Proposed Constitution of Kenya – Why Omission of the Public Defender? Access to Justice for All Kenyans is a Fundamental Human Right. Statement by Kituo Cha Sheria




Access to Justice for All Kenyans is a fundamental human right. For the poor Kenyans only the office of the public defender can help them access justice when they need to.

kituo Cha Sheria


Kituo Cha Sheria, the oldest legal aid and human rights organization established in 1973 is shocked to realize that the Public Defender’s office has been removed from the Proposed Draft Constitution released by the Committee of Experts on 23rd February 2010. This removal comes after a recent article of the costing for provision of legal aid services having been done by the Ministry of Finance.


The Public Defender’s office has been prominently included and well protected in all Draft Constitutions since the review process begun, from CKRC, to Bomas, to Naivasha, to Kilifi, to Wako the 2005 Referendum Constitution, to the Harmonized Draft. And there are good reasons for the inclusion and protection of the Public Defender’s Office in the Constitution especially in the wake of a Strong presidential system as provided for in the Proposed Constitution.


The office of the Public Defender should be established as part of a set with the Office of the Attorney General and the Office of the Director of Public Prosecutions. The Post Election Violence of 2007 – 2008 brought to the fore the need for the country to return to the path of the Rule of Law. The straight and narrow path of the Rule of Law is the only way to guarantee lasting and durable peace. For this reason it is not time to joke with institutions that would help the country return to the path of the rule of law and because of space or finance issues delete some as has happened to the Office of the Public Defender.


We very well know the many issues the country has with accountability. We know many cases of Kenyans who have died in public hospitals and queues waiting to be attended. We know how money meant for the poor is diverted. We know the ‘mta do’ attitude of our public officials “Mtafanya nini?’ So we don’t bring water to your side of town, what shall you do? We don’t stock necessary medicine for common treatable diseases, what shall you do? We do not use Free Primary Funds as we should, ‘mtafanya nini?’ We know families that have accused the police of extra-judicial killings and received no justice. We know how helpless we feel. 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 would be created the office of the public defender to offer legal aid to Kenyans who cannot afford so they pursue fulfilment of their rights and access justice for wrongs committed to them.

The Proposed Draft Constitution thankfully expands the rights and gives Kenyans a comprehensive Bill of Rights but pray of what benefit will the Constitution be to 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 office of the Public Defender should be established requiring similar qualifications as those of a judge to guarantee independence and impartiality. The Public Defender 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. The cost of poor service by public authorities is much higher and a cost we know all too well. Other countries are bearing the cost; Canada, Ghana and South Africa have Public Defenders and Legal Aid schemes. Many States in America have a public defender’s office. The Government has moved ahead by piloting the National Legal Aid Programme (NALEAP). This initiative should be given impetus through creation of the Public Defender in the Constitution to serve all Kenyans especially the poor and the vulnerable.


The office of the Public Defender was provided for in Article 204 of the Bomas Draft Constitution released on 15th March of 2004 on realization of the importance of such an institution. Unlike other jurisdictions we have never had an Attorney General who works to protect the people. The Attorney General in Kenya works for the Government and defends and protects Government authorities. The people need a public defender to work for the interest of the public, to protect and defend the public and ensure that Kenyans get the services they deserve for the public officials.


Access to justice for all Kenyans is a fundamental human right as provided for in Article 48 of the Proposed Constitution and other International Conventions. This right can only have full meaning if it is coupled with creation of the Office of the Public Defender to give legal aid and representation to majority of poor Kenyans who cannot afford otherwise 46% of Kenyans who live below the poverty line of less than one dollar a day will not be able to access justice as has been happening since independence. 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.


We must cut a clean break from the past with the new Constitution; the only way to do these is to increase checks and balances in the Presidential system. Ability of all Kenyans to access justice is important thus need for the Public Defender’s Office. Kituo cha Sheria asks and prays that public spirited Members of Parliament reinstate the Office of the Public Defender in the Proposed Constitution during debate in Parliament. The Public Defender’s Office was Article 195 of the Harmonized Draft Constitution. Please God, One MP speak for the poor Kenyans access to justice.


Priscilla Nyokabi – Executive Director –