Justice Needs and Satisfaction in Kenya 2017 Legal Problems in Daily Life 3

Justice Needs and Satisfaction in Kenya 2017 Legal problems in daily life 3

Table of contents

Executive Summary...... 4 This research was supported by the World Introduction to Justice Needs & Satisfaction Study in Kenya...... 9 Bank and the Judiciary of Kenya. We are Legal Problems in Kenya...... 24 grateful to the staff of the Judiciary for Legal Information and Advice ...... 44 their support and advice. Dispute Resolution...... 60 Trust in Legal Institutions and Legal Empowerment...... 82 Land Problems...... 98 Family Justice...... 122 The Justice Journeys of People from Low-income Households...... 144 The Voices of the Justice Leaders in Kenya...... 162 Conclusions & Recommendations...... 180

Disclaimer This report is a living document and subject to revision. Whenever the report is revised it will be posted at www.hiil.org/publications/data-reports. This version of the report was generated on March 14, 2018. 4 JUSTICE NEEDS IN KENYA - 2017 5

Executive summary

In cooperation with the Kenyan judiciary, In order to construct a complete picture of situation in which an accessible, affordable in different ways. They encounter in 2017, HiiL Innovating Justice conducted justice in Kenya, we enhanced the survey and fair justice process is needed. Crime, different types of legal problems. Land a nationwide Justice Needs and data with a series of qualitative interviews land problems, family-related disputes, problems predominantly occur among Satisfaction survey in Kenya. The main with key leaders from the Kenyan employment problems and disagreements poor and rural communities. Young objective of this study is to map out the Judiciary. The information from justice over money are the most frequently Kenyans face a disproportionate rate of demand and supply of justice services leaders and justice providers helps us to occurring legal problems in the everyday crime victimization compared to other as the Kenyan people experience them. better understand people’s voices about lives of Kenyan people. age groups. Lower income and poorly Using a bottom-up approach, we asked justice. They provide a valuable and sincere educated people more often report more The analysis shows that the volume and 6005 randomly selected individuals across account of the institutional framework of than one problem: experiencing a legal sophistication of the needs for justice in Kenya whether they had experienced a justice in Kenya. need increases the risk of encountering Kenya will continue to grow. Several legal, legal problem and what they did about another one. This report pursues the following specific social and economic factors contribute to it. Most importantly, we asked the people objectives: that trend: The consequences of unresolved legal to evaluate the costs and quality of their problems: Legal problems which are not justice journeys. The users of justice told Enhance the understanding of the The Constitution of 2010 widens • • resolved in a fair manner have profound us that 63% of Kenyans had encountered justice needs of the Kenyan people significantly the scope of the effects on the people involved. We one or more legal problems in the past fundamental, social and economic Highlight bright spots of the justice observe that violence is a prevalent issue four years. To resolve these problems, the • rights; system and establish focus among many of the respondents. The data people of Kenya use various formal and areas that exhibit capacity for Growing middle-class and urban shows that between 1.3 and 1.6 million informal justice mechanisms. • innovation populations will encounter more and Kenyans had to deal with violent crime or different legal problems; To better understand access to justice • Provide an agenda for justice domestic violence during the past four from the bottom up, we follow the entire innovation that builds on the needs of • Kenya is witnessing rapid economic and years. Equally concerning is the fact that justice journey, from the moment the users of justice processes technological change which affects more than half of the respondents report legal problem appears, to the moment it people’s relationship with the law; to have experienced extreme stress and has been resolved or abandoned. People mental health problems due to their legal shared a lot about their needs for the rule Needs for Justice in Kenya: • Kenyan people are increasingly more problems. of law and justice, including the specifics aware of their rights and entitlements; Pervasive and Ever Growing The quest for accessible and high quality of the legal problems that they encounter, The legal framework becomes an ever justice journeys: There is a significant the dispute resolution mechanisms they Bottom of the pyramid: Based on the data, • more complicated and pervasive part of and growing demand for justice in Kenya. use, their perceptions about the quality of we estimate that between 17.2 and 17.9 daily life. People need accessible, affordable, quick the justice procedures, and the quality of million Kenyan citizens have experienced and fair justice journeys. Both users and the outcomes and the costs of accessing one or more legal problems in the past One size does not fit all: People of stakeholders recognize the rising demand justice. four years. Almost two out of three adult different genders and from different Kenyans (63%) have encountered a socio-economic groups need justice for high quality justice journeys. 6 JUSTICE NEEDS IN KENYA - 2017 7

Neutral, inclusive and respectful justice Formalistic and difficult to understand non-monetary damages. Users of justice The way forward processes: The people of Kenya actively procedures pose significant challenge also want to see that outcomes of justice Based on the gathered data about how respond to the legal problems they face. for the people who navigate them. processes improve the relationships the users of justice and justice leaders Most of the people who experience legal Poor and uneducated users of justice between the disputants. view justice in Kenya we formulate problems (81%) take active steps to are particularly impeded by that. Three Accessible justice: The Justice Needs a set of five strategic and action resolve them. Besides self-help strategies, quarters of the users of justice in Kenya and Satisfaction study brings forward recommendations: institutional providers of dispute seek legal information and advice. a mixed picture of the affordability and resolution, such as courts, the police and However, relatively few can afford the accessibility of justice in Kenya. The chiefs are rated as being most helpful services of lawyers to help them navigate users of justice link costs with level of on the justice journeys. While courts their justice journeys. Low-income people tionalization of the justice processes. Picture the whole justice journey: and the police are more popular among benefit significantly less than their Formal adjudication is perceived as costly organize justice delivery around respondents who are highly educated, wealthier counterparts from advice and in terms of money and time. People the particular needs of the wealthy or live in urban areas, chiefs are representation from qualified lawyers. share that they spend a considerable Kenyan people particularly helpful for the poor and rural Fair outcomes: Fair justice processes amount of time and money traveling to population. should deliver fair outcomes. The people the proceedings organised by formal Another bright spot of justice in Kenya is of Kenya want dispute resolution stakeholders. Informal proceedings are Strengthen the links between that many people pro-actively reach out processes which resolve their problems, less costly. formal and informal justice: to the other party in the dispute. This is restore relationships and damages design seamless justice journeys There is one dimension of people’s a solid basis for the design of innovative and ensure that the problem will not experiences with justice which deserves justice processes. reoccur. A relatively strong point of the focused attention. Most people experience justice journeys in Kenya is that the Place special attention on By and large, the users of justice in Kenya their justice journeys as stressful. This is a users are positive about the resolution the most vulnerable: provide assess the justice processes slightly higher significant barrier to access justice. Many of the problem. The outcomes of the affordable and accessible justice than the middle of the measurement reasons can contribute to this negative justice journeys involving formal justice journeys for all scale of costs and quality of justice. On image. First, the uncertain duration of the institutions are experienced as more the one hand, this reveals clear room for justice journeys, particularly the formal fair. The caveat here is that these are the improvement, but on the other hand we processes, stresses the users. Second, perceptions of the Kenyans who managed Intensify consistent and see that justice is being delivered on a in formal adjudication there are a lot of to receive an outcome. More than half of thorough data collection: ensure daily basis. technicalities and jargon which scare the individuals who encountered a legal accountability and focus on the people, particularly those who are not Improvements in the quality of the justice problem (54%) say that they did not users of justice supported and represented throughout procedures can be made in different manage to receive an outcome. dimensions. First, process delays and complex justice journeys. Unrepresented backlogs are particularly demanding However, the fairness of the outcomes of users of formal proceedings also tend to Promote justice innovation: problems for formal adjudication. Both the justice journeys can be significantly be poorer and less educated. encourage, build and sustain an users of justice and justice leaders are improved. Restorative justice scores low. eco-system of justice innovation concerned by the time it takes to resolve Improvements can be made in how the and technology that supports legal problems through the courts. justice processes restore monetary and justice delivery 8 JUSTICE NEEDS IN KENYA - 2017 1 Introduction to Justice Needs & Satisfaction research in Kenya

Introduction Scope Our approach Research Methodology Demographics 10 JUSTICE NEEDS IN KENYA - 2017 11

INTRODUCTION

1 Hearing Wanjiku

In 2017 HiiL conducted a Justice Needs This report identifies the most pressing justice systems of neighbouring countries and Satisfaction (JNS) study in Kenya in justice needs in Kenya, told by the or in other parts of the world. partnership with the Kenyan judiciary. Kenyans themselves. Here you will find After the adoption of the Vision 2030 This is in line with the judiciary’s focus Wanjiku’s voice. She will tell you how plan, and the new Constitution of 2010, on promoting access to justice and the impactful her problems are, and what she the Kenyan judiciary has embarked upon Kenyan Constitution. Article 159 states did to try to solve them. a transformative process, focused on that judicial authority is derived from The quantitative interviews were citizens and public engagement. That the people, and article 232-1D stipulates supplemented with in-depth qualitative process is as ambitious as it is impressive. that the people should be included in the interviews with justice leaders and justice Much has been achieved. Much more still process of policy making. To accomplish providers. This mixed-method approach needs to be done. We are proud to have this, we knocked on 6005 people’s doors allowed us to obtain bottom-up and top- been asked by the Kenyan judiciary to across the country to discover the volume down data to evaluate the justice system contribute to this process. We hope this and nature of the legal problems they had through three lenses: the users, the data will be used as a springboard for experienced in the past four years. decision-makers, and the implementers. targeted, evidence-based interventions, We followed their entire justice journeys. focused on justice improvements where Very few legal problems reach formal First, the steps they take in looking they are most needed. courts in Kenya. This situation occurs in for information and advice: assessing many countries across the world. Hence, We would like to thank the impressive whether they have a legal problem and we include both formal and informal justice leaders from the Judicial Training developing a strategy of how to proceed. justice providers in our methodology. Institute, the Office of the Chief Then, the steps they take towards Depending on the type of problem, we Justice, the National Council for the resolving their legal problem: did they observe that people prefer different Administration of Justice and Judiciary's attempt to resolve it by themselves? Did types of justice providers for both legal Performance Management Directorate for they involve other parties? If so, who? information and advice, and dispute the excellent cooperation, constructive Did they receive a resolution? Thirdly, we resolution. feedback, and what they taught us about look at how they assess their preferred the challenges and opportunities for dispute resolution strategies based on We have a methodology with a record of judicial transformation. It has been an ten factors of fairness. We also examine accomplishment. Through the chapters, honour for us to work with you all. people’s perceptions of public and private you will see benchmarks that compare the institutions, as well as of their own legal results to other studies we have carried empowerment. out. This provides a reliable comparison to 12 JUSTICE NEEDS IN KENYA - 2017 13

INTRODUCTION

This report highlights the main findings Scope of measuring from the 2017 Kenyan Justice Needs Approach of HiiL the justice needs and and Satisfaction Survey, which has been compiled with input from more than 6,005 satisfaction in Kenya respondents from 28 counties.

The main objective of this study is to • Is about justice in people’s lives and • Informs users and suppliers about Purpose of the study explore and understand the justice needs understanding their experiences in justice services. Enables users to be and experiences of the people of Kenya. seeking access to justice. Formal and informed about where to go and which It maps out the existing justice needs informal justice journeys are studied. services to use and assists suppliers to improve their services. of Kenyan men and women. Our next • Enables decision-makers to focus objective is to understand the strategies on justice when and where it is • Offers a cost-effective alternative that the individuals employ to respond needed most. The problem areas are to monitoring progress in the justice to the existing needs for justice. In that highlighted by the citizens; a true sector. A standardised and repeatable part we explore where the people seek bottom-up approach. approach leads to: economies of legal information and advice; which justice scale, a reduction in operational costs, Provides robust evidence that can journeys they pursue to resolve the • increased efficiency (time and resources support programming and policymaking existing problems. saved), a reduction in operational risk in the areas of justice and rule of law. From policy and practical perspectives and cross country benchmarking. the most important part of the study is • Builds on local knowledge about what the attempt to understand how much works best (identifying the successes of fairness and justice the people receive justice). when they need it. To answer this question we measure the costs, the quality of the procedure and the quality of the outcome of the existing justice journeys in Kenya. This shows which justice journeys deliver what the people expect and which dimensions can be improved. 14 JUSTICE NEEDS IN KENYA - 2017 15

INTRODUCTION

1 Methodology of Why bottom-up justice matters? data collection

Men and women in Kenya experience strategies and ultimately how much justice Data collection: many justice needs in their daily lives. In people receive or do not receive when they April – July 2017 the eyes of citizens, the needs for justice need it. and rule of law is all about disputes and Bottom-up justice is key for innovating Respondents: grievances, such as family problems, crime, the delivery of justice. First, effective and 6005 disputes with employers and neighbours, innovative solutions can only be designed disagreements with administrative and implemented if the user of justice Geography: authorities, housing problems, etc. Very is in the centre of the reform. Second, 28 counties in Kenya few of these needs are referred to and change works best if it considers the resolved by the justice system. As such problems at a grand level, but implements they are rarely on the radar of policy- Data collection: solutions where the people interact with makers, providers of justice services and Afriquest justice. Third, justice innovation is about international donors. Bottom-up justice the concrete re-design and improvement is rarely part of the debate about Kenyan of justice journeys. This is an iterative justice reform and its priorities. Most often process, which, if implemented wisely, the focus is on top-down justice: how can deliver more justice to millions of the courts, prosecutorial services, police people in Kenya. There are no small justice and other justice institutions mobilize problems: every injustice that is prevented resources, cope with demand and deliver or resolved fairly, has a direct and positive results contribution to the legal empowerment HiiL's bottom-up approach to justice in of citizens and human development in Kenya is citizen-centric. It places the Kenya. Moreover, justice and rule of law women and men of Kenya, from big cities are positively linked to socio-economic and small villages, from the west and the development. east at the centre, in order to understand the needs for justice, the response 16 JUSTICE NEEDS IN KENYA - 2017 17

INTRODUCTION

Fairness on justice journeys, what was the 2. The quality of the procedure How we measure price you paid in terms of money, time and • Voice and neutrality: process control, effort? People use formal and informal decision control, neutrality, consistent access to justice processes to resolve their legal problems. application of rules In the Justice Needs and Satisfaction Tool • Respect: respect, politeness, proper the commonly applied justice processes communication are called justice journeys. HiiL measures • Procedural clarity: timely explanation each justice journey by asking the people of procedures and rights about their perceptions of the process, 3. The quality of the outcome the outcomes and costs of the journeys. To understand the role of justice in everyday life, we asked a large sample of randomly Fair distribution: distribution is fair The questions are categorized and • selected Kenyan citizens about their experiences with and perceptions of justice. A according to needs, equity and displayed in ten easy-to-understand specially designed research tool, the Justice Needs and Satisfaction Tool, with about 110 equality criteria indicators of the costs and quality of questions, explored their attitudes about the justice journeys that exist to respond to the Damage restoration: fair compensation access to justice. Our approach measures • needs for justice. These are some questions we asked the respondents: for monetary damage, emotional harm justice from the bottom-up. To what extent (scale 1-5) and damage to relationships • did the process make you feel frustrated? 1. The costs of justice • Problem resolution: extent to which • did the process make you feel angry? • Money spent: out-of-pocket costs for the problem is solved and the result • were you able to express your views and feelings during the dispute resolution legal fees, travel, advisors has been enforced process? • Time spent: time spent to search for • Outcome explanation: extent to • were the same rules equally applied to you and to the other party/ies? information, attend hearings, travel • which the people receive outcome • was the dispute resolution process based on accurate information? Stress and negative emotions information access • did the adjudicator explain your rights and options during the process thoroughly Voice and and make sure you understood them? neutrality

was it important for you that the division matches what you deserved? Stress and • Respect emotions

