Scope of the Right to Legal Representation in Criminal Matters

Reported by Nelson K. Tunoi & Beatrice Manyal in KLR Weekly e-Newsletter Dated 9th February 2012

John Swaka v Director of Public Prosecutions & 2 others [2013] eKLR
Petition No. 318 of 2011
High Court at Nairobi
M. Ngugi, J.
January 18, 2013


    1. Whether failure by the State to provide the benefit of legal representation to persons charged with the offence of robbery with violence amounts to violation of rights. (Right to legal representation– At what point does such right blends and becomes a violation of the right for any trial to be conducted without the accused being provided with legal representation by the State?)
    2. Whether it was the intention of Article 50 (2) (h) of the Constitution, as interpreted by the Court of Appeal in David Njoroge Macharia v. Republic [2011] eKLR to have legal representation provided immediately with no legislative or institutional framework in place.
    1. Whether the death penalty imposed on those convicted of robbery with violence charge is justified in light of international and regional treaties and decisions on the issue.
    1. Whether the High Court could direct the transfer of all robbery with violence matters from subordinate courts to the High Court where indigent persons had no legal representation.
  1. Whether the High Court has jurisdiction to order the Director of Public Prosecutions (DPP) not to carry out any further prosecutions pending establishment of the legal representation scheme.

Constitutional law – fundamental rights and freedoms – right to legal representation – whether the right to legal representation was to be accorded immediately after the promulgation of the Constitution – whether failure by the State to provide the benefit of legal representation to persons charged with the offence of robbery with violence amounts to violation of rights – where there were no mechanisms in place to address the issue of legal representation in criminal matters – whether the petition had merit – Constitution of Kenya, 2010, Articles 10, 21 (1), 50 (2) (h), 73 & 252; African Charter on Human and Peoples Rights, Article 7 (1) (c)

Constitutional law – fundamental rights and freedoms – right to life – whether the death penalty imposed on persons convicted on robbery with violence charge was justified in light of international and regional treaties and decisions – Constitution of Kenya, 2010, Articles 26 (3), 50 (2) (h); International Covenant on Civil and Political Rights, Articles 6 (1), 14 (3);

Jurisdiction-transfer of cases – whether the High Court had jurisdiction to order transfer all robbery with violence cases from subordinate courts to the High Court where indigent persons had no legal representation – whether the High Court would be usurping the powers of the Legislature by granting orders for transfer of cases in the circumstances – Constitution of Kenya, 2010, Article 157 (10); Criminal Procedure Code (cap 75) sections 7 (1), 69 & 78; Magistrates Courts Act (cap 10) section 4

Article 50 (2) (h) of the Constitution:
50. (2) Every accused person has the right to a fair trial, which includes the right-
(h) to have an advocate assigned to the accused person by the State and at State expense, if substantial injustice would otherwise result, and to be informed of this right promptly;

The Court of Appeal in David Njoroge Macharia v. Republic [2011] eKLR expanded the constitutional requirement that legal representation be provided at state expense in cases where ‘substantial injustice might otherwise result’ to include all situations where an accused person is charged with an offence whose penalty is death.


