The Law “Mashinani”

 The Law “Mashinani”

Every accused person has the right to a fair trial, which includes the right—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; Article 50(2)(h) of the constitution of Kenya. So, the common mwananchi who can barely put food on the table finds himself in trouble with the law. He’s arrested and detained in police custody. The prosecution quickly picks up the case and the accused is set to appear before court. There is only one problem. Who is going to represent this poor man?

Of course many of us would be quick to answer: the state will provide a lawyer! There are lawyers who offer pro bono, even law firms dedicated to have each of their advocates pursue cases on such terms every year; There are NGOs kind enough to take up the cases!

The real position is that even as these quick answers are given, something still rings at the back of your mind telling you that even these aren’t enough. The NGOs can only do so much. Willing advocates can only help a few. Even with efforts to provide basic legal education to the public solves just but a small percentage of the problem. The legal education provided is never enough to help one stand in court against a professionally trained prosecutor.

Every day, more and more Kenyans who do not have access to lawyers are subjected sentences that would be less grievous had they had legal representation. Possibly an acquittal per se. Some of these people go to court with the most random “legal” missiles they picked up in a conversation in the village, or advice given to them by fellow inmates in remand. The very unfortunate ones would merely say that they are suffering in prison. They are the breadwinners of their families and their children back at home are suffering. When asked to cross-examine witnesses, questions asked are very unlikely to have a bearing on their case. As a matter of fact, the best chance of an acquittal would be a withdrawal of the complaint provided for under Section 204, Criminal Procedure Code. Let’s face it though, how often does that happen? The other scenario is when the accused is found to have no case to answer (Sec 210 CPC), or on a much lower scale, non-appearance of complainant at hearing (Sec 202 CPC).

The state of our current justice system is that which comprises more offenders than legal representatives with an approximate ratio of 163:1 in Nairobi and Rift Valley. The irony of the numerous law graduates countrywide who have not been absorbed into the mainstream practice aside. While it still doesn’t at all cross the minds of most people to help them, we all appreciate the efforts put by those who are trying. As the country competes with the rest of the world to have the best justice system, the law “mashinani” is still a challenge we hope to address soon. So the best chance yet of not having to worry about legal representation is to stay out of trouble.