Time spent Procedural What are your most clarity urgent and frequently occurring justice Did you feel you had the problems? 1 2 3 4 5 tools and skills to resolve

the problem? Money spent Fair distribution For each path to justice, we plot the What was the price you justice dimensions in a spiderweb paid in terms of money, chart. The number 1 means not time and effort? satisfactory and number 5 means Where did you seek Outcome Damage solutions? explanation restoration satisfactory Problem resolution The research has been divided in Research four different phases: 1. The ‘Project Foundation’ phase 2. The ‘Research’ phase 3. The ‘Data validation’ phase methodology 4. Report & Presentation

Project Research Data Report & Foundation Validation Presentation

Background research on the Ken- Quantitative data was collected: A triangulation workshop was We have prepared a final yan judicial system and the local 6005 randomly selected adults organised in Nairobi in August report to present our context in which it operates was were interviewed between the end 2017 to validate the data with a findings. conducted. Moreover, the re- of March and the end of June 2017. wide group of experts assembled search instruments were adapted Additionally, qualitative data was by the Judicial Training Institute. to the local context and language collected: 30 in-depth, qualitative The provided feedback and insights through pilot testing and the use interviews with members of the were incorporated into the report. of local expertise. Kenyan judiciary were conducted. 20 JUSTICE NEEDS IN KENYA - 2017

INTRODUCTION

Demographics of the sample EducationEducation level level

No formal education 8% • Our sample consists of 6005 • On average, 4.4 people live in one respondents that have been randomly household. Primary or secondary education 55% sampled among adults residing in • The level of formal education among Kenyan settlements between the end our respondents varies substantially. of March and the end of June 2017. It Roughly 8% of the respondents have Vocational training or diploma 27% is representative of the Kenyan adult no formal education at all, while 55% population in terms of gender, age and have completed primary or secondary University or postgraduate degree 10% the distribution of people living in urban education. Slightly more than one third and rural areas. of the respondents have completed • The sample includes slightly more men vocational training or have a university than women (54% compared to 46%). degree. The pattern is quite similar for EmploymentEmployment status status • The average age of the respondents is 34. both genders, though women have a • The majority of the respondents are slightly lower level of formal education on married (57%). Among respondents who average than men. I work for an employer 29% are younger than 25, more than 75% are not married, while among respondents Unemployed 27% older than 25, two thirds are married. I am self-employed 26% Age & category name % Marital status % Farmer 12% 18-24 Youth 20% Married 57% 25-39 Young adulthood 52% Single, never married 27% Student 3% 40-64 Middle adulthood 26% Married, but separated 5% Other 3% 65+ Old age 2% Widowed 5% Gender Co-habitating 2% Housewife 2% Divorced 2% Male 54% Retired 1%

Unable to work 0% Female 46%

0 5 10 15 20 25 30 22 JUSTICE NEEDS IN KENYA - 2017

INTRODUCTION

EconomicEconomic status status

We are able to buy food, energy and clothes but buying goods for longer use is a challenge 51%

We are able to buy what is necessary but buying clothes is difﬁcult 21%

We do not have enough money for the basic 18% needs such as food and energy

We can afford almost whatever we want, car, 6% housing and other

Do not want to answer 4%

“Other” includes all categories with less than three percent, including “Housewife”, “Unable to work”, “Retired”. 300-600 200-300 • In our sample, the overall • The data collection took place in 28 100-200 unemployment rate1 is 27%. It is of the 47 counties in Kenya. In each 1-100 slightly higher for women than for men county, we collected between 80 and Not sampled (31% compared to 24%). 600 interviews. A substantial part of our sample 71 % of interviews took place in a rural • • The map shows the number of respondents that we interviewed per county. struggles financially. Almost 20% setting. of respondents indicate that they have trouble to make ends meet, and another 20% can afford just enough to survive.

1 According to the International Labour Organization, the official unemployment rate of Kenya was 11% in 2016. This percentage is lower than in our data, since it is calculated as the percentage of unemployed people among the labour force, whereas our data calculates the percentage of unemployed people among the total population (aged 18 or older). 24 JUSTICE NEEDS IN KENYA - 2017 2 Legal Problems in Kenya

Problem prevalence Most serious legal problems Types of problems Consequences of the problem 26 JUSTICE NEEDS IN KENYA - 2017 27

LEGAL PROBLEMS IN KENYA

2 Have you experienced a legal problem in the past 4 years? Have you experienced a legal problem in the past 4 years? Between 17.2 and 17.9 million Kenyans experienced a legal No problem reported 37% 63% problem during the past 4 year One or more problems

No problem reported Almost two out of three people in Kenya similar to what we found in countries OneLegal or more problems problems tend to co-occur; many more than 4 problems). People with lower (63%) had to deal with one or more like Uganda and Mali in Africa, but also Kenyans report more than one legal socio-economic status tend to experience legal problems in the past four years. in Indonesia. For comparison, in more problem. Our study shows that on multiple legal problems more often. Compared to studies in other countries, economically developed countries average, those who report a legal problem Among those with no formal education a prevalence of 63% is somewhat at the we see significantly more consumer tend to experience 1.50 problems during the number is 1.77 and one out of four of higher end of the scale. In neighbouring problems, and disputes around social a four-year period. We find that 22% them encounter two or more problems; Uganda, we found that 88% of the benefits and the provision of public of the respondents who encounter a for the lowest-income group it is 1.86 and Number of legal problems citizens encountered one or more legal services. problem report two or more problems,per respondant as one out of three of them encounter two problems for the same time period. illustrated in the graph below (4% report or more problems. This means that almost 20 million Kenyans found themselves in need of 78% a fair and just process for problems such as crimes, land disputes, family disagreements, employment problems, Ukraine 54% Number of legal problems etc. This pattern of problems is very

Tunisia 41%

Mali 30% KENYA 63% 11% INTERNATIONAL PERSPECTIVE. 5% Prevalence rate in other Uganda 88% 2% countries: One problem Two problems Three problems Four problems 28 JUSTICE NEEDS IN KENYA - 2017 29

LEGAL PROBLEMS IN KENYA

2 Age and legal problems

Education is another factor affecting the experience with legal problems. Those with a higher level of formal education are more likely to report an experience with legal problems. However, people with a lower formal education level, when Age and legal problems experiencing problems, tend to report more legal problems. Those with no formal education report on average 1.77 legal problems, whereas individuals from the group with the highest level of 74% formal education report 1.52 problems. 70% 65% Perceived wealth has a similar effect on the prevalence of legal problems. People who see themselves as wealthy are more likely to report a legal problem than the rest of the respon- 44% dents. As with education, however, we find that co-occurrence of problems is more common for the lowest income group, with an average of 1.86 problems. For the highest income group this Education level and legal problems figure is 1.45. Youth Young adulthood Middle adulthood Old age 18-24 25-39 40-64 65+ Education level and legal problems Neither gender nor rural/urban status Approximately 74% of the respondents has an influence on how many problems from this category say that in the last 75% people encounter. Age, however, plays a four years they had to deal with one or significant role in the experience of legal more legal problems. Senior Kenyans 62% problems. In general, younger people (65+) report slightly less experience with 61% 60% report fewer legal problems, which is legal problems than the middle adulthood consistent with our findings in Uganda group, but still encounter more problems and Tunisia. The prevalence of legal than those from the youth and young problems increases with age, reaching adulthood categories. a peak in middle adulthood (40-64).

High Medium Low None 30 JUSTICE NEEDS IN KENYA - 2017 31

LEGAL PROBLEMS IN KENYA

Categories of problems Categories of proCategoriesblems of problem

Crime 21%

Land problems 17% Of the people who report one or more legal problems, Family 15% 21% say that they had to deal with crime, 17% with land related disputes and 15% with family legal problems. Employment 12% Legal problems around employment, money and disputes with neighbours are less prevalent but still affect many Neighbours 11% Kenyans and demand fair resolution. Money 11%

Accidents 7% Public services 6% Obtaining ID 5%

Consumer problem 5% Children 5% Housing/Rented Property Tenant problems 4% Business related problems 3% Social welfare 3% Housing/Property problems 2%

Housing/Rented Property/ 2% Owners problems

0 5 10 15 20 25 32 JUSTICE NEEDS IN KENYA - 2017 33

Legal problem categories by gender Legal problem categories by gender

23% Family 9% Crime 20% Kenyan men and women experience slightly 22% different legal problems. Women tend to 14% Land problems 20% encounter more family problems. Of all women 13% who reported one or more legal problems, 23% Neighbours 10% say that they had to deal with a serious and 12% impactful family dispute, while only 9% of men Money 10% report this. Unsurprisingly, women face more 11% legal problems related to children. Disputes with Employment 13% neighbours is another category in which women 7% are more likely to need a justice process. Children 3% 6% Kenyan men, on the other hand, experience Accidents 8% legal problems related to crime (as victims), land 5% disputes, public services, accidents, employment, Consumer problem 5% and obtaining ID documents more often than Obtaining ID 5% women. This gender difference clearly shows that 6% men and women need protection from the law for Housing/Rented property/ 4% different situations. Later in this report we will Tenant problems 3% provide deeper insight into how this difference 4% affects the justice journeys that men and women Public services 7% embark upon to resolve their legal problems. 3% Business related problems 4%

3% Social welfare 3% 2% Housing/Property problems 2% FEMALE Female Housing/Rented property/ 1% MALE Male Owner problems 2% 34 JUSTICE NEEDS IN KENYA - 2017 35

LEGAL PROBLEMS IN KENYA

Legal problems and age Legal problems and age

4% 14% Different age groups also encounter Land problems 29% 33% different types of legal problems. Senior citizens (65+) are ten times more likely 24% Crime 23% to report experience of a land problem 18% 12% than people in their early 20s. Predictably, land disputes occur twice as often in rural 11% Family 17% areas than in urban areas. With age, we 13% also observe an increased risk of being 9% involved in disputes with neighbours. 11% 11% Younger Kenyans significantly more often Neighbours 12% 16% report being the victim of crime and problems with obtaining ID documents. 12% Employment 14% Young adults (25-39) experience elevated 10% risk of finding themselves involved in 4% crimes, family disputes or employment 13% disagreements. Money 12% 9% 12% 6% Public services 6% 5% 3% 20% Obtaining ID 3% 2% 3%

Youth Young adulthood Middle adulthood Old age

Youth Young adulthood Middle adulthood Old age 36 JUSTICE NEEDS IN KENYA - 2017 37

LEGAL PROBLEMS IN KENYA

Level of formal education also affects with a lower level of formal education experience of specific types of legal experience significantly more of these problem. Almost a third of those who legal problems. have no formal education say that they People with a higher level of formal had to deal with a land dispute in the past education find themselves involved in four years. Experience with land disputes employment disagreements more often. significantly decreases for people with Individuals with a higher level of formal a higher level of formal education. A education are also more likely to report similar trend is visible for the category various legal problems related to housing. of family and neighbour disputes; those Legal problems and education Legal problems and education

33% 17% Land problems 16% 16% 22% 17% Family 13% 11% 17% 21% Crime 26% 19% 17% 12% Neighbours 10% 7% 11% 4% Children 4% 3% 9% Accidents 7% 7% 7% 6% 11% Employment 14% 15% 5% 6% Public services 5% 8% None 2% Housing/Rented property/ 2% Low 5% Tenant problems 7% Medium High None Low Medium High 38 JUSTICE NEEDS IN KENYA - 2017 39

LEGAL PROBLEMS IN KENYA 2 Most prevalent problems Most prevalent individual legal problems

Most serious Theft 8% Disputes with neighbours over boundaries, legal problem rights of way or access to property 5%

Violent crime (murder, rape, bodily injury) 4%

Domestic violence 4% When people reported to have experienced more than one legal problem in the past four years, we asked them Lending money 4% to identify the most serious one. Among the most serious problems,Most crime, serious land problems legal and problems family disagreements Trafﬁc accident 4% rank highest. The most prevalent and most serious problems largely coincide. Ownership/use of land 3%

Being asked to pay bribe for an ID doc 3%

Land grabbing (land taken by powerful 3% 0 Crime 19% corporations or individuals) Land problems 15% Disputes over land title 3%

Family 13%

Employment 10% Individual legal problems The analysis above looks at legal The second most prevalent legal Money 8% problems in categories. For instance, problem is land disagreement between the land category consists of six neighbours over real estate boundaries, Neighbours 8% specific problems covering various right of way and access to property. Accidents 6% types of disputes and disagreements. One in twenty serious legal problems In the graph below, we show the most in Kenya belong to this category. Public services 4% prevalent individual legal problems. Ominously, violent crime and domestic violence are the third and fourth most Property crime is the most frequently frequently occurring legal problems in Obtaining ID 4% occurring legal problem; 8% of all legal the daily lives of Kenyan people. problems perceived as most serious are Children 3% thefts, burglaries and robberies. 40 JUSTICE NEEDS IN KENYA - 2017 41

Consequences of legal problems There are visible gender differences: Kenyan women are significantly more likely to report experience of domestic violence than men. Women also report property crime and violent crime more often. This shows a picture in which Kenyan women significantly more often A majority of Kenyans report extreme Men report more loss of time and income need the law to protect their personal stress or mental health problems than women, while women report more integrity. as a result of encountering a justice stress and problems with relationships Men, on the other hand, say more problem. Also prevalent are losses of than men. frequently that their legal problems time and income, and problems with are related to arguing with neighbours relationships. Consequences of legal problems about land, disagreements over land titles, cattle raiding, traffic accidents and lending money. Extreme stress or mental health problems 54%

Loss of time 46%

Loss of income 28%

Problem with relationships 27%

The Kenyan women Personal injuries 20% significantly more often Violence against you 16% need the law to protect their personal integrity. Physical health problems 14% Other 13%

Loss of job 13%

Violence against your family members 10% 42 JUSTICE NEEDS IN KENYA - 2017 43

LEGAL PROBLEMS IN KENYA

2 Other party in dispute

Kenyans report that their legal problems reported severe effects more often than Strangers, neighbours, and family Conflicts with public authorities also severely affected their lives. 84% of respondents at other income levels. members are the most common other rank high in the chart. This relates to people who experienced a problem were The same pattern is repeated if we look parties in disputes, which mirrors the people experiencing problems related affected at least to a large extent. There at formal education levels, where the composition of the most prevalent to public services and obtaining an ID, are no differences between the way severity of the impact decreases as formal problems experienced in Kenya. but also crime. men and women are affected by their education level increases. problems. Low-income respondents

Impact of problems With whom did you have aOther problem party? dispute Impact of problems

47% 28%

20% 18% 37% 17% 16%

11% A stranger Neighbour Family Public authority/ Employer Other 3% 1% members State institution The other category includes; private company, friend, colleague, council of elders, do not want to Affected me to Affected me Affected me to Affected me Did not affect a very large to a large a moderate small answer,The other and category other. includes; All of private them company, have less friend, than colleague, 7% ofcouncil the of responses. elders, do not Percentages want to answer, and add up to more extent to a extent me at all extent extent thanother. 100% All of themdue have to the less thanpossibility 7% of the of responses. selecting Percentages multiple add responses. up to more than 100% due to the possibility of selecting multiple responses. 44 JUSTICE NEEDS IN KENYA - 2017 3 Legal Information and Advice

Access to legal information and advice Formal and informal sources Reasons for not seeking information Most helpful sources of legal information and advice LEGAL INFORMATION & ADVICE

3 Introduction

In this chapter we discuss where people go to find information and advice when they are faced with a legal problem. Knowing whom people turn to provides an important insight into their resolution strategies. Moreover, it is also critical to know why certain respondents choose not to look for information and advice. The chapter starts by looking at whether or not respondents look for information and advice and if they do, where they go and which source is most helpful. Respondents that do not look for information and advice are asked what prevented them from doing so. Lastly we look at which public sources of information are used. 48 JUSTICE NEEDS IN KENYA - 2017 49

LEGAL INFORMATION & ADVICE

3 Access to legal information and advice There are no significant differences in Respondents who experienced problems the likelihood of seeking information with land, family, property, and social and advice between residents of rural welfare are more likely to search for and urban areas or men and women. information and advice (more than However, when looking at different age 80%). In the case of crime, the most groups, individuals in the youth category serious problem in Kenya, 75% percent Finding relevant information and advice Kenyans are more active in (18-24) are less likely to seek information of respondents indicate having sought about the legal problem at hand is often and advice (65%), while those in middle information and advice. the first step in resolving it. The data seeking information and adulthood (40-64) are more likely to do shows that seven out of ten Kenyans For problems related to public services, legal advice than people in so (80%). Furthermore, the respondent’s who encountered a legal problem sought consumer problems, and obtaining an Uganda and Tunisia level of formal education and wealth some sort of information and advice. This ID, respondents are less likely to seek status are positively related to the indicates that a strong majority actually information and advice. Respondents likelihood of seeking information and looks for information and advice, while a who encounter problems related to public advice. Simply put, respondents with a minority does not. services are more unlikely to do so, with higher level of formal education and/or only 42% indicating they searched for a higher level of wealth are more likely to information and advice. seek information and advice. Have you sought information or advice to resolve the legal problem?

