Youth and Access to Justice: The Centrality of Community Paralegalism

Everyday across the world, someone somewhere goes through various justice issues. It can be land, housing, eviction, health, extractives, work related injury, environmental pollution , Gender Based Violence or being a victim of crime among others. Justice is directly linked to social, economic and physical wellbeing as well as health. The justice process from when a case is recorded at the police station and someone is given an Occurrence Book(OB)  number  to when a case is finalised  has implications on social interaction for example  how people perceive you , whether you get labelled in the community or how you will be reintegrated back into the community after the case is finalised , or if the outcome of the case will result into further ostracism of ex- offenders, economic implications of the justice process involve issues around payment of legal fees , whether the case affects one’s employment  or source of livelihood , whether assets  such as land or cars  have to be sold off or title deeds surrendered as bond to secure release from custody of defendants, physical well-being  implies how the impact of a court or justice process manifests on the affected person or their families .It involves issues of mental health , how drained does one get by the court processes and other related stressors. The justice process is also a harrowing experience for first time offenders as well as for those who have been framed, as was the case of a father serving a life sentence for defiling a daughter, a crime which was discovered that he never committed and was released after 8 years at Kamiti Maximum Prison[1].Imagine 8 years behind bars for a crime you have not committed. There have also been incidences where people get jailed and when they come back they find their land has been taken away by family members, or families have broken (wife or husband has remarried) or family has relocated.

Many young people come into conflict with the law either as perpetrators or as accused persons and a visit to police stations, prisons, remand facilities will confirm that indeed majority of those found there are young people. For many young people living in informal settlements, rural areas and pockets of poverty, being in conflict with the law may mean years spent in remand facilities or sometimes being accused falsely while innocent, lacking money or resources to pay bail despite the fact that every offence in Kenya today is bailable[2]. Sometimes there is deliberate labelling of poor people as criminals and other times they may lack the necessary mechanisms to access justice, and other times, these youths have actually committed what they are accused of.

Confronted with legal issues, majority of people share their plight with family members. Many a times, the individual is confused and does not know where to start from. In such situations paralegals come in handy as they can help explain to the affected person what the legal issue means and the possible implications including avenues of getting justice. At the point of arrest, there are various rights that an arrested person has. The rights of an arrested person in the Kenyan context include to be informed promptly, in language that the person understands the reason of the arrest, the right to remain silent , the right to communicate with an advocate or other persons whose assistance is necessary,  not to  be compelled to make any confession or admission that  could be used  in evidence against the person , right to be held separately from those who are serving a sentence and the right to be brought before a court as soon as reasonably possible but not later than 24 hours as well as to be informed of the reasons for continuing detention at the first court appearance , to be released on bond or bail on reasonable conditions unless there are compelling reasons not to be released. An arrested person also has the right to  remain silent[3]. But the question is how many Kenyan citizens, especially youth are aware of these rights?. In some cases, due to lack of knowledge an accused person may be tricked into admitting that they committed an offence. Paralegals come in handy at this time because they can explain the legal procedure, what plea bargaining is, the process of plea bargaining and the implications. Paralegals are also important sources of information about rights within the justice system. For example the Kenyan Constitution has provisions for the rights of an accused person  in Article 50(2) which provides that every accused person has the right to a fair trial and this includes the right to be present when being tried unless the  conduct of the accused person makes it impossible forte trial to proceed , the Constitution further says that an accused person has the right to a fair trial which entails to be informed of the charge , right to have adequate time and facilities to prepare a defence and the right to have the trial begin and conclude without unreasonable delay as well as the right to adduce and challenge evidence( Article 50 (2) (k)[4].

Access to justice continues to be mirage for millions of   people in Africa. It gets more difficult for young people and for those living in informal settlements, rural areas and pockets of poverty. The law is a very technical subject and this is part of the reason that makes it a preserve for the few. The culture of pro-bono lawyering is also not much cultivated and this is also another impediment towards access to justice for the poor and the marginalised.

The technical nature of the law makes it intimidatory.The structure of the courts also brings fear to many people. For young people who get arrested, the threat of being fingerprinted is a real scare especially when imagining that when they seek a Certificate of  Good Conduct which is a prerequisite for many employers , and it is found that they have been in conflict with the law, it will jeopardise their chances of getting employment.

Many people when confronted with a legal issue first of all become scared. To many ordinary people, the images they have of the justice system is the courts and prisons. There is also a lot of anxiety when one gets into conflict with the law. More so because the majority cannot afford the legal fees and as such legal representation becomes impossible unless one is lucky to get into contact with paralegals working in the justice system for example within the prisons.

Because of the technical nature of the law, coupled with the length it takes for a case from commencement to finalisation, many people give up in the  process and resign to fate. If you take a trip to  a prison today or a remand  facility and have a dialogue with the prisoners , you will find out that some are in remand because of petty offences or cases of misunderstandings which could be resolved by parties to the conflict coming together  to agree but  one party feels that the case ought to go to court.

The other complexity to do with justice is the lack of knowledge on law and the existing punitive measures put in place in documents such as the Penal Code. The lack of knowledge puts people at risk because they are unaware of the gravity of what someone is doing and the possible implications in relation to the offence they have committed. This therefore brings to the fore the relevance of paralegals as   mechanism for access to justice. Paralegals  are community members trained on basic law who can provide free legal aid to community members within their neighbourhoods. Paralegals can also  follow up on cases. In  many legal processes ,  delays occur and may  be as a result of a missing file , absence of witnesses  or other causes. Paralegals because they have been empowered on the justice process , can follow up  case on behalf of a defendant and find out where the  cause of the delay and after which help chart the necessary way forward.

