous cases of environmental degradation. Such had led to corrosion of iron sheets, rise in temperatures, deforestation, loss of pasture, salinity of fresh water, air pollution, land degradation and increase of harmful dusts in the area. In his words, those challenges had attracted life threatening diseases to residents of the area.
Once he was finished with the story, he then pulled out a thick pamphlet from his drawer and gently placed it on the table. It read, ‘The Malindi Inquiry Report 2006, the Report of Public Inquiry into allegations of Human Rights Violations in Magarini, Malindi”. The Report is one huge success by an independent State body, the Kenya National Commission on Human Right on the matters of human rights abuse in the salt belt.
In a snapshot, the report details how the colonial government allocated land to salt companies without providing a viable alternative to the people of Marereni. The decision was ostensibly based on a colonial law which allowed the State to give land to salt companies without compensating locals.
More infuriating though, are the tales of continuous injustice meted by an arm of Government known to reflect colonial tendencies. The critics of the system refer to it as the epitome of colonial relic, then (2006) known as Provincial Administration. The arm has since assumed a new name, the Ministry of Interior and Coordination of National Government. The report submits that officers of the said arm have continued to instil fear in the locals. The alleged abuses at the time included abuse of power, unresponsive official conduct, corruption and a number of ills classed as mal-administration.
Beyond the basis, we read through the content of the training. Their program was detailed enough since they had visited the area and held several meetings towards developing the training concept. They listed notable challenges, current and historic. Together with community representatives, they provided a list of areas to cover. Those which they thought would make sense to the training process.
Beyond the formal explanations, Christopher shared an experience he encountered in his forays in the rural areas of Kilifi County. The tale of a man he only referred to as Karisa and his wife Njeri. The two lived in the rural areas of Bamba in Kilifi County. When Karisa met Njeri, she had just attained the age of 18 and had not applied for her identity card.
The two met in Nairobi but later relocated to the rural areas, the home town of Karisa in Bamba, Kilifi. They lived together for five years during which time Njeri made frantic efforts to pursue her registration documents in vain.
Njeri’s efforts were complicated by two factors. One, she was born outside Kilifi County, the jurisdiction where she sought to be registered. Two, security status had deteriorated; approval of Kenyans for purposes of registration had become a tall order especially in her area of residence. Worse, the poor lady couldn’t travel back to her native home. She needed an identity card to go through police road blocks.
Without signs of success, she had resorted to remain stateless in her own country, wallowing in absolute poverty. She couldn’t tap opportunities her way; they had been trimmed by her new found state of imprisonment in the interior villages of Bamba. She could neither do a formal job requiring an identity card nor travel beyond police barriers in pursuit of her businesses.
When Christopher met the couple, he had organized a public sensitization forum which brought together a number of civil societies, state officials and representatives from Independent Commissions. Njeri was cautious to share her predicament. She did not know whether sharing the same would pull her out of the miseries or fix her deep into the trouble. When Christopher introduced himself to the gathering as an advocate of the High Court, Njeri got closer. Christopher notes that his presentation on advocate confidentiality came in handy. She approached one of the community paralegals in the forum to accompany her to the advocate. She bestowed trust in him and as a result, she got the vital documents. The albatross was off her neck.
Njeri’s story is replicated in a number of villages across the coastal region and Kenya at large. Many people suffer in silence because they lack credible avenues of access to justice. In cases where they are, either cost is evidently detrimental to the poor majority or issues of trust stand in their way to access justice.
Who are Paralegals?
While in school, we learnt about paralegals, albeit in the formal office settings. The description took the dictionary meaning. It referred to them as persons trained in subsidiary legal matters but not fully qualified as a lawyer. They acted as enablers in the process of justice. Their role leaned more to assistance provided to advocates in preparation of their work.
The material in school traced their development to late 1960’s when law firms and individual practitioners sought ways of improving their efficiency and ensure cost effective delivery of services. Their involvement in law firms ultimately reduces the cost to the client and frees time for attorneys.