Looking for information and advice compared 25% Yes Kenya 75% 25% No

Uganda 65% 35% 75%

Yes Tunisia 59% 41% No 50 JUSTICE NEEDS IN KENYA - 2017 51

LEGAL INFORMATION & ADVICE

Informal sources There is also a distinct difference areas are more likely to go to informal between residents of urban and rural sources in the first place: 61%, while for areas. Respondents from urban parts urban respondents this figure is 51%. of the country are more likely to go to colleagues, while respondents from rural areas rely more on clan leaders and elders. Moreover, respondents from rural

Six out of ten respondents sought The most frequent strategy for seeking information and advice from an informal information from informal sources is source to resolve their most serious legal to go to a family member or friend. A Which informal source provided legal hich informal source provided legal information and advice problem. This is illustrated in the graph close personal connection is thus an W ? below (note: the question allows for important part of asking someone for information and advice? multiple answers so the total in the graph information and advice. For problems adds up to over 100 percent). relating to land and family almost 80% of Didn't go to informal source 41% the respondents looked for an informal In comparative terms, Kenyans rely on source, while for public service related informal sources of information and 26% problems, only 28% did so. Family members advice less than Ugandans; eight out of ten Ugandans declared to have Age also plays a role in which source Friends 23% consulted informal sources. Regarding the respondents prefer to use. Older preferred sources, both samples signal respondents are less likely to rely on family members and friends as the most friends, but more likely to rely on clan Elders 12% frequently contacted source. This appears leaders. Respondents in the youth to be a very common trend; family and category are less likely to use traditional Colleagues 10% friends are also the top informal sources of sources of information, such as clan information and advice in Tunisia, Ukraine leaders and elders, and instead prefer to and many other countries. go directly to friends or family. Clan leaders 9% For both formal education levels Neighbours 9% and wealth levels, a similar pattern is observed. Respondents with a higher level of formal education and/or Other 8% perceived wealth status are more likely to go to friends and colleagues, while they The other category includes: Other, church leaders, and cultural leaders. Each category accounts 6 out of 10 Kenyans are less likely to go to clan leaders and for less than 5%. The other category includes: Other, church leaders, and cultural leaders. Each category have consulted informal elders. accounts for less than 5%. sources 52 JUSTICE NEEDS IN KENYA - 2017 53

LEGAL INFORMATION & ADVICE

3 As with informal sources of information, a higher level of formal education, 73% both formal education level and wealth look for information and advice from an level have a major influence on where institutional source, and for those with respondents seek information. A higher a high perceived wealth status, 78% Institutional sources of level of formal education and/or perceived choose to do so. Compared to the overall wealth status is strongly related to average of 55%, this is quite a substantial going to a court, the police or a lawyer. difference. legal information and Respondents with a lower level of formal We find that urban respondents are education or perceived wealth status are somewhat more likely than rural ones to more likely to go to the chief. Moreover, advice go to the court of law, police, or a lawyer. both of these characteristics also strongly Rural respondents are, however, more influence whether or not someone will likely than their urban counterparts to go go to a formal source of information in to the chief. the first place. Among respondents with As with informal sources of legal respondents are more likely to go to the information and advice, just over half court of law, the police, a lawyer or the Professional sources of legal informa- Institutional sources of legal information and advice of the respondents indicate having chief. Interestingly, young respondents tion and advice searched for information and advice from are more likely than older respondents to institutional sources. Police and chiefs go to an administrative tribunal. are the most popular sources, while Kadhi Didn’t go to professional source 45% courts, employers, central government organisations, and NGOs are the least popular (each scoring less than 2%). Chief 24% For problems related to land and accidents, respondents are most likely to go to institutional sources (more Police 19% than 70%). Institutional sources of legal advice are least used in the following areas: public services, obtaining an ID, International perspective Court of law 11% employment, money, and consumer Kenyans rely less on institutional problems. When dealing with crime, 44% sources of legal information and of the respondents go to the police. advice than Ugandans. In Uganda, Lawyer 8% Age plays a factor in the decision to use 66% of people consult institutional institutional sources of information, with sources, whereas in Kenya, just 55% younger respondents being far less likely do so. Other 13% to do so. In fact, 65% of the respondents in the youth category indicate they did not use any institutional source. Older The other category includes: Other, county government, administrative tribunal, Kadhi court, employer, central government organisation, and NGO. Each category0 accounts10 for less than20 5%. 30 40 50 The other category includes: Other, county government, administrative tribunal, Kadhi court, employer, central government organisation, and NGO. Each category accounts for less than 5%. 54 JUSTICE NEEDS IN KENYA - 2017 55

LEGAL INFORMATION & ADVICE

Most helpful sources of Chief 19% Family legal information and 15% members advice

Most helpful sources of legal informa- Most helpfultion sour andces ofadvice legal information and advice Overall, 54% of the respondents opt for • Family members are the most helpful an institutional source of information as source for family related problems. the most helpful (chief, police, courts, • The police and the chief are most helpful Chief 19% and lawyers), while 41% choose an for crime related issues. informal source (mainly family members • Friends and family members are and friends). considered to be the most helpful Family members 15% information and advice sources when it comes to money related problems. Police 13% When looking at the six most prevalent problems and the most helpful sources of information and advice, some patterns Friends 10% can be distinguished: • For land related problems people prefer Court of law 8% to go to the chief or to a court. • For neighbour related problems the chief is the most helpful source, while he/she Lawyer 7% also plays an important role in family, crime and money related problems. • For employment related problems the Other 30% most helpful source are colleagues.

The other category includes: Other, colleagues, elders, neighbours, clan leaders, assistant chief, administrative tribunal,The othercounty categorygovernment, includes: none of the Other, above, colleagues, Kadhi court, church elders, leaders, neighbours, cultural leaders, clan leaders,employer, administrativecentral governmenttribunal, organisation, county government, and NGO. Each none individual of the category above, accounts Kadhi for court, less than church 5%. leaders, cultural leaders, employer, central government organisation, and NGO. Eachl category accounts for less than 5%. 56 JUSTICE NEEDS IN KENYA - 2017 57

LEGAL INFORMATION & ADVICE

3 Barriers to legal information and advice The most frequently cited reasons for indicating a clear sense of hopelessness not seeking any information and advice among this group. For land related are that respondents either did not problems the most common barrier is not believe that doing so would amount to being able to afford legal advice. anything or were unsure how to obtain These figures provide an indication where such information and advice. As discussed above, 25% of the investment in the provision of legal respondents did not seek legal For problems related to crime, over 45% information and advice might be made to did not look information and advice from any source. 25% of the respondents indicate that they increase legal empowerment. Respondents were asked to clarify why for legal information did not believe anything could be done, they chose to do so. Barriersand advice

Didn't think anything could be done 31%

Didn't believe advice would help me 21%

Wasn't aware of opportunities for assistance 17%

Didn't know how to receive assistance 15%

Couldn't afford to pay for advice 11%

Didn't need advice 10%

Wanted advice, couldn't obtain it 8%

Didn't have time to look for advice 8%

Other 14%

TheThe other other category category includes: includes: Other,the Other,the person in aperson position in to a help position me was to difficult help meto reach, was thedifﬁcult problem to wasn’t reach, the problem wasn’t important, and don’t know. important, Each category and don’t accounts know. Each for individual less than category 5%. accounts for less than 5%. 58 JUSTICE NEEDS IN KENYA - 2017 59

LEGAL INFORMATION & ADVICE

3 Legal information from Conclusion electronic and printed sources

Respondents were also asked whether sources of information to inform Looking for legal information and differ with age category, level of formal they sought information from public themselves about their legal problems. advice is quite common in Kenya, with education, perceived wealth status and sources, such as radio, TV, newspapers, The most popular source is the internet, seven out of ten respondents doing the type of problem. Generally speaking, web pages etc. These channels of legal but still only 4% of the respondents so. This is more than in other countries people with a higher level of formal information usually do not require indicate having used it. In fact, half of we have studied. Family and friends are education and/or perceived wealth status personal interaction as they disburse more the respondents claim they did not the most commonly used and the most are more likely to look for information and general information about the options for need public sources of information and helpful informal sources of information. advice and turn to institutional sources, resolving a problem. approximately one third did not even For institutional sources of information, such as lawyers, more often. On the know where to look. respondents turn most often to the other end of this spectrum (lower level Apparently very few peoplePublic use public sources of information police and the chief. In general, the of formal education and lower perceived institutional providers are more popular wealth), people tend to turn to more among the respondents than informal traditional sources of information, such Didn't need information 47% sources. The biggest barriers to seeking as the chief. information and advice are either the Didn't know where to look 31% Public sources of information are typically assessment that looking would not not utilized in the search for legal amount to anything or insecurity about Internet 4% information and advice. Around 80% of how to obtain information and advice. the respondents indicate not using any Radio 3% The information sources tends to public source of information. Brochures 2%

Newspapers 2%

Books 2%

TV 1%

Other 13%

The other category includes: Other and don’t know. 60 JUSTICE NEEDS IN KENYA - 2017 4 Dispute Resolution

Problem solving strategies Self-help strategies Social network Dispute resolution forums Most helpful source for dispute resolution Costs and quality of access to justice 62 JUSTICE NEEDS IN KENYA - 2017 63

Introduction Own actions

Have you taken any action to resolve the ave you taken any action to As discussed in the previous chapter, H Here we investigate what actions respondents problem?resolve the problem seeking information and advice is often ? take to resolve their most pressing legal needs. the first step in a justice journey. However, We focus on three different approaches: trying to the next step is even more crucial: resolve the problem with own actions, contacting taking some sort of action to resolve the NO a non-institutional third party, and contacting an 19% problem. As highlighted by the graph institutional third party. Besides revealing what below, 81% of the respondents make a specific actions people take, we analyse how help- move to resolve their legal problem. This is ful they are, which barriers users encounter and Yes the highest percentage among countries whether or not taking action has actually helped No we have studied and it indicates a high to resolve the problem at hand. YES level of legal empowerment. 81% • Respondents are most likely to take action when faced with land or housing related problems, with over 90% taking action on these issues. • Respondents are least likely to take action when faced with matters related to employment (72%), obtaining ID documents (66%) and public services (56%). Ukraine 56% • Younger people are less likely to take action, whereas individuals with a higher level of formal education and/or Tunisia 72% perceived wealth status are more likely to take action. Yemen 73%

Uganda 62% INTERNATIONAL PERSPECTIVE. Taking action to solve disputes KENYA 81% in comparative perspective

DISPUTE RESOLUTION

Own actions

When reviewing which self-actions the most common way of doing this. For problems related to land, housing, respondents take, we find that 64% The question (Did you take any action family, neighbours, consumer problems, took self-action to solve their problems. yourself?) allows for multiple answers, and money, taking some sort of action Contacting the other party directly or unless the respondent did not take any yourself is a very common strategy. Over via a friend, neighbour or colleague is action his or herself. Hence, respondents 70% of the respondents act themselves can take multiple actions and the total in when faced with these problems. the graph adds up to over 100 percent. However, taking action yourself is less popular for problems related to public Which actions did you take yourself? services, crime, accidents, and obtaining ID documents (only roughly 50% take Which actions did you take yourself? action themselves in these areas). Age plays a role in determining whether or not to take action yourself, with older respondents being more likely Independently contacted the other party 37% to do so. This is particularly true for contacting the other party yourself; Didn't take action myself 36% over 40% of the older respondents take this approach, while only 26% of the Contacted the other party via friend/ youngest respondents opts for this form neighbour/colleague 18% of action. Furthermore, respondents with a higher level of formal education and/or perceived wealth status are more Took other action myself 14% likely to take action themselves and pursue multiple paths along this route. Contacted the other party via relative 9% 66 JUSTICE NEEDS IN KENYA - 2017 67

DISPUTE RESOLUTION

Non-institutional Respondents are most likely to attempt to resolve the problem through a non-in- dispute resolution stitutional third party when faced with problems related to land and family, with mechanisms almost 70% of the respondents taking this kind of action. At the other end of the spectrum we find respondents less People can also attempt to resolve their popular non-institutional third parties. likely to pursue this kind of action when legal problem through a non-institutional The question (Did you try to solve the faced with public service, accident, and third party. The graph below illustrates problem through a non-institutional business related problems. Other notable that this is not a very popular dispute third party?) allows for multiple answers, observations are that i) land problems are resolution strategy: 52% indicated they unless the respondent did not go to any often handled by family members, church did not use this approach. For those who such third party. Hence, respondents can leaders or elders and ii) family related do opt for this strategy, family members, take multiple actions and the total in the problems are often handled by family friends, and church leaders are the most graph adds up to over 100 percent. members. Did you try to solve the problem through a We also find that younger respondents Did you try to solve the problem rely more on friends, while older respon- throughnon-professional a non-institutional third third party? party? dents are more likely to go to elders or church leaders. As before, formal education level and wealth status also play a Didn't go to a non-professional 52% role. The likelihood of engaging a non-institutional dispute resolution mechanisms Family members 19% is not affected by formal education level or wealth status, but these characteristics Friends 16% do affect the party that people decide to consult. Those with a higher level of Church leaders 10% formal education and/or a higher level of Cultural leaders 7% perceived wealth are more likely to rely on their friends, colleagues, and family Elders 7% members. For respondents with a lower level of formal education and/or wealth Colleagues 7% status, elders and church leaders are the more popular choice. Other 6%

The category “other” includes: Other, neighbours, and clan leaders. Each individual category accounts for less than 5%.

