[Webinar] Legal Aid Approaches for Marginalized and Indigent Persons in the Wake of the Covid-19 Pandemic

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On Monday, the 27th of April , 2020, ICJ Kenya and NAMATI held a virtual meeting to discuss legal aid approaches for marginalized and indigent persons in the wake of the COVID-19 pandemic. This discussion focused on organisations in the East and Horn of Africa and was moderated by Santana Simiyu a program officer at ICJ-Kenya and @AimeeOngeso a Senior Network Global Officer at Namati.

Listen to a recording of the webinar here.

Discussants were:

  1. Eric Mukoya- Legal Resources Foundation

  2. Wanjiru Kamanda – FIDA Kenya

  3. Macharia Njoroge -Users and Survivors of Psychiatry

  4. Flora Bidali-Ag Executive Director, National Legal Aid Service

  5. Joyce Kagai- Law Society of Kenya

  6. Zena Musa- Nubian Rights Forum

  7. Irene Ekonga- FIDA Uganda

  8. Caitlin Lambert – The Horizon Institute, Somaliland

  9. Lulu Ngwanakilala- Executive Director, Legal Services Facility, Tanzania

Questions discussed included:

  1. How are legal grassroots empowerment activists and advocates promoting access to justice during the COVID -19 crisis?

  2. What are the main challenges that legal grassroots empowerment activists and advocates are facing in this context?

  3. What are the emerging justice issues arising from Covid-19 ?

  4. Right now, what support is needed the most from donors and governments to ensure a just response and recovery?

Key Take Aways

FIDA Kenya

  • Some of our legal aid activities such as legal awareness forums, legal aid clinics and self representation trainings for female prisoners have been interrupted

  • In the course of the first week since we launched our toll free number 0800 720 501 on 15th April 2020 we had received over 100 cases a majority of them being domestic/intimate partner violence, followed by child maintenance and defilement cases.

  • We have also received two cases where it is alleged that the perpetrators were police officers.

  • Due to the work from home and staying home directives, women in abusive relationships are placed at a higher risk. These women may be physically unable to escape the abusive environment if there is an incident of abuse at night during the curfew hours.

  • The travel restrictions to and from some counties would also mean that for women in abusive relationships who would seek temporary refuge from relatives upcountry lack this option during this period.

  • Economic impact on women leading to an increase in child maintenance cases

  • There is a need to have continuity of legal aid services even within the pandemic

Law Society of Kenya

There has been a surge of human rights violations especially with regards to use of unreasonable force during enforcement of the curfew. Some of the measures being undertaken by LSK :

  • Receiving of distress calls by members of the public via calls, texts & whatsapp on human rights violations for legal advise , referral and pro bono assistance (drafting of cases , filing), Telephone calls /HOTLINE 0731520442, Email: lsk@lsk.or.ke

  • Probono interventions through the branches

  • Conduct virtual training to lawyers on how undertake online legal aid

  • Virtually training CBOs and justice centers on how to receive matters and report to the trained legal aid providers for responses and interventions

Nubian Rights Forum

  • Difficulty in accessing essential materials to work from home e.g. internet

  • Lack of resources to move around especially for legal defenders who are sensitizing the community on COVID 19 and monitoring the situation on the ground.

  • Some of the local authorities such as police officers, chief and health workers collecting bribes from people without masks

  • Need for : Funds for sensitization on the measures put in place by the government, access to internet services and food security

Horizons Institute

  • It has been difficult to identify new detainees who need legal assistance and continuing legal education for detainees

  • We have taken the following steps to adapt:

    • Adapting both casework and legal education to focus on empowering family members of detainees

    • Guide people with detained family members over the phone

    • Step-by-step legal advice for people with family who are detained at police/prison over social media

    • Increased Public Advocacy to Reduce Prison Overcrowding ( Press release on 18 March / 1 April pardon of 574 prisoners and Press release on 13 April / Second pardon being considered)

LEGAL SERVICES FACILITY - TANZANIA

  • Emerging justice issues include: increase in sexual and gender based violence , early marriages due to schools closing, opportunity for increase in FGM cases

  • Support needed from Government: more awareness raising campaigns, partnerships that address the pandemic and joint planning and implementation

  • Support needed from donors: realignment of planned activities, flexibility in reporting mechanisms, specific grants to address the pandemic- emerging issues

  • LSF is adapting its work by linking ongoing activities/Initiatives with efforts to address the pandemic, training paralegals on delivering key messages and working in partnership with on going government initiatives

LEGAL RESOURCES FOUNDATION KENYA

  • Justice sector actors lack a coordinated approach

  • Development of emergency legislation that may lead to violations of rights

  • Being in quarantine is akin to being in prison , overuse of incarceration in the name of quarantine leading to abuse of due process

  • To adapt in this situation LRF is: facilitating sessions between courts and prisons as a result bail/bond terms have been reduced - LRF has been able to pay small fines on behalf of arrested persons, conducting remote capacity building for police on diversion so that not all matters go through the criminal justice system and encouraging communities to request for mediation for matters that are already in Court , where appropriate.

