LEGAL AID APPROACHES FOR MARGINALIZED AND INDIGENT PERSONS IN THE WAKE OF THE COVID-19 PANDEMIC
- The Kenyan Section of the International Commission of Jurists in partnership with the Legal Empowerment Network (convened by Namati) held a webinar on the challenges and opportunities for legal aid actors in promoting access to justice for the poor and marginalized during the COVID-19 pandemic.
- The topic of the webinar was mainly informed by the fact that governments in the East and Horn of Africa are hastily enacting emergency directives, laws and regulations to curb the spread of the COVID 19 pandemic. These measures, while necessary, have nonetheless heightened the risk of human rights violations.
- Despite this reality, legal services have not been categorized as an essential service in any of the East and Horn of Africa countries.
- This event was also held to commemorate and mark entry into force of the Legal Aid Act in Kenya, on the 26th of April, 2016.
- Over 100 people from the East and Horn of Africa participated in the webinar, representing different fields of expertise and sectors.
- The webinar took the form of a panel discussion and open Q&A. The panelists included the Legal Resources Foundations- Kenya, Federation of Women Lawyers- Kenya, The National Legal Aid Service- Kenya, Users and Survivors of Psychiatry- Kenya, Law Society of Kenya, Federation of Women Lawyers- Uganda, Legal Services Facility- Tanzania and The Horizon Institute- Somaliland.
The following justice challenges were identified:
- Gender Based Violence: Confinement measures have forced women to stay with abusive partners. In some cases, victims of abuse cannot access health care services. Closure of schools places children at increased risk of becoming victims to sexual predators, forced child marriage and female genital mutilation.
- Increased cases and types of injustice: Lockdown measures have created new risks and sources of injustice, such as evictions, arbitrary dismissal by employers and demands for bribes by security and/or health officials for failure to wear protective clothing in public.
- Vulnerable communities: The surge in human rights violations is disproportionately affecting vulnerable communities such as persons with psychosocial disabilities living on the streets. Directives have not taken into consideration this group that is unable to access information and fully understand the current context. When the security forces encounter this vulnerable group, they do not respond to their needs, instead they use force to administer directives.
- Legal services are not essential: No country in the East and Horn of Africa region has declared legal aid or legal empowerment services essential. Accordingly, advocates, community paralegals and human rights defenders cannot assist persons in rural areas or those without access to the internet and/or phones. The situation exacerbates existing justice deficits.
- Limited access to courts: Judiciaries in the region are slow in their uptake of technology to conduct hearings and deliver judgements remotely. In some countries, courts are closed and perpetrators therefore cannot be arraigned. In most cases, the police have had to release the perpetrators back into the community where they committed the offenses.
- Excessive use of force by police: There is widespread arbitrary arrests and excessive use of force by police in the implementation of directives by governments, particularly in Kenya and Uganda.
- Hastily-enacted measures: Hastily developed emergency legislation may lead to further violations of rights. Quarantine measures in Kenya are comparable to incarceration, raising concerns about the rights of arrested persons.
CALL TO ACTION: EFFECTIVE JUSTICE RESPONSES
To the Governments in the East and Horn of Africa Region
- Support existing safe shelters for domestic violence survivors with financial and technical support to enable them to handle the increasing need for their services by individuals escaping abusive homes.
- Establish more safe shelters. The use of hotels or schools as temporary safe shelters should be considered, as has been done in other parts of the world .
- Prioritize domestic violence cases by virtual courts. Law enforcement officers responding to calls from victims should be trained and sensitized.
- Provide financial assistance to survivors, and those reportedly at risk of domestic violence, who may otherwise hesitate to report threats or incidents of violence for fear of economic deprivation.
- Expand social protection measures and targeted economic support, such as cash transfers and subsidies, to include women workers who have lost their livelihood and women who manage households.
- Integrate justice efforts into national COVID-19 strategies and stimulus packages. Governments must recognize that justice providers are essential workers during pandemic crisis and recovery. They can complement and enhance public services, especially among excluded or marginalized communities. They help people to understand emergency regulations and new legislation. They are critical to ensuring equal access to healthcare and any future vaccine, supporting victims of gender-based and domestic violence, navigating social welfare and other public services, helping small businesses to access business loans, and more. Note that governments must respect the independence of any groups that receives funding.
- Take measures to reduce the number of detained persons as they are particularly vulnerable to COVID- 19 as has been done in Kenya and Somaliland.
