The discussion around the right to counsel has invoked the issue of whether an accused person has an absolute right to be represented by an advocate at trial and whether the State should at its own expense, provide an advocate for accused persons who cannot afford legal representation. Article 50 (2) (g) of the Constitution of Kenya, 2010 provides an accused person with the right to choose and to be represented by an advocate. On the other hand, Article 50 (2) (h) provides the accused person with the right to have an advocate assigned to them by the State at the State’s expense if substantial injustice would otherwise result to the accused person. The accused person has the right to be informed of these rights promptly. Breathing life to the Constitution, the Practice Directions relating to Pauper Briefs Scheme and Pro Bono Services provide that accused persons charged with capital offences and children in conflict with the law shall be provided with legal representation at the State’s expense. However, the same is not accorded to persons charged with other crimes such as sexual offences.
On 29th July, 2020, the High Court in Sheria Mtaani Na Shadrack Wambui v Office of the Chief Justice & another; Office of the Director of Public Prosecutions & another (Interested Parties) [2021] eKLR ruled on the nature and extent of the right to legal representation and the eligibility of persons charged with sexual offences to legal representation at the State’s expense. The Petitioner argued that failure of the State to provide accused sexual offenders with legal representation at the State’s expense violates their right to a fair trial.
The court distinguished between the right to choose to be represented by an advocate and be informed of the right promptly; and the right to have an advocate assigned to the accused person by the State at the State’s expense. The court affirmed that the right to legal representation relates to informing an accused person of their right to be represented by an advocate of their choice as stated in Article 50(2) (g). The court stated that the Legal Aid Act, No.6 of 2016 places a duty on judicial officers to inform the accused of their right to legal representation immediately after their appearance in court. The court held that a failure on the part of a judicial officer to do so, having regard to the circumstances of a particular case, may result in an unfair trial and injustice and render the trial a nullity.
The court however stated that the constitutional requirement under Article 50(2) (h) to assign an accused person with legal representation at the State’s expense is not absolute. An accused person is required to make an application to the National Legal Aid Service created under the Legal Aid Act, No.6 of 2016 for consideration.
In its finding, the court reaffirmed the right provided for in Article 50 (2) (h) and stated that legal representation is a qualified constitutional right and any eligible person is at liberty to apply for legal representation under the Legal Aid Act. Further, the court affirmed the constitutional right provided for under Article 50(2) (g) by stating that a trial court before whom an unrepresented accused person is arraigned is under the constitutional duty to inform the accused person of the right to choose and have an advocate represent him or her. Consequently, the court stated that it is paramount for judicial officers to ensure that the right to legal representation is promptly and sufficiently explained to unrepresented accused persons and that any necessary assistance is accorded to such accused persons towards seeking the representation.
The court decision can be found here.
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