Paralegals can also undertake advocacy work at the local level as well as national level. For example  various injustices occur in communities be it in relation to land for instance  forced evictions , child labour , Gender Based Violence , enforced disappearances , housing rights, environmental degradation for example by companies among other rights violations .Paralegals can put for these injustices to be addressed for instance by creating  community consciousness  that what they are going through is an injustice , mobilising communities together to demand change  on their situation or mobilise  civil society organisations for Public Interest Litigation in relation to a given injustice.

Paralegals enable  communities resolve their problems before they escalate. Paralegals can act as arbitrators for example when communities have a dispute. They can in a neutral way hear both sides of an issue and arise at an agreeable solution.

Paralegals can conduct preliminary investigations on cases and eventually refer these cases to the necessary authorities. Many a times when injustices happen in the community, sometimes witnesses refuse to come forward or witnesses get silenced or bribed to keep quiet. For example, cases of land disputes, forced evictions or environmental degradation  may require thorough investigation and paralegals can come in to assist for example by conducting interviews to ascertain ownership which will eventually help in building  up a case.

Documentation is key when we talk about human rights violations. Documentation helps provide facts about an incidence, can be used to mobilise further support /solidarity towards a cause or as source of evidence that a violation is actually taking place. For example, in resource extraction which has negative environmental impacts such as respiratory diseases, documentation through observations and recording these negative impacts can help bring justice to a community for example when these cases are presented to an environmental court.

Drafting any legal document costs money. Paralegals can help ease this burden on communities through helping community members draft simple legal documents. Through doing this , people who would otherwise not access legal services can access within their localities

Paralegals can also simplify legal documents for the community. Given the technical nature of the law , paralegals during legal aid clinics help community members  understand what the law says and the implications of contravening the various legislations. When communities understand the law, it helps enhance access to justice because they have the knowledge and when they don’t have access to legal representation, can self-represent in a court of law.

Monitoring human rights violations is a key component in advancing human rights and access to justice. Violations of human rights may continue to increase if there are no watch groups taking up the role of monitoring. Paralegals can come together in communities and monitor and report any emerging cases of violations. For example, issues around child rights and child protection, paralegals can monitor how local institutions engage in human rights protection. This can be done through organising activities for children and youth to express what they go through or through observation on how children and youth get handled including whether services provide are appropriate or youth friendly.

Paralegals also undertake  referrals in the community for diverse services .For instance if a community has identified a problem of human trafficking , but lacks the appropriate measures on how to handle the case or a case of Gender Based Violence which requires immediate  medical and legal intervention, the  trained paralegals can link the community  with the hospital staff or accompany the survivors of violations to seek the medical services and at the same time make follow up on their cases to ensure justice.

Court processes  are draining in nature , especially when a case has taken too long.Paralegals can  help relieve this mental torture endured in  the corridors of justice by following up cases on behalf of the accused person, explaining to them what they may not  understand  and providing the much needed emotional support  to continue with the case .

Paralegals also help contribute to the United Nation’s commitment not to leave one behind. For example, target 16.3 in the Sustainable Development Goals (SDGs) “commits all member states to promote the rule of law at the national and international levels and ensure access to justice for all”. This is  recognition of the fact that there are various barriers which impede ordinary citizens from accessing justice  In addition , many people may not see their problems as warranting justice from a legal lens .For instance if a company is releasing toxic  waste in a place habited by people , many may  not know that they have a right to  a clean environment as stipulated by the Constitution for example in Kenya  and may continue living with the toxic waste in the process, suffer from ailments. Once community members become aware of what the law is , they can be able to collectively demand for environmental protection as was the case of Owino Uhuru[5] residents in the toxic lead case in Mombasa.

When young people are trained as paralegals , it enables them to reach out to fellow youth with information on legal procedures. When confronted with justice issues , they are empowered to navigate the justice process. Young people trained as paralegals can also conduct advocacy at the local levels , they can mobilise fellow youth to speak out against injustice , additionally , most are techno-savvy and can undertake documentation of human rights violations in their communities and  rally people towards responding to injustices. Young people can also utilise theatre to create awareness about social injustices in communities and this way build community consciousness. Training young people on justice issues has positive effects.

Training youth as paralegals also builds confidence among young people to address justice at personal and community level. This is evidenced by a youth focused project where university students and out of school youth have been trained on paralegalism by Legal Resources Foundation(LRF) has had the impact of enabling youth understand justice issues and what the justice system entails. The trained youth are now ambassadors of human rights in their respective communities, championing rights and engaged in advocacy work. Some are making use of art and music to build community consciousness on  legal issues and how to respond to legal matters.

The law need not be a preserve of the few, the law can be democratised through paralegal training and youth engagement.

References

Legal Resources Foundation, Paralegal Support Network, Handbook  for Paralegals ,Nairobi, 2019 

[1] https://www.standardmedia.co.ke/entertainment/showbiz/2001397571/father-...

[2] https://papers.ssrn.com/sol3/papers.cfm?abstract_id=2359922

[3] https://www.klrc.go.ke/index.php/constitution-of-kenya/112-chapter-four-...

[4]http://kenyalaw.org/caselaw/cases/view/135316/#:~:text=These%20include%2...

[5] https://www.hrw.org/news/2020/07/22/landmark-decision-kenya-lead-polluti...