Accessing justice: Representation and outcomes

At a time when Kenya is celebrating the New Constitution and its promulgation on 27 August, 2010 and getting into the harder task of implementation; the book Marginalised Communities and Access to Justice (hereinafter referred to as the Book) edited by Yash Ghai and Jill Cottrell makes good reading and is a useful tool for human rights actors especially working in organizations dealing with the rights of minorities and the marginalised. I recommend the text organized into reader friendly chapters.

The New Constitution aims at ushering into Kenya, constitutionalism and respect for the rule of law. Respect for the rule of law is one of the national values covered in Article 10. Other values include equity, equality, inclusiveness and protection of the marginalised. The Book starts with elucidation and contextualization of the rule of law as the book is the result of a research project on access to justice with the rule of law as the principal focus. In Chapter One Ghai and Cottrell discuss access to justice and the rule of law though focussing more on access to justice. Access to Justice is one of the new rights introduced by the New Constitution in Article 48. The definition of access to justice adopted by the editors in the book is critical in the days to come as Kenyans pursue implementation of the New Constitution.

The editors explain that access to justice means the ability to approach and influence decisions of those organs which exercise the authority of the state to make laws and to adjudicate on rights and obligations. Defined this way it covers the conduct of most organs of state and the process of getting into courts. Many projects on access to justice define the concept to include the entire machinery of law making, law interpretation and application, and law enforcement. It covers the ways in which the law and its machinery are mobilized; and by whom or on whose behalf. As justice is value laden, the projects focus on the content of the law and the ways in which it can be reformed to reflect the concerns of the poor, disadvantaged and the marginalised. The UNDP 2004 definition is also instructive:-

‘Access to justice entails more than improving an individual’s access to courts or guaranteeing legal representation. It must be defined in terms of ensuring that legal and judicial outcomes are just and equitable.’

In the book both dimensions are covered. Some chapters relate to the narrow definition of access to justice in the sense of access to courts while some relate to the wider definition covering aspects of law making and how just laws are. Access to justice remains a topical question in Kenya with issues on access to courts, access to legal representation, access to legal education and awareness, language of laws, attendant costs and extra burdens on this subject for the poor and marginalised.

The New Constitution defines the marginalised in the interpretation in Article 260. A marginalised community is firstly one that, due to its small size, has been unable to participate fully in the economic and social life in Kenya. Secondly it could be a traditional community that out of desire to protect its culture and identity remains un-integrated in the social and economic life in Kenya. Thirdly it would be an indigenous community that has maintained a traditional lifestyle and livelihood based on a hunter gatherer economy. Fourthly, the definition covers pastoral persons and communities, nomadic or settled communities that due to geographic isolation marginally participate in the integrated social and economic life in Kenya. It will be interesting to see which communities are identified as marginalised seeing that we have had senior Government officials deny the existence of indigenous groups in Kenya.

‘Marginalised group’ is defined as one disadvantaged by laws or practises on the basis of grounds of discrimination covered in Article 27: race, sex, health status, ethnic or social origin, colour, age, disability, religion, conscience, belief, culture or birth, among others. The various chapters of the book are important to the marginalised groups in Kenya as we move towards getting the full meaning and import of constitutional provisions and protections, for instance those covered in Article 56 on the Rights of minorities and marginalised groups. The state is required to put in place affirmative action programmes to ensure that the marginalised participate in governance, are provided special opportunities in education, economic fields and access to employment. They should be allowed to develop their culture, language and practices and have reasonable access to water, health services and infrastructure. Article 204 provides for an equalisation fund of 0.5% of the national budget to cover service provision and infrastructure development in marginalised areas. Protection from discrimination is covered comprehensively in Article 27. Constitutional provisions are one step in the journey; the more important issue is how to make the protections enforceable - thus access to justice is critical.

For the marginalised issues and access to justice the chapters of the book help us to draw important parallel lessons with other countries on minorities and the marginalised and their struggles in South Africa, Cambodia, Brazil, Colombia, Peru, New Zealand, China, India, Pakistan, Central and Eastern Europe.

The Book while looking at access to justice for the marginalised discusses in appreciable length and depth strategies like Public Interest Litigation and its potential to create powerful jurisprudence towards protection and access to rights and resources of the marginalised. Marginalised communities in other parts of the world have been able to use Public Interest Litigation with varying degrees of success. One needs to look at chapter 5, ‘Access to justice and indigenous communities in Latin America’; chapter 6, ‘Seeking justice for the historical claims of indigenous people in Aotearoa in New Zealand’ and chapter 10, ‘the opportunities and challenges of using public interest litigation to secure access to justice for the Roma in Central and Eastern Europe’. These chapters and others in the book have been written by experienced practitioners and so, as is often the criticism for such books, they are not theoretical but are rather practical experiences full of useful lessons.

The complex question of land as a central pillar of people’s struggles is addressed in the book as it relates to marginalised communities. Chapters 2, 3, 4 and 7 are instructive. They are aptly titled as follows respectively: Access to justice: Lessons from South Africa’s land reform program; Access to land and justice; Anatomy of state without the rule of law; The movement of landless rural workers in Brazil and their struggles for access to law and justice; Peasants struggle for land in China. The practical lessons in the book lend themselves to immediate application in the Kenyan context even in cases of double and multiple marginalisation as in the case of persons living with albinism or the abysmal camp-life of Internally Displaced Persons.

The questions of judicial reform come to the fore. The only way for the marginalised to access justice in the narrow prism of courts would be if the judges are ready and willing to entertain and redress their claims. The strength and independence of the Judiciary is a key plank in the rule of law. It does mean that the marginalised communities must engage in judicial reform efforts. This is so even if it is to advance the inter-section of formal and informal justice systems. The only Kenyan chapter in the book speaks to this. It is authored by Tanja Chopra, an anthropologist working with the World Bank as the Programme Co-ordinator of the Justice for the Poor Programme in Kenya. It is titled ‘Peace versus Justice in Northern Kenya: Dialectics of state and community laws’.

The role of civil society is another emerging theme in the book. Civil society must continue to offer civic education and paralegal trainings for groups of the marginalised while campaigning for better access to justice; including waiver of court fees for the marginalised cases. Legal civil society organisations must offer legal aid and recruit more volunteer and pro-bono advocates. The lawyers in turn must institute public interest litigation cases and adopt cutting edge strategies and persuasive advocacy for the courts to deliver land mark rulings. Suffice to note that most of the chapter authors are lawyers. In the near future I hope Ghai and Cottrell will edit a similar book on access to justice for the poor and marginalized with more Kenyan and East African examples.

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* Yash Pal Ghai and Jill Cottrell (eds), ‘Marginalized Communities and Access to Justice’, Routledge, 2009.
* Priscilla Nyokabi Kanyua is executive director of Kituo Cha Sheria.
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