The category “other” includes: Other, neighbours, and clan leaders. Each individual category accounts for less than 5%. 68 JUSTICE NEEDS IN KENYA - 2017 69

DISPUTE RESOLUTION

4 49%

Institutional Did not go to an institutional dispute resolution third party mechanisms

50% of the people use non-institutional • People in middle adulthood are most dispute resolution mechanisms, likely to use an institutional third party ranging from chiefs to courts. The most (over 60%). However, respondents in id you try to solve the Didproblem you try to solve the problem through a frequently used institutional third parties the youth category only opt for this D through an institutional third party are the police and the chief. The question option 30% of the time. professional ? third party? (Did you try to solve the problem through • People with a higher level of formal an institutional third party?) allows for education and/or perceived multiple answers, unless the respondent wealth status are more likely to use Didn't go to a professional third party 49% did not go to any institutional third party. institutional third parties. They mostly Hence, respondents can take multiple rely on the court of law, the police, and actions and the total in the graph adds lawyers, while those with a lower level Chief 22% up to over 100 percent. of formal education and/or wealth status are more likely to turn to the Institutional third parties are used chief. 18% particularly for land problems, with 80% Police The chief is two times more popular in of the people using them. The chief is • rural areas (28%) than in urban areas used 52% of the time and the court in Court of law 10% (14%). On the other hand, the court of 25% of land cases. Other interesting law, the police, and lawyers are more observations are the use of lawyers frequently used by urban respondents for property and social welfare related Lawyer 7% than rural respondents. problems and the use of the police (41%) for crime related issues. People are least Other 12% likely to rely on institution third parties when faced with employment, public service, consumer, or ID document related problems. The category “other” includes: Elders, clan leaders, assistant-chief, neighbours, contact other party via relative, colleagues, administrative tribunal, county government, Kadhi court, church leaders, otherThe other (non-institutional), category includes: employer, Other, county cultural government, leaders, central administrative government tribunal, organisation, Kadhi court, employer, central and NGO.government Each individual organisation, category and accounts NGO. Eachfor less category than 3%. accounts for less than 5%. 70 JUSTICE NEEDS IN KENYA - 2017 71

DISPUTE RESOLUTION

Which process helped the most to Most helpful way to resolve the problem?

resolve the legal % problem Chief 17% Independently contact other party 14% Police 12% As discussed above, respondents are The chief is perceived as the most helpful capable of following multiple paths to in resolving a legal problem. Notable Court 11% resolve their legal problems. The graph exception is the perceived helpfulness of Family members 8% below highlights which particular process the police in crime related issues (36%). is considered to be most helpful in Took other actions myself 6% Younger respondents have a preference resolving the issue at hand. Friends 5% for directly contacting the other party or relying on friends and family members. Other (institutional) 4% Respondents with a higher formal education level and/or higher wealth Contact other party via friend/ 4% neighbour/colleague International perspective status seem to favor courts and lawyers, while those with a lower formal education Lawyer 4% The most helpful processes to solve level and/or lower wealth status tend to Other 18% legal problems are very similar to go to the chief. Uganda. The top five there included: The biggest difference between urban The Local Council Court (19%); and rural respondents is found in the the police (17%); independently The other category includes: Elders, clan leaders, assistant- helpfulness of the courts and the chief, neighbours, contact other party via relative, colleagues, contacting the other party (9%); chiefs. Courts are more popular dispute administrative tribunal, county government, Kadhi court, family members (8%); and Courts of resolution strategies in urban areas and church leaders, other(non-institutional), employer, cultural leaders, central government organisation, and NGO. Each Law (5%). the chiefs are preferred in rural areas. individual category accounts for less than 3%. 72 JUSTICE NEEDS IN KENYA - 2017 73

DISPUTE RESOLUTION 4 What were the most important reasons for What were the most important reasons for not takingnot taking any action any? action? Barriers to resolving Did not believe a positive result legal problems would be achieved 33% Other party was more powerful 20% Didn't know what to do 19% Judicial system is not effective 14% As seen in the first section of this chapter, one in five Afraid of aggravating the relationship 14% respondents did not take any kind of action. When asked to identify which barriers they were facing, Didn't have enough money 11% the most important reason was the belief that taking Problem wasn't serious enough 8% action was not going to help. This was the strongest reason for those that face a land or crime related Didn't have enough time 8% problem. The question allows for multiple answers, Expected problem to resolve itself 7% hence respondents can indicate multiple reasons and the total in the graph adds up to over 100 percent. Was afraid of reprisal 6% Tradition/customs did not allow me to 6% Resolved Other 18% After taking action, one would expect a problem to move forward and come to some sort of resolution. The category “other” includes: Other, didn’t need legal advice, problem was solved amicably, had to travel long distances, other We find that, for respondents who took action, 46% party was right, refuse to asnwer, and Hasdon’t yourknow, problemEach individual been category resolved? accounts for less than 5%. of the problems have been resolved either partially or Has your problem been resolved? fully. One in four respondents are still in the process of attempting to resolve the issue and the same number of respondents have given up on resolving their problem altogether. Additionally, at 70%, the oldest category of respondents indicate that their 28% problem has not been resolved more often than 36% Yes, completely their younger counterparts. Taking action is thus by Yes, partially no means a way of resolving a legal problem, with No, on-going and still in process of being resolved approximately only 1 in 2 problems finding partial or No, no longer taking any action to resolve it complete resolution. 26% 10% 74 JUSTICE NEEDS IN KENYA - 2017 75

DISPUTE RESOLUTION

4 Costs and quality of justice journeys Evaluation of justice journeys in Kenya and Uganda

Respondents who used one or more Kenya dispute resolution strategies were also Uganda asked to evaluate the cost and quality of their justice journeys. On eight out Voice and of ten dimensions the scores are very neutrality positive. All of these dimensions are Stress and rated with an above average score. emotions Respect However, when it comes to the amount SOLVED: of stress and emotions experienced by for 6.2 to 6.8 million people the respondents, the results are very negative. NOT SOLVED: Time spent Procedural for 7.1 to 7.8 million people clarity International perspective Kenya outperforms Uganda in 1 2 3 4 5 the procedural aspects of dispute resolution. Outcomes are rated Money spent Fair similarly in both countries. The distribution costs of justice, however, especially the time spent and the stress of Problem resolution in the procedure, are rated worse by the Kenyan population than by the numbers Outcome Damage Ugandan population. explanation restoration Problem resolution 76 JUSTICE NEEDS IN KENYA - 2017 77

DISPUTE RESOLUTION

4 Different approaches Institutional justice journeys

The graph highlights the justice journeys It is worth looking at the institutional of people based on the approach they mechanisms for dispute resolution in deemed most helpful. It is clear that more detail. The way Wanjiku understands both institutional and non-institutional the formal legal system is very different dispute resolution strategies score very from how she understands the informal similarly on the quality of the procedure system. According to the local experts, and the quality of the outcome. Taking Wanjiku does not speak the language own actions is rated less favourably on of the formal system and is thus drawn these two dimensions. towards informal dispute resolution mechanisms. In this light, we investigate The costs of justice are rated quite the justice journeys of the people who differently, with own action and non- use the most frequently used institutional institutional justice journeys rating justice journeys, namely chiefs, police, higher than institutional paths. When courts and lawyers. relying on institutional dispute resolution mechanisms, people find that the monetary costs and time requirements are steeper than for the other two paths. Stress and emotions are the exception here; they are rated very poorly regardless of which approach people use. Clearly, this indicator shows that there is substantial potential for improving the justice journeys in Kenya. This is directly related to the local and international experts’ view that justice processes should be humanized and psychological approaches should be incorporated into the delivery of justice. 78 JUSTICE NEEDS IN KENYA - 2017 79

Conclusion

When it comes to taking action to re- dents with higher level of formal edu- solve their legal problems, Kenyans are cation, higher perceived wealth status proactive. Eight out of ten respondents and/or living in urban areas. The chief, choosing to take some form of action on the other hand, is mostly engaged in to achieve a fair resolution to their legal dispute resolution by those with lower problems. Taking own action by the con- level of formal education, perceived cerned individual is the most frequently wealth and/or living in rural areas adopted resolution strategy. Non-insti- Age is also an important factor in de- tutional or institutional third parties are termining a course of action. Younger used less often. Contacting the chief is respondents are less likely to take ac- considered the most helpful strategy for tion to resolve their problems and also dispute resolution, followed by contacting rely less on institutional third parties. the other party directly and going to the Here we see that the chiefs consistently The police are scored less favourably This could be related to the fact that police. Note that while many people take score well on the different aspects of the on the indicators related to procedure, they are also less likely to seek infor- action themselves, they generally consider justice journey. They provide affordable making for a justice journey where mation and advice, as discussed in the institutional third parties very helpful. justice in an efficient manner, which is people feel less heard and respected. previous chapter. rated highly in terms of the quality of both Overall the spider web illustrates why Filing a claim in a court or informing police the procedure and the outcome. Lawyers people in Kenya continue to rely on are particularly popular among respon- and courts are also seen as performing informal justice, as it provides a viable quite well, but from the costs dimensions it path to justice that is easily accessible quickly becomes clear that many Kenyans and considered fair. A way forward have difficulties with affording their could be to further empower the chiefs processes and services. This suggests that to deliver justice to their communities. creating more expedient court procedures All of these findings are in line with the and finding ways to reduce the costs of recommendation from the local experts going to court and retaining a lawyer is one to invest in the dispute resolution way of making the formal legal system more capacity of chiefs and assistant chiefs. attractive to Kenyan citizens. 80 JUSTICE NEEDS IN KENYA - 2017 81

Let’s follow Tom’s justice journey

Using our data, we developed the fictitious story of Tom to illustrate the average justice journey in Kenya. In this way, we bring the data to life.

Tom is a 34-year-old man who lives in rural Kenya. He is a lower educated middle class citizen, happily married and has two children. However, Tom does not feel very safe in his neighbourhood, particularly after dark. This is related to an event that occurred about a year ago; Tom was robbed while on his way home from work. The assailant stole his bag, containing his wallet and phone, causing high levels of stress and even some physical injuries. However, Tom decided that he should not stay passive after the incident and started to look for information and advice on how best to resolve his problem: he wanted to know who robbed him, see them punished, and receive fair compensation for his damages. He asked his friends and family on how to achieve this, in the end turning to the police for help. In fact, it turned out that the police were very cooperative and Tom was satisfied to a large extent by the support provided. They advised him that if he provided a statement they could start an investigation. They also told him that the prosecutor could then bring a case on his behalf. After this, Tom decided that he would make that statement. He went to the police and the chief for this, rather than trying to resolve the problem himself or relying on his social network. In Tom’s situation, local police and chiefs were the most useful channels for problem resolution. However, despite his proactive approach towards the problem, he was not able to obtain just resolution to his problem; the robber got away with the crime and Tom was left feeling dissatisfied with his incomplete justice journey. 82 JUSTICE NEEDS IN KENYA - 2017 5 Trust in Institutions and Legal Empowerment

Trust in justice institutions Subjective legal empowerment 84 JUSTICE NEEDS IN KENYA - 2017 85

TRUST IN INSTITUTIONS AND LEGAL EMPOWERMENT

5 Trust in legal institutions

In order to assess and improve people’s they have access to the courts or the In order to assess how much trust the justice journeys, it is important to possibility of receiving advice from people of Kenya have in the justice evaluate to what degree they put lawyers. In addition, we ask them to system, we asked them to rate their trust in the local justice institutions. In evaluate the outcomes of hypothetical trust in different institutions on a scale addition, we analyse to what degree judicial problem scenarios. Our analysis from 1 to 5. The respondents expressed the respondents feel empowered identifies bright spots of the system and the highest amount of trust for non- to deal with legal problems. We ask points towards areas where improvement governmental legal aid institutions as well them whether they feel that they through innovation is possible. as local traditional justice mechanisms. can rely on the justice system and if Trust in public sector institutions, such as courts, the government, and especially the police, is significantly lower. Trust in different legalTrust institutions in different legal institutions Agree strongly

Agree Courts 12% 16% 22% 33% 17% Higher trust among educated & Neither agree nor disagreewealthier respondents Local traditional justice 5% 12% 26% 35% 21% mechanisms Disagree Police 21% 24% 26% 22% 8% We looked at whether factors such as Disagree strongly age, gender and location, or socio- Lawyers 9% 17% 32% 32% 11% economic factors such as employment level or the financial situation of the Non-governmental legal 3% 10% 30% 38% 19% aid organisation household had an effect on trust. Government 10% 18% 31% 30% 10%

Disagree strongly Disagree Neither agree nor disagree Agree Agree strongly 86 JUSTICE NEEDS IN KENYA - 2017 87

TRUST IN INSTITUTIONS AND LEGAL EMPOWERMENT

Neither gender nor the area where with a lower level of formal education Courts in general protect When the respondents were asked people live affects the average express proportionately more trust in the interests of the rich about whether or not they agreed level of trust in the different justice the local traditional justice mechanisms. and powerful above those with the statement that courts in institutions. It would be misleading to Still, the magnitudes are small and do of others Kenya generally protect the interests make special efforts to increase the not explain the large overall variation in of the rich and powerful above those trust in the justice sector specifically trust between governmental and non- of others, 41% strongly agreed. among rural areas in Kenya. Instead, governmental justice institutions. Strongly agree 41% An additional 27% of respondents policy should be guided by other generally agreed with the statement. Overall, our results suggest to target factors. Agree 27% This result is rather worrisome. The policy towards improving the image wealthiest respondents in our dataset Individuals with a higher level of formal of the police as well as the Kenyan Neither agree nor disagree 19% disagree with the above statement education express proportionately more government. slightly more often than the rest of the trust in courts, whereas respondents Disagree 9% respondents. Strongly disagree 4%

Trust in courts: KenyaTrust an din UCourts:ganda Kenya and Uganda Agree strongly

Agree Courts in Uganda 11% 20% 21% 37% 10% Neither agree nor disagree

Courts in Kenya 11% 16% 22% 33% 17% Disagree 20% 23% 26% 22% 8% Disagree strongly

Disagree strongly Disagree Neither agree nor disagree Agree Agree strongly

10% 18% 30% 10% 88 JUSTICE NEEDS IN KENYA - 2017 89

TRUST IN INSTITUTIONS AND LEGAL EMPOWERMENT Rely on justice to solve Rely on justice to solve problem - Education 5 problem - Education

To a very large extent/ completely No formal education 27% 24% 24% 20% 6% Subjective legal To a large extent To a moderate extent Primary or Secondary education 12% 23% 33% 25% 7% To a small extent empowerment 11% 23% 32% Vocational Training or Diploma 9% 24% 32% 29% 7% To a very small extent/not at all

University or Postgraduate Degree 7% 16% 36% 31% 11% Besides investigating the level of trust, it empowerment, we asked the respondents is important to know whether the Kenyan whether they feel they can rely on the citizens feel legally empowered to deal justice system in general, whether they with their justice needs. Even if trust in have access to lawyers and courts, and the justice institutions is high, it would how they judge the likelihood of getting Much variation in perceived be of no value if the citizens did not have fair solution when presented with a reliability of the justice system access to them or were hesitant to use number of hypothetical legal problem them. To gauge levels of subjective legal situations. There is much variation in how much the respondents feel that they can rely on the Trust in different legal institutions justice system in Kenya. Subjective legal empowerment Roughly one third of the respondents It appears that there is no clear feel that they can rely on it, one third pattern for gender, age or rural/urban has a rather neutral view, and one third residency. However, we observe an Can people like me access a court 12% 25% 33% 24% 7% of law when they have a legal problem? feels that they cannot rely on the justice interesting pattern for varying levels To what extent can people like me receive advice 12% 25% 32% 23% 8% system. of formal education and subjective from a lawyer when they have a problem? financial well-being. Subjective legal We observe the same pattern for Can people like me rely on justice empowerment increases with the 12% 23% 32% 26% 7% the question of whether or not the to resolve problems when it is needed? level of formal education as well as respondents feel that they can rely perceived wealth. This pattern is found on lawyers or courts to resolve their for the perceptions of the reliability problems. To a very large extent/completely of the justice system as well as for the To a large extent In order to investigate where this access to justice institutions. It would variation in subjective legal empowerment therefore be beneficial to specifically To a moderate extent stems from, we again looked for patterns target groups of low-income families To a small extent across demographics and socio-economic as well as individuals with lower levels To a very small extent/not at all status. of formal education when launching programs to improve the population’s legal empowerment. 90 JUSTICE NEEDS IN KENYA - 2017 91

TRUST IN INSTITUTIONS AND LEGAL EMPOWERMENT

Less empowerment when How likely is it that you would get a solution to the folloHoww inglikely pro is itb lemthat? you would get a dealing with public services solution to the following problem?

