11 March 2010

Kenya: Where's Office of Public Defender?

Photo: Phoebe Okall
ODM leader Raila Odinga chats with members after a joint NEC and parliamentary group meeting


Access to justice for all is a fundamental human right. For the poor, only the Office of the Public Defender can help them access justice.

Now the Public Defender's office has been removed from the draft constitution released by the Committee of Experts on February 23.

The Public Defender's office has been included and protected in all other draft constitutions since the review begun -- from CKRC, through to Bomas, Naivasha, Kilifi, Wako up to the 2005 Referendum. It was even in the harmonised draft hammered out by the same experts.

And there are good reasons for the inclusion of the Public Defender's office in the law, especially in the wake of a strong presidential system as envisaged.

That office should be established as part of a set -- the Office of the Attorney General and the Office of the Director of Public Prosecutions.

It is not the time to joke with institutions that will help the country return to the path of peace, reconciliation and rule of law. To cite space or money as reasons to delete the office is to be short-sighted.

We know many who have died in public hospitals while waiting to be attended. We know how money meant for the poor is diverted. We know the mta-do? attitude of our public officials.

We won't bring water to your estate; what shall you do? We don't stock medicine; mta-do? We don't use Free Primary Education funds as we should; mta-do?

We know families that have accused police of extrajudicial killings and received no justice. It is time to end all this and usher in an era of accountability by public servants.

An era of public servants taking care of the public, because there is a Public Defender to offer legal aid to Kenyans who cannot afford legal fees.

The draft constitution thankfully expands the rights of Kenyans, with its comprehensive Bill of Rights. But how, pray, will that benefit poor Kenyans who cannot vindicate their rights because they cannot afford to hire lawyers or go to court?

The Office of the Public Defender is absolutely essential to go hand in hand with an expanded Bill of Rights.

The Public Defender -- with qualifications as those of a judge to guarantee independence and impartiality -- shall provide legal advice and representation to persons who are unable to afford legal service.

This is not a luxury office but one that we need given our history of lack of accountability and lack of adherence to the rule of law.

The cost of legal aid is no reason for omission of the office. Other countries are bearing the cost: Canada, Ghana and South Africa, for example. The government has piloted the National Legal Aid Programme (NALEAP). This initiative should be given teeth through the Public Defender.

The Office of the Public Defender was provided for in Article 204 of the Bomas draft Constitution released on March 15, 2004, because it was important.

We have never had an Attorney General who works to protect the people. The AG works for the Executive and defends and protects government authorities.

The people need a Public Defender to work for their interest - a Public Defender to give legal aid to 46 per cent of Kenyans who live below the poverty line of less than one dollar a day.

Our jails, prisons and remand houses are full of poor Kenyans who cannot afford the cost of defending themselves. These would also be served by the Office of the Public Defender.

MPs must reinstate this office.

Ms Nyokabi is the executive director, Kituo Cha Sheria

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