  • Donors should not allocate all funding to the COVID 19 situation as this kills the bigger picture of our work

National Legal Aid Service

  • Legal aid services will continue during this COVID period.

  • The COVID context has given us the opportunity to: fast track decentralisation of our services, move forward with accreditation of legal aid providers , enhance technology and design and operationalise mobile legal aid clinics where possible.

  • NLAS is working on a toll free line through which to serve litigants during this time.

FIDA UGANDA

  • Sharp increase in SGBV cases- victims have found it difficult to report or even access health services which are critical for victims of SGBV. There is currently a ban on both private and public transport which communities heavily rely on to move about.

  • Legal services are non essential

  • Majority of shelters for victims of domestic violence have been closed as these are also not considered essential - this has also affected the services of social workers and counsellors.

  • Courts are closed therefore perpetrators cannot be arraigned in court. In most cases , the police have had to release the perpetrators back into the community where they committed the offences.

  • Government’s COVID measures are not inclusive and are gender blind.

  • Mainly using the phone to serve communities but a majority of rural folk do not have access to mobile phones

  • We are working very closely with community justice structures in which we have invested a decade of work. They have become indispensable as they are closest to the communities. The community justice structures have been able to flag emergencies and refer cases

  • We are working in collaboration with village health teams and local government officials to identify cases that need legal intervention

Users and Survivors of Psychiatry

  • Pre- COVID, persons with psychosocial disabilities already faced discrimination. A majority of these people are incarcerated in prisons and mental health facilities and they can barely access basic needs. The COVID situation has exacerbated this.

  • The directives issued by the State have not taken into consideration persons with psychosocial disabilities

  • Persons with psychosocial disabilities are unable to access information on the directives issued by the government - they are unable to access social media or radios and TV’s.

  • For those that live on the streets, they are unaware of what is going and when the security forces encounter them , they do not respond to the needs of this vulnerable group, instead they use force to enforce directives. Example: A case in which a person with psychosocial disability was clobbered to death in Eldoret by police and there has been no meaningful follow up

  • The national mental health institution has been turning away clients suspected to have COVID - 19 as the institution workers say they do not have protective gear. This means persons with mental health issues suffering from COVID cannot access treatment for their mental condition.

Question and Answer session

Questions from Gilbert Omware, Kenya: @Mitullah

  • A question to Flora Bidali: What does that accreditation entail?

Response: The regulations provide the category of legal aid providers to be accredited by the Service as stipulated in the Legal Aid Act 2016 such as; an advocate, a paralegal, firm of advocates, public based organization, university law clinic or a government agency accredited by the regulations. The regulation provides qualifications by various legal aid providers. Application for accreditation is supposed to be in writing by completing the application form provided by the regulations. Once an application for accreditation has been approved, an applicant is supposed to pay the subscription fee (to be stipulated in the regulations). Once an applicant pays the subscribed fee, their name is entered in the register. Accreditation is annual.

  • For @Mukoya : please, can Eric repeat the point on payment of bail terms

Answer from @Mukoya: We have re-purposed some our budget lines to pay for bail terms below Kenya shillings 5,000. Similarly we have organised online court sessions for some of those bail terms to be reviewed and so far 4,807 have been reviewed by the 2nd of April… We await to see how many more end of this month

  • To Kenyan panellists: Why is prison decongestion not on the agenda here? It’s on the agenda both in Somaliland and Tanzania. It’s also on the agenda in the US and UK.

Answer from @JulieWayua : Prison decongestion has been a priority. During this period 5000 inmates were released. Further, the direction from IG on to ensure that petty offenders are not detained without access to free bail/bond is welcome as it ensures that less persons are detained.

Answer from @Mukoya: We are decongesting through a number of mechanisms- review of bail terms, paying for cheap fines, encouraging plea bargaining, employing community driven-but court regulated mediation, and victim offender mediation, requesting for administrative actions for business related crimes such as licensing, public health issues such as lack of aprons and dust coats, trading in non-designated places, Also proposing staggered payment of licenses-installments. So far from our efforts 4,807 inmates have been released.

  • Lorraine Ochiel from IDLO, Kenya:
    • I wanted to follow up on Flora’s presentation, specifically on NLAS’s current COVID response specific efforts to ensure continued access to legal aid services in the short term. Could we also get an indication of the specific interventions NLAS is pursuing, other than the tall free line, that organizations working on areas of mutual interest can collaborate on?

Response :Our services include referrals, mediation, drafting, ADR, counseling etc. To enable access to justice, the Service is available to having zoom discussions/mediations were applicable. We are available for legal advice and limited court representation.

  • Timothy Mwichigi, Kenya:

    • For NLAS: Even as the country deals with COVID-19 do we have a tentative date when legal aid regulations will be gazetted?
  • Irene Ndegwa, Kenya:

    • My question is directed to NLAS. Exactly when do we expect the Rules on accreditation to be made public? Also kindly confirm whether or not the accreditation will include annual payment to NLAS as has been previously communicated by your good offices.