In order to examine if subjective legal The respondents were asked to assess Neighbours 18% 19% 20% 14% 29% empowerment differs across different how likely it was that they would achieve a Very likely problem categories, we presented our fair solution to the specific problems. Employer 17% 19% 25% 15% 23% respondents with the following six Likely While there is much variation across Consumer 18% 18% 24% 15% 25% theoretical situations: individuals, the respondents are a little Neutral Imagine you had a conflict with 23% 24% 24% 12% 18% • more negative about expecting a fair Public Service a neighbour (villager) who often Unlikely solution when facing conflicts with public causes a significant disturbance to Domestic Violence 20% 19% 24% 16% 22% services. Very unlikely you, for instance by trespassing on Money 19% 18% 23% 14% 25% your land or grazing cattle on your land. • Imagine you had a problem with your employer, for example a conflict over your dismissal. • Imagine you bought a cell phone from a big retailer, and it was defective. • Imagine you had a conflict with the official authority that issues driving licenses (or similar). • Imagine you became a victim of domestic violence (or sexual violence), and were physically hurt by a family member. • Imagine you lent approximately 25,000 Kenyan shillings to a friend, and he refuses to pay it back. 92 JUSTICE NEEDS IN KENYA - 2017 93

TRUST IN INSTITUTIONS AND LEGAL EMPOWERMENT

Trust and empowerment related to past experiences with the legal system

Trust in the Kenyan police sytem Apart from socio-economic background, we observe a clear pattern. Having Do you trust the police? it is important to check if people’s past experienced a problem is associated with experiences with the judicial system are an increased trust in the police. correlated with their current perception Moreover, we also observe that I trust the police 27% 23% 23% 17% 9% of it. subjective legal empowerment is higher Respondents who have not experienced a legal problem In general, having experienced a legal among those respondents who have 11% 16% 22% 33% 17% in the past problem in the past does not affect the experienced a legal problem in the past 20% 23% 26% 22% 8% respondents’ trust in the legal institutions four years. much. When we look specifically at the respondents’ trust in the police, I trust the police 17% 24% 27% 25% 7%

Respondents who have experienced a legal problem 30% 10% in the past

Agree strongly

Agree

Neither agree nor disagree

Disagree

Disagree strongly

Don’t know 94 JUSTICE NEEDS IN KENYA - 2017 95

TRUST IN INSTITUTIONS AND LEGAL EMPOWERMENT

Higher trust among respondents who have experienced legal problems

Trust (and most serious problems) Category % Past experiences with the judicial powerless when they experienced Housing/Property problems 3.49 system are correlated with how problems related to the government, Children 3.49 empowered people feel about the such as obtaining ID documents or Accidents 3.45 justice system. There are many types facing a dispute with public services. of legal problems people face during Trust is also low among those who Family 3.39 their daily lives, some of which are have experienced conflicts related Land problems 3.38 easier to solve than others. Hence, to crime. Recall that when the people might show fairly different respondents were presented with a Housing/Rented Property/ 3.37 levels of trust in the justice system, set of hypothetical justice problems, Tenant problems depending on what type of problem they expected the least favourable Housing/Rented Property/ 3.37 they had to deal with in the past. outcome when facing conflicts with Owners problems public services. Hence, both legal When we compare average trust levels empowerment as well as trust are low Neighbours 3.37 in the Kenyan legal institutions for among Kenyan residents regarding respondents who have experienced Business related problems 3.33 public service issues. different legal problems in the past, Money 3.33 we see that people feel especially Consumer problem 3.28 Social welfare 3.24 Employment 3.18 Obtaining ID 3.16 Crime 3.15 Public services 3.06 96 JUSTICE NEEDS IN KENYA - 2017 97

TRUST IN INSTITUTIONS AND LEGAL EMPOWERMENT

5 Conclusion

Trust is higher in non-public justice in- Similarly, the respondents feel less stitutions than in public justice institu- legally empowered when they are con- tions. fronted with a hypothetical problem regarding conflicts with public services. Trust does not vary by rural/urban residency, gender or age. Respondents with Average trust in the institutions does a higher formal education level tend to not vary much among respondents favour courts compared to respondents who have or have not experienced a with a lower formal education level, and problem. However, trust in the police these people express slightly more trust increases with having experienced in traditional justice mechanisms. problems in the past. People with higher formal education le- Legal empowerment is greater among vels and higher perceived wealth express respondents who have experienced a higher levels of legal empowerment. problem in the past. Trust in the justice system is low among respondents who have experienced problems with the government, such as obtaining ID documents and public services disputes. In addition, it is low among respondents who have money problems. 98 JUSTICE NEEDS IN KENYA - 2017 6 Land Problems

Prevalence Impact Information & Advice Dispute Resolution 100 JUSTICE NEEDS IN KENYA - 2017 101

LAND PROBLEMS

6 Introduction

Land is arguably the most important • People who have not received economic resource for rural inhabitants in formal education are more likely to Sub-Saharan Africa. In Kenya, 40% of the report land problems: more than rural population lives on 5% of the arable a quarter of the legal problems of land, while 3% of the population owns people without formal education are 20% of the land2. It is reported that small land problems. In other education landowners and users live under pressure. groups, the percentage is roughly In Chapter 2 we saw that land problems 14%. are the second most prevalent and Land problems are more prevalent serious category of legal problem that • among rural inhabitants: they people face, only behind crime problems. represent 17% of all their legal Land problems were the most problems, while the proportion is serious legal problem for 15% of the lower in urban areas (9%). respondents. This means that between Socio-economic status does not 2.4 and 2.8 million Kenyans encounter affect the risk of experiencing a land land-related legal problems. problem considerably. • Men are more likely to experience land problems compared to women: 18% of all men who experienced one or more legal problems experienced a land problem; for women that is 11%.

2 Jayne, T. S., & Muyanga, M. (2012). Land constraints in Kenya’s densely populated rural areas: implications for food policy and institutional reform. Food Security, 4 (3), 399-421. 102 JUSTICE NEEDS IN KENYA - 2017 103

LAND PROBLEMS

6 Most serious lanMostd prob seriouslems land problems

Disputes over boundaries, rights of 36% Most serious way or access to property land problems Ownership/use of land 21% Land grabbing (land taken by powerful corporations or individuals) 20%

Disputes over land title 18%

We found significant differences in terms groups are more likely to have their Disputes over land tenure 3% of how different groups are affected by property rights affected by other specific legal problems related to land. people or corporations. Groups with a Other land dispute 2% higher level of formal education have Men are more likely to experience • disputes about access and use of their Nationalization/ disputes over boundaries or access 1% property with neighbours. denationalization of land to land (39% for men compared to 29% for women). Women are more • Wealthier respondents reported more frequently involved in disputes around frequently having legal disputes over Level of education ownership or use of land (27% for land titles. Specific Land Problems None Low Medium High women compared to 18% for men). Disputes with neighbours over bounda- • People with lower formal education 21% 37% 37% 44% levels are more affected by land ries, rights of way or access to property grabbing (30% compared to around 20% for other groups). People with Ownership/use of land 22% 25% 18% 12% a higher level of formal education face more disputes with neighbours Disputes over land title 22% 14% 22% 22% over boundaries and access to land. Land grabbing (land taken by powerful The data suggests that vulnerable 29% 18% 16% 20% corporations or individuals)

Nationalization/denationalization of land 1% 0% 1% 2%

Disputes over land tenure 3% 3% 4% 0%

Other land dispute 1% 3% 2% 0% 104 JUSTICE NEEDS IN KENYA - 2017 105

LAND PROBLEMS

6 Impact and effects

People facing land problems experience severe negative Land Other Because of the problem, did you experience…? effects in their lives. Problems Problems Extreme stress or mental health problems 62% 53% To what extent did the problem affect your life? Loss of time 52% 44% Loss of income 30% 28% Problem with relationships 28% 27% To what extent did the problem Violence against you 21% 16% affect your life? Land problems Other problems Violence against your family members 17% 9% Vandalism against you 11% 7% Affected me to a very large extent 47% 48% Physical health problems 11% 14% Personal injuries 9% 22% 43% Affected me to a large extent Loss of job 7% 14% 37% Other 2% 6%

Affected me to a moderate extent 7% 11% When looking at the specific consequences of legal problems, people with land problems report suffering from stress and loss of time considerably more often Affected me to a small extent 3% than people with other problems. Violence and vandalism is also more common 3% among people dealing with land disputes. This is not surprising as for many people land disputes mean endangered livelihoods. Did not affect me at all 1% 1%

0 10 20 30 40 50 106 JUSTICE NEEDS IN KENYA - 2017 107

LAND PROBLEMS

6 Information and advice for land problems

Informal sources of legal information

People facing a land problem are more formal education are more likely to Family members are the most frequently used likely to seek information and advice, seek legal information and advice. informal source of information and advice, either via formal or informal sources, Differences in age, and living in followed by elders and clan leaders. Friends and than those facing other problems. rural or urban areas do not have an colleagues are less likely to be involved at this effect on the propensity to seek legal stage by people dealing with land problems Men, wealthier respondents, and information. than those facing other types of legal problems. respondents with a higher level of Informal sources of legal information informal sources of information

Family members 34% 24% Looking for information and advice 28% Elders 9% 26% Clan leaders 6% 19% Friend/s 24% Land Problems 93% 7% Neighbours 11% 8% Colleagues 6% Yes 10% Land problems Other Problems 70% 30% No 6% Other problems Cultural leaders 2% 3% Other 3% 3% Church leaders 3% 20% None of the above 45%

0 10 20 30 40 50 108 JUSTICE NEEDS IN KENYA - 2017 109

LAND PROBLEMS

6 Most helpful sources of information Institutional sources of information and advice

People prefer chiefs and courts of law as consulted by wealthier people, while Chiefs and courts of law are identified as appears, because courts of law are more institutional sources of legal information chiefs are preferred by the lower income the most useful sources of information, frequently used by affluent people, while and advice. The police, prevalent in other segments of the population. The graph performing better in comparison to other chiefs are consulted by people of lower types of problem, are seldom contacted. below shows the most common sources. problems. Again, a socio-economic divide income. A closer look at these sources of legal information allows us to identify lawyers Most helpful source of information and courts of law as more frequently Land problems Other problems

Formal sources of informationFormal sources of information Chief 33% 16% 58% 17% Chief Court of law 6% 18% 10% Family members 16% 26% Lawyer 9% Court of law 7% 8% 8% Elders 3% Clan leaders 6% 15% 3% Police 20% 3% Police 16% Land problems An Administrative Tribunal 2% 14% 2% Other problems Lawyer 2% 7% Friend/s 12% Other 10% 15% 19% None of the above None of the options 1% 50% 2%

0 5 10 15 20 25 30 35

0 10 20 30 40 50 60 110 JUSTICE NEEDS IN KENYA - 2017 111

LAND PROBLEMS

Dispute resolution

People facing land problems take action to resolve them more People who face land problems take their own actions to resolve their conflicts frequently than those experiencing other legal problems. more frequently than people who experience other legal problems. Own actions Own actions Taking action Land problems Other problems Yes

No Independently contacted 49% the other party 35%

Land Problems 95% 5% Contacted the other party via friend/ 26% neighbour/colleague 17%

12% Other Problems 78% 22% Took other actions myself 15%

Contacted the other party 12% via relative 8%

None of the above 19% 39% 112 JUSTICE NEEDS IN KENYA - 2017 113

LAND PROBLEMS

Involving a non-institutional neutral Institutional mechanisms third party to resolve the dispute for dispute resolution

Among their social network, people with Chiefs and courts are the most widely land problems prefer to involve family used dispute resolution institutions to members, church leaders, and elders. solve land problems. Overall, people rely Note that friends are contacted less more on formal institutions to solve their often to resolve land problems than to land problems. resolve other legal problems.

