The Court of Appeal, in a land mark ruling, has affirmed that under the new Constitution every Kenyan has the right to have a lawyer provided at the expense of the State in cases where “substantial injustice would otherwise result.”

The old Constitution under section 77 did accept the right of an accused to legal representation but not at the expense of the State (for ‘State’ read ‘Kenyan taxpayers’). Article 50(1)(h) of the new Constitution, however, reads as follows: ‘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 at State expense, if substantial injustice would otherwise result…’.

Well that all seems quite laudable. Being tried in our adversarial legal system without the services of a lawyer would lead to injustices (and has) and most Kenyans cannot afford legal representation. So good for the people and no doubt pretty good news for lawyers (and surely we would all give a cheer for the latter?).

The decision by judges E.O. Okubasu, P.N. Waki and A. Visram, and the explanation for, reported in a full page Law Report in The Nation, does raise certain questions, however.

First, how are we (and ultimately it will be ‘we’) going to pay for it?

For one thing, surely any case where someone may be found incorrectly to be guilty would count as one in which a ‘substantial injustice would otherwise result’, and the Appeal Court ruling was clear that the ‘right’ extended to any case ‘regardless of the seriousness of the crime’. So that means in all cases, for all defendants, the State may be duty bound to provide a lawyer.

Second, the Court of Appeal found that ‘a range of international norms and standards is to be found in international covenants, treaties, guidelines, declarations and recommendations’ which though they do not specifically specify that the State must provide legal representation, imply that they should do so.

This second point was not the subject of the headline news but perhaps its should have been for the Court stated that whilst under the old Constitution Kenya had not been bound by international law or agreements until they had been formally incorporated by national legislation, under Article 2(6) of the new Constitution which states that “any treaty or convention ratified by Kenya shall form part of the law of Kenya…” this position may have changed.

With this thought in mind the Appeal Court ruling noted (now take a deep breath) that the international Covenant on Civil and Political Rights, the European Convention for the Protection of Human Rights and Fundamental Freedoms, the African Charter on Human and People’s Rights, the United Nations Body of Principles for the Protection of All Persons Under Any Form of Detention or Imprisonment, the United Nations Standard Minimum Rules for the Treatment of Prisoners, the International Covenant on Civil and Political Rights and the Commentaries of the United Nations Human Rights Committee ‘may provide instances where legal aid is mandatory’.

Perhaps they do, but they, and others, also address many other issues.

Are you getting our drift? The Appeal Court has confirmed that Kenya, under Article 2(6) of the new Constitution, is bound by international treaties, covenants and declarations etc. whether passed in Parliament as specific legislation or not, a position that is directly contrary to the repeated denials made during last year’s referendum campaign, not least by The Daily Nation newspaper, that this was indeed the case.

So you had better start reading the Kenya Law Reports in The Daily Nation and don’t just read the headlines and the opening paragraph, read the small print too. You may find, despite what you were told, that with regards to gay marriage, abortion and several other issues, the ‘position may have changed…’

The Forum is sure that Monica Achode and Michael Muringi, The Daily Nation journalists who reported the Appeal Court’s ruling, will keep us informed.