Private law firms remain the highest employers of their services. They have however been incorporated in corporations, governmental agencies, both National and County Governments and other entities to perform specifically delegated substantive legal work for which a lawyer is responsible.
We were taught that only licensed attorneys may render legal advice to consumers of legal services. Paralegals are thus prohibited from doing so. The work product of the paralegal becomes the attorney’s work product. The setting stops them from accepting a case, setting a fee, or representing a client in court.
In his presentation in class, the lecturer stated that paralegals were assigned to take statements from witnesses, interviewing clients and passing on relevant information, conducting research on any pertinent legal issue, presenting applications to courts, and helping lawyers prepare for court cases including opening and closing arguments and aiding in court pleadings or motions. In this context, every pupil from Kenya School of law would wonder where the difference between a paralegal and an advocate.
Case for Community Paralegals
Christopher’s intention in Marereni was meant to start a Justice Centre. For him to do so, he needed to train a good number of people to successfully run the centre. The concept of community paralegals is without doubt, a new phenomenon. They work in the community, away from the offices where they are under close monitoring by advocates. They are also required to be under the supervision of an authorised Legal Aid entity. In this instance, the organization where Nelly and Christopher work will be expected to have closer supervision of the Marereni centre.
Christopher opines that in communities where education standards are considerably low, people tend to trust their own with intricate legal matters. Training community based members works well for the locals.
Long distances, and the high cost of legal services have impeded access to justice for many citizens. In Marereni for instances, the closer you can meet an advocate is 25 km in Malindi and at your cost. The remuneration order is far too cruel to the poor. For a number of reasons, advocates rarely engage in community work that does not attract pay.
On the other hand, it is quite noticeable that language barrier is a core obstacle to access to justice in the rural coastal areas. Most people speak local dialect while the advocates in the region are from various parts of the country.
Community paralegals bridge such gaps where the services of advocates may not satisfactorily suffice. They have a proper understanding of the local dialect. They also have a better appreciation of the contexts under which the legal issues arise. Because of such advantages, they are able to give simple and basic legal advice, refer such needy community members to key service providers, like in the case of Njeri.
Community paralegals also have a better way of explaining to their colleagues in the society, the legal procedure and court processes based on circumstances of their respective cases. They can accompany vulnerable members to court for lodging applications, to police stations to make reports and make necessary referrals.
The other major point that gives them an edge in resolution of local problems is the conflict of culture and the concept of foreign law. In the remote areas of the coastal region, probably because of their experiences with historical injustices, people are slow to embrace the formal legal process. It is even worse whenever an outsider is involved.
While we laud their role in the community, it is imperative that rules be set to regulate their actions. Looking at the content of their program, I realised that Nelly and Christopher had intended to impart to their students topics equivalent to seven major units in law. These units take a semester to teach students in undergraduate law school, here they were doing an equivalent of the same within a week. Even though my friends have plans to conduct regular refresher trainings, such training ought to be pegged on valuable standards that add value for stronger community justice centres.
The passing of the Legal Aid Act and the Small Claims Court Act are attempts in the right direction.
The Legal Aid act for instance requires paralegals to be accredited upon undertaking specific courses. The Act defines a paralegal as a person employed by the Service or an accredited legal aid provider who has completed a training course in the relevant field of study in an institution approved by the Council of Legal Education.
On the other hand, the Small Claims Court Act provides an avenue through which paralegals may represent people in the court. The Act stipulates that any one, save for legal practioners, may represent another in a case in the court. They only need to have sufficient knowledge of the case and sufficient authority to bind the party being represented.
The concept of community paralegals ought to shift our energies in dealing with injustices that threaten our communal rights, peace and security. The world may as well choose to train more community paralegals as opposed to arming militia.
BY ZEDDY ADIKA
This article appears in our newsletter, The Deuteronomy Vol 5, Issue 4 of August 26th, 2016