Non-professional (neutral) third party Institutional neutral third party Non-institutional neutral third party Institutional neutral third party

Family members 26% Land problems Chief 52% Land problems 18% Other problems 17% Other problems 24% Church leaders 8% Court of law 25% 21% 8% Elders 5% 14% Friends 16% Other 16% 11% Cultural leaders 10% 7% Police 13% Clan leaders 5% 1% 19% Colleagues 4% 7% Lawyer 13% 2% 6% Other 2% 20% Neighbours 2% None of the above 3% 54% 31% None of the above 56%

0 10 20 30 40 50 60 114 JUSTICE NEEDS IN KENYA - 2017 115

LAND PROBLEMS

6 Most helpful justice journeys for resolving land problems

We also looked into what was the most helpful The table on the left displays the most mechanism for resolving land problems. helpful institutions or actions for solving land related legal problems. Chiefs are the most helpful actors when trying to Land Other solve a land problem, followed by courts problems problems of law. Chief 32% 13% If we look at gender, we see the same proportions for the most helpful dispute Court 23% 8% resolution mechanisms. Respondents Independently contacted the other party 8% 15% with a lower formal education and income level indicated that chiefs were more Lawyer 5% 3% helpful than courts more often than Family members 4% 9% other groups. Clan leaders 4% 2% Elders 4% 3% Administrative tribunal 3% 1% Police 3% 14% Other 15% 32% 116 JUSTICE NEEDS IN KENYA - 2017 117

LAND PROBLEMS

Evaluation of the justice Low rates of resolution journey • Land problems cost more time • There are virtually no differences when of land disputes and money to resolve than other we split the sample by gender. legal problems. • Users are marginally more satisfied with the process in terms of distributive justice and Only 38% of the respondents had their land problem solved in the past four restorative justice. years. More than 40% of the respondents report that their problems were unresolved at the time of the interview. Almost a fifth of the respondents had given up on achieving a resolution of their land problem. Evaluation of Land Justice Land problems Voice and neutrality Other problems Stress and Has your problem been resolved? emotions Respect

18% Time spent Procedural 29% clarity

Don't know 1 2 3 4 5 9%

42% Money spent Fair distribution

Yes, completely

Yes, partially Outcome Damage explanation restoration No, the problem is on-going and is still in the process of being resolved Problem No, and I am no longer taking any action to resolve it (I accepted that it will not be solved) resolution Don’t know 118 JUSTICE NEEDS IN KENYA - 2017 119

LAND PROBLEMS

Evaluation of different actors

Here we compare the two top dispute Chiefs resolution mechanisms used by PoliceChiefs Evaluation of Land Police Kenyans to resolve their land problems, Courts Justice by action Courts chiefs and courts of law, to one that is less popular in land problems but very Voice and popular in other problems, the police. neutrality

Stress and emotions Respect Chiefs receive consistently higher Courts are praised for the quality of scores on the quality of the procedure, their procedures. People appreciate the quality of the outcome and the the clarity and respect offered costs of justice than courts and the during the process, as well as the Time spent Procedural clarity police. They score particularly higher outcome. However, courts are at being affordable and their ability rated poorly in terms of costs and to restore the damages caused by the stress. Distributive justice is also problem. It should be noted that it is better rated for chiefs than for the 1 2 3 4 5 possible that chiefs and courts deal courts. The police ranks in between with different types of land problems. It these institutions, despite being is plausible that courts decide disputes perceived as less useful in these Money spent Fair which are more complicated legally and problems. distribution factually. Therefore, the chart should not be used as a direct comparison but as an indication of how the users of justice perceive the two institutions. Outcome Damage explanation restoration Problem resolution 120 JUSTICE NEEDS IN KENYA - 2017 121

Conclusion

The most prevalent specific land Land problems cause a lot of stress and problems are disputes with neighbours mental health problems. They also cost a over boundaries, rights of way or access lot of time to resolve. to property. It seems that good legal information and Land problems are more prevalent advice is even more important for land among rural inhabitants: they represent problems than for other legal problems. 17% of all their legal problems, while the Chiefs, courts of law, and family proportion is smaller in urban areas (9%). members are the most helpful sources of People with lower levels of formal information and advice. education are more likely to report land People facing land problems take action problems. to solve them more frequently than those Wealthier people report more problems experiencing other problems do. related to disputes with neighbours Chiefs and courts of law are the preferred about access to land, and, more institutions to solve land problems. noticeably, problems related to land titles. Wealthier people prefer the courts, while For lower income people, land ownership lower income people prefer chiefs. problems are more prevalent than for There are no differences in how men and other groups. women rate land justice. Men are more likely to experience disputes with neighbours over boundaries, or access to land, while women face more ownership/use of land problems. 122 JUSTICE NEEDS IN KENYA - 2017 7 Family Justice

Overview Seeking legal information and advice Dispute resolution Domestic violence 124 JUSTICE NEEDS IN KENYA - 2017 125

Most serious individual family problems Most serious speciﬁc family problems Introduction in Kenya and Uganda Kenya and Uganda

33% Domestic violence 31% Uganda 14% Divorce or separation 11% Family-related legal problems are the In Kenya, 20% of the women who • 12% Kenya third most serious problem category for reported to have a legal problem Inheritance 5% people in Kenya. In research previously experienced a conflict related to Difficulties obtaining child support 10% conducted in other countries, we have family, compared to just 7% of men. from a former partner 13% found that family problems tend to • Family problems are more prevalent 9% Custody rights 2% disproportionately affect women. For among people with no formal instance, in Uganda 28% of women 8% education than those with formal Other family problems 24% declared to have a family problem, education compared to just 10% of men. Domestic Difficulties over obtaining maintenance 6% violence is a huge problem for Ugandan • Family problems are also more from a former husband for yourself 2% prevalent among young adults (25- women. Women are almost 3 times more Difficulties agreeing to pay 6% likely than men to suffer from it. Family 39) and middle-aged ones (40-64), child support payments 10% compared to young people (18-24) Kenya issues also arise with higher frequency Difficulties agreeing to pay 1% among young people. and senior citizens (65+). maintenance to a former wife 1% Uganda • Rural citizens report slightly more 1% The data shows that in Kenya family family problems (13%) than urban 1% problems also disproportionately affect citizens (11%). women. 0 10 15 20 25 30 35 5 • Domestic violence is the most serious • Domestic violence is less prevalent family legal problem. It is prevalent for amongst the affluent; for them, both genders, but highest for women inheritance is the most prevalent family (35% of women with family problems justice problem. report domestic violence, while 28% of • Inheritance becomes a more prevalent men do). family justice problem as people grow • It is also more prevalent in particular older. stages of people’s lives; young people [18-24] and senior respondents [65+] are more frequently affected. 126 JUSTICE NEEDS IN KENYA - 2017 127

FAMILY JUSTICE

7 Impact and consequences

Family problems are very impactful. The graph below shows that the most Family Other common effects of experiencing problems are associated with emotional and Impact level physical wellbeing, rather than economic wellbeing. You can also see that Problems Problems compared to other problems, people report more injuries and violence. It is Did not affect me at all 0% 1% worrying that violence is more widely present among poorer respondents. Affected me to a small extent 3% 3% Consequences of family problems Affected me to a moderate extent 7% 11% Consequences of family problems Family problems Other problems Affected me to a large extent 41% 37% Affected me to a very large extent 49% 47% Extreme stress or mental 65% health problems 53% 46% Problem with relationships 24% 35% Loss of time 47% Personal injuries 30% Family problems have a big impact, as can 19% be seen in the table above. 90% of the Violence against you 22% 16% respondents with family problems said Physical health problems 19% that the problem affected them to a large 13% or very large extent. Violence against your 16% family members 9% People with a low socio-economic status 13% Loss of income 30% are affected most severely by family Family problemsjustice problems: more than 66% of the Vandalism against you 6% 8% Other problemsrespondents who report to not have 6% Loss of job 14% enough money for the basic needs say that the problem affected their lives to a very Other 3% 3% large extent, compared to 43% of the rest 2% Do not want to answer 1% of the survey respondents. 1% Do not know 1% 128 JUSTICE NEEDS IN KENYA - 2017 129

FAMILY JUSTICE

7 Legal information Informal sources and advice for family of information problems

As with land problems, legal information • Family members are the most common There are no gender differences regarding and advice is important for people informal source of information and seeking informal sources of information. encountering family problems. The vast advice. They are also seen as the most Low income respondents tend to consult majority of respondents with family helpful source of information. elders more frequently than the more problems actively seek information and • Friends are the second most common affluent groups. advice (84%). source. Wealthier respondents tend to be • Clan leaders and elders are also most active; 95% of this group sought important sources. information and advice.

Family Other Informal sources problems problems Looking for information Family members 53% 22% and adviLookingce: all sour for informationces and advice: all sources - Family problems Friend/s 23% 23% None of the options 22% 44%

Family problems YES NO Clan leaders 17% 8% 84% 16% Elders 16% 11% Church leaders 9% 2% Colleagues 7% 10% Other problems YES NO No 74% 26% Cultural leaders 5% 2% Yes Neighbours 5% 9% 130 JUSTICE NEEDS IN KENYA - 2017 131

FAMILY JUSTICE

7 Institutional sources of legal information and advice • The institutional sources of legal • We observe that almost 60% of the information and advice that are used low income respondents did not seek most frequently for family problems information and advice from any of are chiefs, the police and courts. the institutional sources listed in the • For affluent people, lawyers are the questionnaire most common institutional source of information and advice. They also tend to involve courts of law and Kadhi courts more often than less affluent people.

Family Other Institutional sources Problems Problems None of the options 45% 45% Chief 33% 23% Lawyer 10% 8% Police 10% 21% Court of law 8% 11% Kadhi court 4% 0% Other 7% 12% 132 JUSTICE NEEDS IN KENYA - 2017 133

FAMILY JUSTICE

7 Most helpful provider of legal information and advice

Family members are the most helpful The most frequently reported reason Most helpful at providMosting information helpful atan dproviding advice information andFamily problems providers of information and advice for for not seeking legal information and Other problems family problems (32%). In comparison, only advice among respondents with family advice 12% of respondents with other problems problems is that they did not believe identify family members as most helpful. that legal advice would have helped 32% The second most helpful source for family them to solve the problem (33%). In Family members 12% problems is chiefs. Other institutional contrast to that, the most frequent Other Problems Chief 20% sources, such as courts or police, are answer among respondents with other 19% perceived as less helpful for providing legal legal problems is that they did not think Clan leaders 8% advice for family problems. that anything could be done (31%). 3% Family Problems 8% Lawyer 7% • Clan leaders and elders are more Friend/s 6% helpful for the lower income group 11% than for higher income respondents. Court of law 5% 9% More affluent respondents identify • Elders 4% lawyers as the most helpful source of 3% Family problems legal information and advice. Police 4% Other problems 15% 4% Church leaders 1% 3% Kadhi Court 1% Other 6% 20%

0 5 10 15 20 25 30 35 134 JUSTICE NEEDS IN KENYA - 2017 135

FAMILY JUSTICE

7 Dispute resolution mechanisms for family problems

Reasons for not taking action

People facing family problems are more • What is worrying is that about a • The fear of aggravating the relationship likely to take action than those that fifth of the respondents who faced with the other party or of reprisals experience other problems. domestic violence as their most serious seems to be more of a reason not to take • More affluent respondents tend to legal problem did not take action to dispute resolution action than with other take action more often. resolve the situation. problems. • Men are slightly more likely than • On the bright side, fewer people were women to take action to resolve their deterred by the idea that nothing could disputes. be achieved.

Taking action to solve family problems Taking action to solve family problems No Yes

Family Problems YES NO 86% 14%

Other Problems YES NO 80% 20% 136 JUSTICE NEEDS IN KENYA - 2017 137

FAMILY JUSTICE

7 Non-institutional neutral Own actions third parties

Our data show that among non- family problem than to solve other legal People with family problems are more likely to take institutional dispute resolution problems. their own actions to resolve their problems than mechanisms, respondents with family Poorer people are more likely to involve those with other problems. problems are most likely to involve family elders and church leaders than any other members. Friends, elders, and church socio-economic group. leaders are less likely to be involved. Note Family problems Own actions that family members areNon-professional on average three neutral third party Other problems times more likely to be involved to solve a

Independently contacted Own actions 47% the other party 43% Family problems 35% Family members 16% Other problems 24% 16% IndependentlNone of ythe contacted options 47% Friends 16% the other party 35%38% 14% Elders 6% 22%24% 14% Contacted the otherNone party of the via optionsrelative Church leaders 7% 38% 10% Neighbours 9% Contacted the other party via friend/ Own actions 22% 2% Contacted the other party via relative neighbour/colleague 4% 7% 18% Colleagues 7% Family problems 12% 47% 3% Contacted theTookIndependentl other other party actionsy viacontacted friend/ myself 22% Clan leaders neighbour/collethe other paraguety 2% Other problems 14% 35% Other problems 18% 3% Family problems Cultural leaders 8% 12% 24% Family problems Took otherNone actionsof the options myself 0% 14% 38% Other problemsOther 2% 34% 22% None of the above 55% Contacted the other party via relative 7%

Contacted the other party via friend/ 22% 0 10 20 30 40 50 60 neighbour/colleague 18%

12% Family problems Took other actions myself 14% Other problems 138 JUSTICE NEEDS IN KENYA - 2017 139

FAMILY JUSTICE

7 Actions via institutional Most helpful to solve neutral third parties the problem

The users of justice are not very likely to involve institutional neutral third The table below shows that family members, chiefs, and independently parties in the resolution of family problems. If they do, the most popular choice contacting the other party are the most helpful options when trying to is chiefs (34%). It is noteworthy that people are substantially less likely to act solve a family justice problem. It is noticeable that the police and courts are via the police in family problems, compared to other problems. deemed less helpful in family problems compared to other problems.

Family problems Other problems Institutional neutral third parties Family Other Problems Problems Family members 20% 6% 30% Chief Chief 17% 17% 21% Independently contacted the other party 14% 14% 9% Police Clan leaders 7% 2% 19% Court of law 6% 11% 8% Court of law Elders 6% 2% 11% Police 4% 13% Lawyer 7% 7% Lawyer 4% 4% Contacted the other party via relative 4% 2% 3% Kadhi Court Contacted the other party via friend/ 0% Family problems 3% 4% Other problemsneighbour/colleague 3% Other Other 16% 27% 4%

None of the above 50% 49%

0 10 20 30 40 50 140 JUSTICE NEEDS IN KENYA - 2017 141

FAMILY JUSTICE

7 Evaluation of costs & quality of Justice Journeys

Has your problem been resolved?

Has your problem been solved? The respondents who are facing family difference is that people with family problems do not experience the justice problems are slightly less satisfied with journey differently than those who the time aspect of the journey. Similarly, 2 face other legal problems. The rates no differences appear when we split the for all dimensions except for stress and sample by gender. emotions are average. The only noticeable 26% 27% Yes, completely Yes, partially amily ustice different dispute resolution strategies Family members No, the problem is on-going and is still F J : Other in the process of being resolved Chiefs No, and I am no longer taking any action to resolve it (I accepted that it will not be solved) Voice and 13% neutrality Other 32% Stress and emotions Respect

40% of the respondents had solved Time spent Procedural • clarity their problem within four years. • One in four respondents gave up pursuing resolution of the family 1 2 3 4 5 problem. Using chiefs as a dispute resolution • Money spent Fair strategy resolved (completely or distribution partially) 45% of the problems, family members solved 37%, and independently contacting the other Outcome Damage party solved 23% of the problems. explanation restoration Problem resolution 142 JUSTICE NEEDS IN KENYA - 2017 143

FAMILY JUSTICE

7 Conclusion Comparing family justice in Kenya and Uganda Kenya Uganda

Voice and 2 neutrality Family justice problems are one of the The most helpful action to solve the most impactful and prevalent legal problem is acting via other family Stress and27% 16% emotions Respect problems in Kenya. members, as well as independently contacting the other party. They disproportionately affect women, young and old citizens, as well as people People with family problems do not with a low level of formal education. experience the costs and quality of the 13% Procedural justice journey differently than people Time spent Domestic violence is the most prevalent 32% clarity who experience other legal problems. specific problem in this category, and women are the most affected group. Disputants in dispute resolution 1 2 3 4 5 mechanisms organized by chiefs receive Family problems tend to severely affect substantially better outcomes in terms of people; their effects are more related to fair distribution and problem resolution emotional and physical wellbeing than Fair than people who involve family members Money spent economic wellbeing. distribution to resolve the problem. For the lowest income group, informal living arrangements play more of a role in family justice problems than with other Outcome Damage income groups. explanation restoration Most people look for legal information Problem resolution and advice (84%) and take some form of action to resolve their problem (86%). Among formal dispute resolution More interesting is the fact that if we split the data by dispute resolution mechanisms, lower income groups rely mechanism, chiefs are better rated in outcome explanation, problem resolution most often on chiefs, while higher income and fair distribution, compared to family members. groups rely more on lawyers and courts.