    1. While international covenants such as Article 6(1) of the International Covenant on Civil and Political Rights (ICCPR) encourage States to do away with the death penalty, or to reserve the penalty for the most serious crimes, the people of Kenya at Article 26(3) of the Constitution still permit the death penalty. The death penalty has been provided in the Penal Code for the offence of robbery with violence, and this provision accords with the provisions of Article 26(3).
    1. The law making authority is vested in the National Assembly by virtue of Article 94 (1) of the Constitution. Therefore the courts cannot assume the authority of the National Assembly and order that the death penalty in robbery with violence cases should be imposed only in circumstances where death has resulted from the acts of an accused. It remains the constitutional mandate and province of the National Assembly to make such amendments to the law as is necessary to provide for the circumstances under which the death penalty should be imposed in cases of robbery with violence.
    1. Article 50 (2) (h) of the Constitution is in accord with the State’s obligation under Article 14 (3) (d) of the ICCPR and Article 7 (1) (c) of the ACHPR, and its implementation will bring the State in accord with its international and regional obligations.
    1. Although there is a recognition of the duty on the State and of the need to provide legal representation to accused persons in order to avoid substantial injustice, there is nothing that indicates that the intention is to have such representation immediately, or that all trials carried out without such representation after the Court of Appeal’s ruling in David Njoroge Macharia v. Republic, Crim. App. No. 497 of 2007 are automatically a nullity.
    1. Despite the expansion by the Court of Appeal regarding the issue of legal representation, it recognized the implications thereof and consequently the need to make major policy and legislative changes, and to make financial resources available in order to put into effect the constitutional requirement that accused persons be availed legal representation in situations where “substantial injustice” would result if the accused person was undefended, and for those charged with the offences that carry the death penalty.
    1.  Directing that robbery with violence cases be heard in the High Court would require a change in the law to provide that that offence be tried in the High Court. Furthermore, the court would be usurping the power of the legislature and thus acting unconstitutionally by purporting to direct that such trials be conducted in the High Court, since this would be effectively removing the jurisdiction from the Magistrates’ Courts and vesting it in the High Court, and only the Legislature can do this.
    1. The High Court can only try cases in which the law confers jurisdiction upon it, and there is no doubt about where jurisdiction for trial of robbery with violence cases lies. The law has provided very clearly with regard to the jurisdiction of the Magistrates’ Courts to try the offence, and as long as the Magistrates Courts conduct trials within the parameters established under the law, there would be no basis for interfering with their mandate.
    1. The intention behind the provision of Article 157 (10) of the Constitution was to enable the DPP carry out his constitutional mandate without interference from any person or organ, unless there was clear evidence of violation of a party’s rights under the Constitution or violation of the Constitution itself. There were no circumstances presented before the court that would entitle it to bar all prosecution of robbery with violence cases.  If such an order was to be made, it would be in individual cases on the basis of very clear and cogent evidence that ‘substantial injustice’ would result, and cannot be made as a blanket order in respect of all cases of robbery with violence.
    1. Taking into account the practical implications to the public interest and the rights of the members of the group themselves, stopping the DPP from carrying out prosecutions until legal representation has been provided would not only be contrary to the societal interests in seeing those who have committed crimes brought to trial, but would also lead to violations of the rights of the accused persons themselves.
    1. The constitutional guarantees to citizens, including those in relation to the right to trial, must be read and interpreted in a realistic manner, bearing in mind the context and circumstances of the criminal justice system in Kenya. Such guarantees must also be considered in view of the need to balance the interests of the accused, those of the victims, and the greater societal interests.
    1.  Regarding the State action on the right to legal representation, it is clear that necessary steps have already been undertaken to put in place measures required to provide legal representation as required under the provisions of Article 50 (2) (h) of the Constitution. These include the drafting of a Legal Aid Policy and Bill, and the rolling out of pilot projects in various parts of the country for the provision of legal representation to indigent Kenyans.
    1. The basis for the demand by the petitioner to the State for information on all the persons currently charged with the offence of robbery with violence, and for compensation of each of them at the rate of Kshs 400 per day – after the delivery of the Court of Appeal ruling – is unclear. If it is predicated on the argument that the State has failed to implement the constitutional requirement with regard to legal representation, then that claim has no basis.
  1. (Obiter, as per M. Mumbi, J.) “I must commend the petitioner for taking up this matter which is of great public interest. It brings to the fore the need to start making the constitutional guarantees to accused persons a reality, and the state must move with expedition to complete what it needs to do to put in place a legislative and institutional framework, including availing the requisite resources, to provide indigent persons charged with the offence of robbery with violence with legal representation. In the interim, the respondents, with civil society organizations such as that represented by the petitioner, must use the pilot project already in place to identify and avail legal representation to those cases of indigent persons where, as the Constitution states, substantial injustice would otherwise result for lack of legal representation.”

Petition dismissed with no order as to costs.


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