Enhancing access to justice in Kenya through clinical legal education
Date
2021
Authors
Kotonya, Anne
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Abstract
This thesis examines the endeavours of university law clinics towards enhancing access to justice in Kenya. It isolates the social justice function of clinics in countries with a pressing access to justice need as that of serving the indigent and orienting lawyers towards social justice in society. In exploring the interface between access to justice and legal education, it analyses the legal frameworks, distribution, structures, settings and projects of university law clinics in Kenya in relation to literature on clinical legal education (CLE). The thesis centres on the social justice mission of CLE as a way of aligning legal education with the country’s transformative constitutional framework. In this way, it capitalises on the clinics to foster transformative legal education. The thesis makes an original contribution to knowledge when it addresses the research gap on clinical legal education in Kenya and presents empirical data on the current forms of clinical programs in law schools in the country. It incorporates the voices of clinicians and student leaders and presents the challenges they encounter in their attempt to use clinics to enhance access to justice for indigent persons. The emphasis on social justice as well as the comparison with South Africa’s original clinics differentiates this thesis from the growing body of literature that centres on the pedagogical aspects of CLE. The thesis applies grounded theory, a vigorous qualitative research method to guide the collection and analysis of data. The theoretical explanation of the factors that enhance and those that resist the role of clinics in enhancing access to justice is grounded in data which was collected from purposively selected law schools. The data, obtained inductively from the interviews and focus group discussions, is also used to develop a theoretical explanation of the use of university law clinics to enhance access to justice in a transformative constitutional context. The thesis establishes a nexus between legal education and transformative constitutionalism as well as between CLE and transformative legal education. It begins by demonstrating the absence of a suitable framework for investigating the factors that resist or enhance clinics’ contribution to access to justice in a transformative constitutional setting. The thesis then locates clinics in Kenya in the context of the development of the legal profession, legal education and the constitutional history of the country. It develops a legal and institutional framework made up of a transformative constitution and legislation governing legal education, the legal profession and national legal aid schemes. Chapter three proceeds to apply this framework to Kenya and finds a legal framework based on strong constitutional foundations that in certain instances is also fragmented, inconsistent and marred by gaps. The exploration of the CLE experiences in the country is presented in chapter four. These find the curriculum, law students, academic staff and the place of clinic in the university as central to determining the form and structure of CLE in the respective institutions. The forms of clinics are reflective of the broad definitions of CLE that include Street Law and skills courses. They provide evidence of clinics that are skewed towards the social justice mission of CLE. The data also yields aspects of clinics that influence their role in access to justice. The thesis finds that clinical practice in Kenyan universities takes the form of both curriculum-based and extracurricular clinics, with the latter bearing a strong social justice orientation and the former a pedagogical one. The focus of CLE is inclined towards social justice, while its pedagogical mission remains underutilised. The thesis analyses factors that undermine the promotion of access to justice through CLE in Kenya. Identifying shortfalls in clinical practice in the country, it deduces that the clinical practices are indeed CLE but at its nascent stages. The findings are in harmony with literature that considers the twin missions of CLE as inseparable orientations that are not mutually exclusive. They show the Constitution of Kenya 2010 and legal aid legislation as providing further impetus for CLE beyond their original goals at inception. However, this impetus is not reciprocated by the policy and legal framework for legal education. In considering the dysfunction of the legal profession as the dominant institution in providing access to justice, the thesis deliberates on university law clinics as an institutional bypass for the provision of access to justice for the indigent in the country. It proposes university law clinics as the theory of change for the legal profession. The thesis makes suggestions for future research on the understanding that further steps need to be taken in Kenya to optimise both social justice and pedagogy that are the twin missions of clinical practice
Description
A thesis submitted to the School of Law, Faculty of Commerce, Law and Management, University of the Witwatersrand, Johannesburg in fulfilment of the requirements of the degree of Doctor of Philosophy, 2021
Keywords
UCTD, University law clinics, Kenya, Access to Justice, Clinical legal education