International comparison Family problems in Kenya cause significantly more stress and emotions than family problems in Uganda. 144 JUSTICE NEEDS IN KENYA - 2017 8 The Justice Journeys of People from Low-income Households 146 JUSTICE NEEDS IN KENYA - 2017 147

Introduction

Level of Education Income One of the key roles of a well-functioning • We are able to buy food, energy and None Low Medium High justice system is to protect vulnerable clothes but buying goods for longer Lowest-income 24% 65% 9% 3% groups within a society. The justice use is a challenge system should offer a way of addressing We can afford almost whatever we Low-income 7% 69% 20% 4% power imbalances and provide access • want – car, housing and other things to justice for all. In this chapter we High-income 3% 21% 36% 10% investigate to what extent the income level of people affects their justice On this basis we divided the respondents Highest-income 1% 21% 36% 43% journeys. The different income groups into four groups. will first be defined and then we will Those who self-identify as low- Urban Rural take a closer look at the paths to justice • income are mostly rural residents, available to them. Lowest-income 13% 87% have significantly lower formal education levels and are less likely to Low-income 27% 73% be employed. How we define low-income High-income 31% 69% households • The higher-income families, on the other hand, are more likely to live in Highest-income 50% 50% In our Justice Needs and Satisfaction urban areas and have jobs. Over 75% study we asked the respondents which of the highest-income families report Engaged in gainful employment? of the following four statements best a medium or high formal education YES NO describes their family’s financial situation: level, whereas for the families from the lowest-income category this Lowest-income 57% 43% We do not have enough money for the • proportion is just 12%. basic needs such as food and energy Low-income 67% 33% • We are able to buy what is necessary High-income 80% 20% but buying clothes is difficult Highest-income 94% 6% 148 JUSTICE NEEDS IN KENYA - 2017 149

JUSTICE JOURNEYS

8 Prevalence of legal problems

Experience with legal problems

In the graph on the right, the prevalence It is also important to keep in mind that for Experience with legal problems of legal problems is linked to the four the lowest-income group co-occurrence of income groups: problems is much higher than it is for the other three income groups. So, when an Highest-income 73% It is interesting to note that the higher individual from the lowest-income group income groups report legal problems does experience a legal problem, there is a slightly more often. At the same higher chance that another legal problem time, we know that there are millions will also manifest itself (for example, High-income 63% of lower-income Kenyans who also divorce connected with housing problems encounter situations in which the law or debt problems connected with a crime can be used to provide a fair solution. problem). The lower-income respondents tend to Low-income 59% have a lower level of formal education. To further explore this issue, we will have It is therefore possible that those who a look at the categories and instances of have less income are less capable of legal problems that low and high-income recognizing a legal problem. Although people report. Lowest-income 63% our methodology does not expect that people recognize the legal aspects of a dispute, disagreement or grievance, individuals with a higher level of 0 10 20 30 40 50 60 70 80 formal education may be more likely to conceptualize a situation as a legal problem. 150 JUSTICE NEEDS IN KENYA - 2017 151

JUSTICE JOURNEYS

Types of problems

There are slight but telling differences group that self-identifies as highest- multiple problems in the legal problems that low and income also encounters crime less often high-income Kenyans encounter. All than the other groups. Lowest Low High Highest four groups experience the same three income income income income problems most often, albeit with some Multiple problems Crime 23% 21% 22% 16% differences in the prevalence, namely Land problems 22% 14% 17% 21% crime, land and family disputes. Differences between low and high-income 20% 15% 13% 17% However, those who self-identify respondents also appear when we explore Family as lower-income more frequently the individual categories of legal problems. Employment 11% 11% 13% 10% experience family disputes and disputes Focusing on the three most prevalent Neighbours 15% 12% 10% 7% connected with children, disagreements categories, we find that cattle raids are Money 10% 10% 12% 7% between neighbours, money-related problematic for the lowest-income group problems, accidents, grievances in the crime category. Land problems tend Accidents 8% 9% 6% 4% connected with public services, and to co-occur particularly for the lowest- Public services 8% 6% 5% 6% obtaining ID documents. income group, specifically problems related When looking at the differences to use of land, disputes with neighbours Obtaining ID 8% 6% 4% 2% between rural and urban lower-income over boundaries and land grabbing. For Consumer problem 6% 3% 4% 5% family problems, domestic violence is more respondents, we find that land problems Children 7% 5% 3% 2% are more common in rural areas (16% common among lower-income families, Housing/Rented Property/ 2% 4% 4% 4% compared to 5%) and crime is more while inheritance problems and alimony Tenant problems common in urban areas (27% compared problems are more prevalent among to 16%). the highest-income group. Another Business related problems 3% 2% 3% 7% observation worth highlighting is the On the other hand, higher-income Social welfare 4% 2% 2% 3% fact that lower-income people seem to Kenyans encounter more legal problems Housing/Property problems 2% 1% 1% 4% have more problems obtaining their ID related to housing, particularly as owners documents. Housing/Rented Property/ 1% 2% 1% 7% and landlords, but also as tenants. The Owners problems 152 JUSTICE NEEDS IN KENYA - 2017 153

JUSTICE JOURNEYS

Impact of legal problems Legal information and advice

There are no major differences in the We find that both the lowest and Most striking is the stark difference in impact of the legal problems on low and highest-income groups rely more on the use of lawyers and courts among high-income respondents. Around 85% family members for information and the different income groups with legal of the individuals from both groups advice than the two groups in between. problems. Less than 5% of lower-income say that the legal problem affected Lower-income respondents also rely Kenyans go to a lawyer for information them negatively to a large or a very more on elders (15% for the lowest- and advice, while less than 8% go to large extent. Land problems, housing, income group). The highest-income courts. For high-income respondents and obtaining ID documents have a group is about twice as likely to seek these numbers are slightly higher, at somewhat harsher impact on the lower- the advice of colleagues (19%) than the 9% and 10% respectively. However, for income groups compared to the higher- other groups. the highest-income group 28% indicate income groups. going to a lawyer and 24% indicate An interesting and worrisome picture going to the courts. These differences Respondents from the lower-income emerges from the responses to the mark a significant disparity in the access group are more likely to report that they question about the use of institutional to competent legal information and experienced personal injuries, violence, sources of information and advice. advice. and physical health problems as a result First, about half of the lower-income of the problem. For the higher-income respondents say that they did not In general, lower-income people seek groups we find that loss of time and receive legal information or advice from legal information and advice less problems with relationships are more such sources. Only 43% of people from frequently when they face a legal common impacts. the high-income category say that they problem, as illustrated in the graph on have not used such sources, while only the next page. 22% say so in the highest-income group. This is a very substantial difference which indicates different levels of access to justice for high and low income groups in Kenya. 154 JUSTICE NEEDS IN KENYA - 2017 155

JUSTICE JOURNEYS

8 Dispute resolution strategies Seeking information & advice for legal problems Seeking information & advice for legal problems Kenyan people are active in looking for Despite the difference in the responses resolutions to their problems. On ave- to legal problems, the low and high- rage 81% report that they took action income respondents report only slightly to find a resolution to their legal prob- different rates of resolution of the Highest-income 87% lem. Lower-income groups, however, legal problems. Around 43% of the are at significantly higher risk of simply lower-income and 49% of the higher- abandoning their legal problem and income groups say that the problem has High-income 77% doing nothing. One in four of the lowest been resolved completely or partially. income group who encounter a problem The difference between the lowest say that they did not act to solve the and highest-income groups is quite problem. For the highest income group substantial, however, at 37% and 51% Low-income 72% this number is only one in ten. Taking actionrespectively.

Taking action Lowest-income 73%

Highest-income 89%

Interestingly, about the same number of which is to be expected. Lower-income High-income 82% people across the four groups who did people are also much more likely to not seek legal information and advice say indicate not knowing what to do that they remained passive because they to receive legal advice or not being Low-income 80% did not think that anything could have aware of opportunities for receiving been done. Lack of money is a bigger assistance. issue for the lower-income Kenyans, Lowest-income 77%

0 20 40 60 80 100 156 JUSTICE NEEDS IN KENYA - 2017 157

JUSTICE JOURNEYS

Lowest Low High Highest Strategies for responding income income income income Family members 23% 19% 18% 25% to legal problems Friends 17% 14% 16% 28% Church leaders 13% 9% 11% 6% Cultural leaders 6% 6% 8% 9% Elders 11% 7% 6% 6% Lower-income people are significantly On the other hand, the lowest-income Colleagues 8% 5% 7% 16% less likely to engage an institutional people go to chiefs slightly more dispute resolution provider than higher- often. This clearly indicates that they Neighbours 3% 2% 3% 1% income respondents. This is especially are dependent on dispute resolution Other 2% 2% 2% 5% true for courts and lawyers. processes that are close to the communities. Clan leaders 2% 2% 1% 2%

Furthermore, lower-income people are resolution to the legal problem. Having a Lowest Low High Highest not more reliant on non-institutional larger social network helps them to deal income income income income mechanisms, such as clan leaders and with the legal problems in their own way. Chief 24% 22% 22% 16% elders, than those who are better off. They contact the other party significantly Police 18% 17% 17% 20% This concurs with the finding that more often themselves or through a proxy than those in the lower-income Court of law 9% 8% 9% 20% the higher-income respondents are groups. Lawyer 2% 4% 7% 23% significantly more likely to undertake their own actions in order to find a fair Assistant-Chief 3% 3% 4% 15% Other 1% 3% 2% 10% Lowest Low High Highest income income income income County Government 3% 1% 2% 3% Independently contacted the other 30% 36% 37% 51% Administrative Tribunal 1% 1% 1% 0% party Employer 0% 0% 1% 2% Contacted the other party via friend/ 15% 17% 20% 27% Central government organisation 0% 0% 1% 2% neighbour/colleague Kadhi Court 0% 1% 0% 1% Took other actions myself 15% 11% 14% 26% NGO 0% 1% 0% 1% Contacted the other party via relative 13% 7% 9% 12% 158 JUSTICE NEEDS IN KENYA - 2017 159

JUSTICE JOURNEYS

8 Reasons for not Costs, quality of process, taking action quality of outcome

There are Kenyans who encountered a are also more likely to say that they did Based on how people perceive and serious legal problem and preferred to do not pursue justice because of a lack of evaluate the fairness and costs of the nothing. 37% of the lower-income groups money (8.5% higher-income; 16.3% justice journeys, we can conclude that the say that they remained passive because lower-income). We also observe that outcomes for the different income groups they did not believe in their capabilities 28% of Kenyans from the lowest income are not all that different. The highest- to resolve the problem. For the higher- group say they did nothing because the income group experiences the justice income Kenyans this percentage is much other party was more powerful, whereas processes as more stressful and spends lower, 30% and 27% for the two higher- among the highest income group this is more time and money to resolve a problem income groups, respectively. Interestingly, only 13%. This indicates that the justice on average. Since the above dimensions the lower-income respondents report system is not seen as an equalizing force measure subjective assessment, it could slightly more often that the main reason by a sizable part of the population. very well be the case that the different for doing nothing is that they did not groups have different expectations from know what to do to resolve the issue (15% the procedures. Keeping this caveat in mind, higher-income; 24% lower-income). In it is clear that despite the fact that the a similar fashion, lower-income Kenyans groups follow very different paths in their justice journeys, the outcomes are evaluated approximately the same across the groups. 160 JUSTICE NEEDS IN KENYA - 2017 161

JUSTICE JOURNEYS

8 Conclusion Voice and neutrality

Stress and emotions Respect

Respondents from the different income Lower-income Kenyans are generally groups experience problems at comparable less confident that they can success- Time spent Procedural rates but they encounter slightly different fully deal with legal problems. clarity types of problems. Despite the differences in the justice Lower-income people are significantly journeys of the different income 1 2 3 4 5 less likely to receive legal information and groups, the quality of the process and legal advice from competent sources. The outcomes are evaluated roughly the higher-income respondents are significantly same across the four income groups. Money spent Fair more empowered in terms of legal informa- distribution tion and advice. Higher-income respondents are significantly more likely to resolve their legal problem with the help of an institutional neutral Outcome Damage third party. Being in the highest-income explanation restoration group increases the chance that someone Problem will involve a lawyer by over ten times com- resolution pared to someone form the lowest-income group.

Lowest-income Low-income High-income Highest-income 162 JUSTICE NEEDS IN KENYA - 2017 9 The Voices of the Justice Leaders in Kenya

Justice transition processes Quality of justice processes Costs 164 JUSTICE NEEDS IN KENYA - 2017 165

Introduction Justice transition processes in Kenya

2010 Constitution Parallel to our Justice Needs and Satisfaction survey, we interviewed The 2010 Constitution affects (d) justice shall be administered without 30 individuals who occupy high-level profoundly the justice landscape in undue regard to procedural technicalities; positions in Judiciary Kenya. Our primary Kenya. Access to justice, along with and goal was to explore and understand their many other fundamental rights, has (e) the purpose and principles of this views, experiences, and expectations been explicitly enshrined in Kenyan Constitution shall be protected and regarding how people navigate their primary law. Article 48 clearly envisions promoted. justice journeys, and the possibilities that the Kenyan state is the duty-bearer In 2016 a Legal Aid Act put into place a for improvement. To expand the range responsible for operationalizing the right system of legal aid designed to guarantee of views, we decided to aim for two to access to justice. the right to access to justice. Many of groups: justice leaders, those who are in Article 48 the justice leaders in the judiciary link a position of decision making, and justice The State shall ensure access to justice the 2010 Constitution to a new trend providers, those who are on the service’s of increased demand for justice. The front lines. for all persons and, if any fee is required, it shall be reasonable and shall not comprehensive Bill of Rights empowers In the next paragraphs, we provide impede access to justice. Kenyan citizens to actively pursue their legal rights. an analysis of those semi-structured Article 159, par. (2): interviews. Our intention is to map out “What has happened over the last six In exercising judicial authority, the courts the views of the justice leaders in Kenya years, is that there has been a lot of and tribunals shall be guided by the on the challenges and opportunities in demand [for justice], mainly because of following principles: delivering fair resolutions to people’s the new Constitution, so a lot of Kenyans problems. The analysis covers the quality (a) justice shall be done to all, are coming to court. […] if it wasn’t for of the justice processes, the quality of irrespective of status; the fact that we were able to recruit more the outcomes, and the costs of justice. (b) justice shall not be delayed; officers and staff, we would not have In that way, we will put the views of the (c) alternative forms of dispute been able to meet this demand. We are justice stakeholders with the perceptions resolution including reconciliation, now able to meet this demand because of of the Kenyan people side by side. mediation, arbitration and traditional the numbers and we have the facilities in dispute resolution mechanisms shall be terms of more courts which have been set promoted, subject to clause (3); up.” Senior Judge 166 JUSTICE NEEDS IN KENYA - 2017 167