- Remember that these fundamental rights and freedoms have not been suspended;
- Article 5 of the AFRICAN CHARTER ON THE PROHIBITION OF TORTURE AND CRUEL, INHUMAN AND DEGRADING TREATMENT; AND
- Article 6 of the AFRICAN CHARTER ON THE RIGHT TO PERSONAL LIBERTY AND PROTECTION FROM ARBITRARY ARREST
To State Actors that Provide Legal Aid
- Create more channels for accessing justice that adapt to the prevailing circumstances such as toll free lines, community based radio stations and working in close partnership with community based justice structures to document violations.
- Rapidly redirect the funding of services towards online delivery, such as public information campaigns, helplines, and online mediation of disputes.
- Convene representatives of the legal profession, the private sector (in particular, technology companies), paralegals and others that provide justice services in communities, as well as stakeholders from outside the justice system including social workers, unions, community elders, and religious leaders to provide input and coordinate effective responses to the crisis by justice actors.
- Collect data and evidence for decision making from the justice frontline, especially on interactions between police and people, people’s experiences in accessing social benefits and coping with new COVID-19 containment measures, and conditions in prisons and other high-risk environments. Mine existing data sources, to identify justice needs that are likely to be exacerbated by COVID-19.
- Share effective models with other countries and draw on the experience of the private sector and of existing alternative and community-based dispute resolution mechanisms.
To Development Partners
- Realign planned activities to adapt to emerging justice gaps.
- Offer flexibility in reporting
- Provide specific grants to address emerging justice issues during the pandemic
- Increase funding for community-based organizations who are at the frontlines and those who may be able to adapt their operations to do so as a rapid response, especially in light of the surge in cases and new vulnerabilities. Assistance should come in the form of unrestricted grants, enabling legal empowerment groups to adapt their community-driven work in appropriate, time-sensitive way.
- When creating COVID-19-specific response structures, ensure that justice considerations are built into financing mechanisms from the start. Funds should be spent transparently, allow for inclusive decision-making in their use, function with independence and accountability, and support legal empowerment efforts serving vulnerable populations during and after the pandemic.
To Civil Society Organizations
- Take a multi-stakeholder approach in the provision of legal aid through partnerships with both state and non-state actors in order to facilitate the referral of cases to organizations that have expertise in different areas.
- Put in place innovative strategies that can promote access to justice during this period such as toll free numbers that will enable organizations to give legal advice or conduct alternative dispute resolution on phone.
- Leverage access to communities/clients to spread public health messages, help people to secure basic services, food aid, cash transfers, loans, and to help improve the accountability and effectiveness of COVID-19 programs. Collect real-time data from casework and share this information to highlight where programs are breaking down.
Kelvin Mogeni, ICJ Kenya Chairman
Centre Stage Media Arts Foundation Zimbabwe (Zimbabwe)
Haki Centre (Kenya)
Hiil (The Netherlands)
Langata Youth Network (Kenya)
Legal Aid Service Provider’s Network (LASPNET) (Uganda)
Legal Action for Persons with Disabilities Uganda (LAPD) (Uganda)
Mandera County Human Rights Network (Kenya)
Nuwekloof Rural Development (South Africa)
Platform for Vendors in Uganda (PLAVU) (Uganda)
Turkana Community (Kenya)
UQ Pro Bono Centre (Australia)
Alfins Joshua (Kenya)
Amos Mwatata (Kenya)
Arach David James (Uganda)
Daniel Masinde (Kenya)
Daniel Orogo (Kenya)
Epodo Benjamin (Kenya)
Hakim Mawanda (Uganda)
Katie Davis (The Netherlands)
Kimberly Brown (United States)
Miriam Kiconco (Uganda)
Monica Taylor (Australia)
Noor Ahmed (Kenya)
Pauline Martha Kamuli (Uganda)
Paul Sixpence (Zimbabwe)
Roger Roman (South Africa)
Seona Dillon McLoughlin (Malawi)
Stephen Odaro (Uganda)
Sylvia Namubiru Mukasa (Uganda)
Vincent Otieno (Kenya)
William Warutere (Kenya)
- Webinar: Legal Aid Approaches for Marginalized and Indigent Persons in the Wake of the Covid-19 Pandemic ( April, 2020).
- Pathfinders for Peaceful, Just and Inclusive Societies ( April, 2020). “Justice for All and the Public Health Emergency”.
- Justice for All and Pathfinders for Peaceful, Just and Inclusive Societies ( April, 2020). “Grassroots Justice in a Pandemic: Ensuring a Just Response and Recovery”.