Response: The regulations have gone through necessary approvals and the same is awaiting gazettment any time from now. Yes. There is an annual subscription fee for accreditation for various legal aid providers. The fee is more of a commitment fee by the legal aid providers.

  • I would also wish to commend LRF for their work and if they plan to hold/extend virtual court sessions at the Kamiti YCTC Juvenile Remand even as they continue with their sessions at the other prisons.

Response from @Mukoya: We have plans for the YCTC, still talking to the court to ensure that such an arrangement is not economically unviable. We are organising with advocates as well so that this work is well coordinated.

  • Frederick Otieno, Kenya:
    • Is there any CSO coalition that is engaged in the monitoring of the implementation of the COVID-19 containment measures by the government so that there are no violations of people’s rights?

Response: ICJ Kenya has responded to the ongoing human rights violations by making statements to the government on observance of human rights as the government implements the various drastic measures to curb the spread of the COVID 19 pandemic.These statements have been made either solely by ICJ-Kenya or through coalitions such as the Police Reform Working Group. In addition, ICJ- K has conducted a series of thematic webinars to discuss the ongoing human rights violations and innovative ways for civil Society and other actors to respond. We also have toll free number and short SMS code in conjunction with Transparency International,CREAW Katiba institute and KELIN in order to promote access to justice during this time.

  • Ann Wainaina, NLAS:
    • Question is to FIDA: how are they assisting women with psychosocial problems especially at this time where the pandemic is hindering one on one service delivery?*

Response from FIDA : FIDA-Kenya is offering free counselling services through our toll free number 0800 720 501

Beverline Ongaro- to NLAS

  • Do they have referral pathways for handling complaints especially human rights violations including SOA ones? ** Do the responses by the service providers include during curfew hours and are they collaborating with other actors eg NPS? One of the challenges that victims of GBV have is safe passage when fleeing violence during curfew hours. There is certainly a need for collaboration with NPS and NERD to address this gap.**

Response: NLAS services are provided during office houses. NLAS has a strong network with not only NPS but also with relevant government departments e.g. children departments. However, one of the challenges that victims of GBV have is safe passage when fleeing violence during curfew hours. There is certainly a need for collaboration with NPS and NERD to address this gap. In the meantime we are in the process of accruing a free toll line which we believe will access to our clients.

*** Sarah Kasande, Uganda to FIDA Uganda:

  • How do we make a case for integrating emergency legal services as part of the humanitarian response to COVID? Especially to respond to cases of gender based violence, and provide legal assistance to victims of human rights abuses such torture, arbitrary arrests and inhumane quarantine conditions (Uganda)

  • Brends Dosio, Kenya:

    • We now know that the most vulnerable need legal services support, how can the legal aid services regulations be fast tracked? (NLAS)

Response: Since the regulations are at the Ag’s office, we do not foresee challenges given that, we are still a department under the Ag’s office. However, in compliance with government directives to curb COVOD-19 , this has posed a challenge to us, nevertheless, we are in touch with Regulations Department to follow up on the regulations gazettement

  • If the vulnerable can’t afford to report violations how do we help them understand these are toll free numbers, LSK is the number toll free or can you receive reverse calls. LSK

  • What recommendations do you have to improve the flow of information to the grassroots? ALL

  • Digo Lydia Esther, Tinada Youth Organization: USP - Macharia

    • We are also running mental health program. Under Gender department we are having a great problem on how to handle the cases being that they are really suffer violation. Kindly requesting for Macharia’s contact and his assistance will be helpful.
  • Sally Wuodi, Kenya: FIDA

    • How do we go about health facilities that are charging p3 forms?
  • Caleb Wanga, Kenya:

    • Question to Flora Bidali: do you think the act is strong enough to create impact on the justice/injustice in kenya? am a member of a paralegal outfit but we are yet to feel you?
  • Yes. The Act provides a pathway for a collaborative system for legal aid delivery in Kenya for both states and non-state actors in the justice sector. I know it has taken long for the Act to be fully implemented and for the Service to fully transit from NALEAP. However a lot is happening behind the curtain and as a Service with the support of NLAS board, we are trying hard to ensure the act is fully implemented and ensure coordination of the delivery of legal aid service in Kenya.

  • Albert Rabin

    • To ICJ: How is the organization ensuring safety to all the paralegals especially now that we have curfew orders bein enforced yet they play the vital role in matters human rights

Response: ICJ has trained it’s paralegal networks on ways to monitor and document human rights violations during this period.

  • Over and above, the discussion has been about operationalizing the legal Aid Act in kenya. What exactly is the Law society of kenya doing to end this reccuring discussion? LSK

@Mukoya @caitlinlambert @JulieWayua @Sylvia @sylviamorwabe @Lulungw @fortunata @zena

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