Kenyans were robbed of a Public Defender

BY JOSEPH KAMOTHO

Had the   harmonised draft Constitution been enacted in its original form, then the major beneficiary of one of the clauses could have been the ordinary Kenyan.

As things stand now, the general public is the biggest loser in the new political dispensation. This is partly so because of political interests of major parliamentary political parties at a meeting in Naivasha.

Aware of prohibitive cost for legal services in the country, the Committee of Experts (CoE) saw the urgent need to facilitate the majority in denial of justice or have no access to legal services due to economic constraints.

Cognisant of the  fact  that a legal representation  is a  constitutional right  of  every individual  enshrined  in the  Bill of Rights,  the  CoE created the  post of Public Defender. The core functions were to provide legal advice and representation to persons who are unable to afford legal fees   charged by private practitioners.

Ironically, the  Parliamentary Select Committee  on the Constitution  scrapped  the  post   of Public Defender in one  of the  far reaching  amendments  in the  draft. It defeats reason and common sense that elected leaders could abandon constituents at their hour of need as evidenced in denial of justice for all.

The functions of the  Public Defender have since  been  shifted  to the  AGs Office that  boasts  no record  of protecting  the  public since its  inception  at independence. Section 156  (6) as revised  by parliament  states that  the AG  shall promote , protect  and uphold  the rule of law  and defend the  public interest.  Even now, the public hardly benefits from the AG’s services. The AG is the  Chief Legal Advisor  to the  government  and  asking the  holder of that  office to defend  the  public  is a  contradiction if  not a case of  conflict of interest.

Now the  public  have to  make do  with  extortionate  costs  charged by  legal practitioners  in a country  where the majority live  below  the poverty line  on less than a dollar a day. It is  the height  of irony  that  Kenya boasts  NGO’s  and institutions  that masquerade  as defenders  of public interest. Amongst them are the Kenya National Commission on Human Rights, the Ministry of Justice, Anti Corruption Commission, National Cohesion and Integrity Commission amongst others. 

The manipulation  and intrigues marred the parliamentary  deliberations  on the  supreme law and still persists  in the  quest  to implement  the constitution  ahead  of next years general elections.

The Naivasha meeting took less interest in the welfare of the downtrodden but their own interests. In short, parliamentarians   reluctantly  participated  in the  replacement  of the  adulterated  Lancaster  House  Independence  Treaty rebaptised  Kenya Constitution  in the  late 60’s. It is not in doubt that they benefited a lot from the  inherent loopholes  in the  old constitution.

Few things lawmakers hate in the new Constitution are the separation of the Legislature from the Executive   and the many checks   and balances since created.

The document is revolutionary in content and spirit and above all, promises to tame impunity, level the playing field and reforms governance.

(The writer is a former cabinet minister and  was  secretary general  of the  one time ruling party, Kenya African National Union (KANU). Email: kamothojj @gmail.com)