VOICES OF JUSTICE LEADERS

Within the justice system there is an “One of the very positive things that has impression of a massive rise in the number “There is also the challenge of happened over the years is the openness. of court cases. We do not have baseline access in terms of just knowing, Previously the judiciary played the old data but our study finds that 63% of the information needs of Kenyans school game which is a judge speaks only Kenyans had to deal with one or more , they don't have the information. through their judgments. You do not speak serious legal problems in the past several to the press. If you are being bashed and so years. As discussed above, this is a rather They might have a problem but on you kept quiet.” Senior Judge high prevalence rate when compared to they don't know this is a problem Included in the increasing culture of other countries. that ought to be resolved in a openness and transparency are the efforts “[…] you find the amount of cases filed court.” Senior Judge to integrate self-assessment, performance from that time [before 2010] to now is measurement and management in the almost, I would say five times or ten times functioning and evaluation of the judiciary. According to the leaders of Judiciary what we had before.” Senior Judge Kenya, there are more dispute resolution “Judges themselves set goals to be Besides the enhancement of the institutions nowadays. Several accomplished in a year. We now have constitutionally promulgated fundamental respondents highlighted the presence a Performance Measurement and rights, other factors that contribute to the of courts even in the “remotest parts” Management Unit (PMMU), which is a perceived increase of court cases in Kenya of the country. Many more judges and mechanism for collecting data to see if are the rising awareness of rights as well magistrates are serving the justice needs they are meeting their targets.” Industry as the evolving and improving institutional of the citizens. Many respondents gave the representative framework. example of the mobile courts as a good Despite the numerous positive trends, practice for delivering justice to people “The population continues to grow, people the interviewed leaders of the Kenyan and communities that cannot overcome know about their rights and the more you judiciary outlined challenges that the most rudimentary barriers to justice. try to deal with the backlog, the more it impede the processes of justice delivery. Nonetheless, as we will discuss below, increases.“ Senior Judge Delayed justice and the backlog of “The biggest problem is maybe the there are serious concerns about the cases in the courts are clearly the most backlog that we are still experiencing At the same time, this rising awareness human resources available to the Kenyan serious problems for many senior judges, despite the fact that the Chief Justice is not equally distributed across society. judiciary. administrators and attorneys. Below we and the Judicial Service Commission Interviewees often expressed concerns The judiciary in 2017 is seen as more open discuss the problem of delayed justice have tried to increase the number of about the lack of sufficient knowledge and willing to listen. Leadership, from from the perspective of both the users and judges” Advocate at the High Court and understanding of laws and rights. This current and previous Chief Justices and justice leaders. concern is particularly strong for vulnerable other senior members of the judiciary, social groups such as poor, uneducated explained the main factors in the people living in remote areas etc. increasing transparency and accountability of the system: 168 JUSTICE NEEDS IN KENYA - 2017 169

VOICES OF JUSTICE LEADERS

“What has to be done? First, reduction of by the executive, or parliamentarians “More importantly, as a training institute backlog. Because cases themselves, if you saying that something being discussed quality justice has to be delivered. Now follow them through the litigation procedures, in parliament can't be adjudicated, they what do I mean by quality justice? The you cannot complete them in a year. A year should really be that independent because judges, the judicial officers and the judicial would be very, very speedy. On average I think if we don't have it, then we lose the fight.” support staff must render effective and it's about five years.” Senior Judge Advocate at the High Court fast justice to the people of Kenya.” Senior Officer, Judicial Training Institute Allegations of corruption are bothering Many other challenges were outlined in many of the leaders of Judiciary Kenya. It the interviews with the justice leaders. In the next sections we discuss how the should be noted that numerous interviewees Lack of proper ICT systems decreases leaders of the Kenyan justice system are aggrieved that there is a perception of efficiency and limits the opportunities to perceive the costs and quality of the corruption, which oftentimes is based on scale. Despite the Legal Aid Act of 2016, available justice journeys. hearsay and media speculation. As discussed a significant proportion of the litigants above only around 10% of the serious legal in the Kenyan courts are unrepresented. problems in Kenya are actually referred for According to some interviewees, nine out resolution to the court system. of ten individuals in appellate cases are not represented by a qualified lawyer. The “We all know that the perception out there is fact that the ability to access justice is that you can find your way...you know that you directly related to socio-economic status can bribe your way through justice. That's why is particularly damaging to the social you see instant justice like on criminals at the fabric of Kenya. Other barriers, such as lower level whereas I've stolen billions but I'm monetary costs, physical infrastructure and still free and I ...I can walk around.” Advocate knowledge, impede access to justice. at the High Court Given the increasing demand for justice in Another challenge on the systemic level is Kenya and the heightened expectations the independence of the judiciary as a whole of the users, the biggest challenge is and the individual judges, magistrates, DPP whether the Kenyan judiciary can provide Leaders’ views on the quality of (Department of Public Prosecution) staff, high quality justice services to meet the police investigators and officers and other procedures, quality of outcomes demand. stakeholders. The interviewed leaders clearly and costs of justice recognize that rule of law and justice are only “Legal disputes have grown exponentially For the people of Kenya justice is not an possible when individual and social disputes and are continuing to grow with the new abstract notion. As we saw above, there are resolved by an objective and unbiased third Constitution and we can't just afford to are millions of legal problems that have to party. do business as we used to before and of be resolved every single day. An accessible, course the public is more demanding, they “The courts should be able to independently affordable, quick and fair justice journey is want more action like yesterday; they want come up with rulings without fear of threats needed for each of these problems. justice, they want a fair process.” Senior Judge 170 JUSTICE NEEDS IN KENYA - 2017 171

VOICES OF JUSTICE LEADERS

The chart below shows how the users of justice perceive the quality of the Quality of justice processes, the quality of the outcomes and the costs of formal and informal justice journeys. Tellingly, during the Triangulation Workshop in Nairobi processes and the individual interviews, the justice leaders recognized many of the problems of the users of justice. Below we analyse the high and low points of the three dimensions of the justice journeys: quality of the procedure, quality of the outcome and the costs of justice.

Several related topics emerge when the “People want not instant justice but justice leaders of the justice chain in Kenya within a reasonable time.” Advocate at the General evaluation of justice processes deliberate about the formal and informal High Court processes: Interviewees from the Kenyan judiciary recognize the need for listening to Voice and Delayed justice delivery neutrality • the parties in a court proceeding. Independent and neutral third parties • Justice processes have to be clear and Stress and who give the parties opportunity to emotions Respect understandable. We see in the chart express their interests and listen to above that all dimensions of the process, these interests including the procedural clarity, receive Clear process information • from the users of justice scores in the Unrepresented litigants • middle of the scale. One of the most Procedural Linkages between formal and Time spent • important procedural functions of a clarity traditional justice neutral decision maker is to explain the process to the participants. This gives 1 2 3 4 5 Justice delayed is justice denied. Slow the parties certainty and predictability. justice is the most frequently mentioned Sufficient and timely procedural concern in the interviews with justice information also signals to the disputants Money spent Fair distribution leaders. Not only from a systemic that the neutral decision maker values perspective but also as a problem in them as respected members of society. specific justice processes. Long processes The quote below expresses concern that are perceived as low quality. some traditional justice mechanisms Outcome Damage “Delay is a big thing and delay occurs in so might fail the disputants in terms explanation restoration many ways. The judiciary gets bashed 99% of voice. Therefore, the respondent Problem by the public. To the public the courts are emphasizes the mission of the judiciary resolution responsible for discharging justice.” Senior to deliver justice through procedures in Judge 172 JUSTICE NEEDS IN KENYA - 2017 173

VOICES OF JUSTICE LEADERS

of how to lodge, how to file a case and unpredictable legal fees urge many which all participants are allowed to express needs, how to prosecute a case.” Senior Court litigants to navigate through the system present evidence and make claims and statements. Administrator on their own. “In fact you’ll find in some communities the parties are Reassuringly, other respondents share “Most of the justice resolution in our area not even supposed to attend such a session. So if you are this feeling that rich and timely process is adversarial through the process. But now the person affected and you are not allowed to attend, information together with equal there are efforts being made towards…the then it means that it's not working for you. But for the application of the procedural rules is creation of the small claims courts which is judicial process, I think we are able to treat everyone at the core of fair processes. Moreover, less formal.” Senior Court Administrator fairly, we pay special attention to vulnerable groups and there is a direct link between the need for these are mainly children and women and elderly persons “Then the other shortfall is the technical process information and the satisfaction and unrepresented litigants. We will always ensure that nature of the proceedings. A lot of litigants of the users of justice. This respondent we bend over backwards to ensure they have attended, in non-commercial issues, they are not talks about the satisfaction of the we explain to them the process, they are aware of the lawyers, they are ordinary Kenyan citizens litigants and the necessity to respect the steps and we give them enough time to actually do what and in many cases they come to court, they rights of the parties: they are supposed to do and bring their papers to court. can see there is a judge or a magistrate But I know for some the court process is also quite alien “In the process respecting the rights of they can see advocates but they don’t because they don't understand the procedures. So you the litigants, making sure that the litigants know what is going on, ok what is going have to explain to them when they first appear in court, know exactly what is going on in my court on here, now I am not sure how that can they stand up and say ‘oh we want to sell part of the land and also making sure that by the time the be addressed.” Senior Officer, Judicial so that we can pay the surveyor’ you have to explain to process is over they are satisfied in the Training Institute them that look you can’t just stand up in court and tell me sense they know what went on and if there “One of the deliberate legal tools is to that, you have to file an application, take it to the registry, is any next action that they ought to take, avoid unnecessary technicalities in the then get a date. So these procedures are really alien to they know exactly what they are supposed justice and legal processes. [Procedural most Kenyans and especially if they are unrepresented.” to do.” Senior Magistrate rules have to be] clear and simplified to all Senior Judge Procedural formalism has been seen court users and the clients … who we want Well explained justice procedures are central tenets as a challenge for the quality of to use them. In the judiciary, that has been of access to justice. An interviewee from the judiciary court proceedings in Kenya. Legal identified as a critical area and we have to identifies a clear causal link between the clarity of technicalities, jargon and difficult to reduce these unnecessary barriers.” Senior procedure and the willingness to embark on a justice navigate procedural rules and devices Court Administrator journey. hinder the abilities of the litigants to freely navigate the court proceedings. “A Kenyan can file a claim on their own at the registry Here, it should be noted that high and because they are now understanding simple procedures 174 JUSTICE NEEDS IN KENYA - 2017 175

VOICES OF JUSTICE LEADERS

9 Quality of the outcomes of justice processes

We asked the justice leaders in Kenya “They [litigants] find that outcomes A shift towards win-win outcomes is seen as a strategic about the quality of the outcomes of the are too technical, sometimes they don’t possibility for change. Examples of such justice designs justice processes. In terms of substantive understand what’s going on and what the are seen in more traditional dispute resolution methods, justice, the respondents identified the magistrate is saying. The delay is really such as reconciliation and negotiation: following issues: the most frequent complaint and leads to “Some parties will be dissatisfied, others will be satisfied Delays in dispensing justice. perceptions of bribery and corruption.” • because in a win/lose situation the outcome is based The need to move beyond the Senior Court Administrator • on evidence appearing in court and facts as per the law. conception of justice outcomes as a Specific concern about the quality of the Other processes ... can explore a win/win situation where zero-sum game. outcomes of justice processes in Kenya the outcome is in favour of both parties. In reconciliation Challenges of people understanding • is the perceived “winner takes it all” there are more favourable [outcomes] as opposed to court the technical dimensions of justice mentality. The common perception is that processes which are clear cut win/lose.” Senior Court outcomes. one party in a dispute resolution process Administrator Just like the quality of the procedure, the wins whereas the other party loses. “The outcome is that one party wins and one party loses. quality of the outcomes of court (but also Thus, by definition half of the users of Because it is not a negotiating process, the loser will other forms of justice) processes is to a justice should be dissatisfied with justice. usually be unhappy and the winner will be happy. But there large extent a function of how speedily However, many of the interviewed justice are times when the loser also feels that they have lost fairly. the legal problem has been resolved. In leaders see this zero-sum approach Yeah this also happens. But losing fairly or winning after the quote below, a respondent from the as bad process design rather than an a long delay, it also effects the justice outcome because Kenyan judiciary talks about two aspects inherent feature of justice procedures. maybe the value of whatever was at stake, other things of justice outcomes: The need to motivate A fair and just process makes the parties have gone wrong.” Senior Court Administrator and explain decisions and the time more understanding (and perhaps dimension of justice delivery. compliant) to unfavourable outcomes. 176 JUSTICE NEEDS IN KENYA - 2017 177

VOICES OF JUSTICE LEADERS

9 Costs of justice processes

According to the spider web, the users remedial action and it is under a certificate does not give them [the users of justice] a of justice in Kenya are very dissatisfied of urgency and it just takes long and long. good experience.” Senior Officer, Judicial with the costs of justice processes. It is really frustrating having to wait so long Training Institute The dimension of stress and negative to get justice even in matters that require emotions receives particularly low scores. urgency.” Advocate at the High Court Stress and negative emotions is the In the interviews with leaders from the “You know legal matters...they can even be justice dimension that receives the Kenyan judiciary we see confirmation of concluded in a week, others will take ten lowest ranking from the users of justice that trend as well as explanations and years, others even 50 years.” Advocate at in Kenya. We see also in many other possible corrective actions. The following the High Court countries that justice procedures are topics emerge: experienced as very stressful events. This Delay as cost of justice. • is caused by delays in justice but also by Stressful procedures and links to • There is another dimension of prolonged hostile procedures. Hence, there is a link delays. procedures: Stress and negative between stress as a cost of justice and Monetary costs of traveling a path to • emotions. Several senior members of the the quality of the justice processes: justice. Kenyan judiciary outlined the direct link “You know sometimes Kenyans think judges Slow-moving court proceedings take a between delayed justice processes and or magistrates are not normal people. They significant toll on the users. People have stress. fear the courts, some even fear coming to to spend more money and time in order “I know for certain that a good number the gates of courts, you can go to places to resolve their legal problems. Several of people, the thing that they dread is where people, I don’t know, they think the respondents articulated that long court the hearing date. Cause they are not sure courts are alien, I don’t know what.” Senior procedures freeze valuable assets of the that this thing will take off, so that is a Court Administrator parties, such as money, property, and the lot of stress before the hearing, whether ability to start new family or employment it’s going to take off or not. When it takes Adjudication is known for its high and relationships. off they will always be happy, win or lose unpredictable costs. The interviewed but at least the case took off. That’s one leaders of the Kenyan judiciary are “Of course it is very frustrating especially area that we need to address, perhaps it concerned about the effect of the high in terms of issues that require immediate 178 JUSTICE NEEDS IN KENYA - 2017 179

VOICES OF JUSTICE LEADERS

monetary costs related to litigation. The is actually a rural county.” Senior Judge unease is naturally for the ability of poor and disadvantaged people to access and receive justice: Beside the costs of representation, fees are also a matter of debate in Kenya. One “The cost of litigation is too high and for a of the interviewees declared that the poor person, if he does not have money to Supreme Court: pay and the court appearances, the lawyers and even the costs that emanate if you “is the cheapest court to file a petition, don't win the cases, I think someone just and it is the highest court in the country. shy away.” Advocate at the High Court It is leading by example.” Senior Court Administrator “Some actually have their rights…stepped on because of lack of funds they cannot hire advocates to do cases for them, they However, the costs are still high in cannot face the courts.” Senior Court comparison to people’s income. Our Administrator respondent continued: “Poverty inhibits them in a number of “[…] we charge an application 400KES only, ways. There are those who even don't have but still that money is a lot for the poor the money to just travel to court. There Kenyans (…) we have gone ahead and said are days when you sit in court and you for those who cannot afford, ‘please come ask, where are the witnesses? And you and tell us, and we will give you an OK for are told actually the witnesses couldn’t filing without a single cent”. Senior Court come because they don't have transport, Administrator especially in the rural areas and where I sit 180 JUSTICE NEEDS IN KENYA - 2017 10 Conclusions and Recommendations 182 JUSTICE NEEDS IN KENYA - 2017 183

Conclusions

Diverse and non-linear justice journeys. less affluent fellows. Kenyans with low Most Kenyans (81%) seek resolution of incomes go to chiefs for an affordable their legal problems. Various strategies and speedy justice process. This is patent are used – ranging from own actions, to in the case of land problems. People with non-institutional and institutional neutral crime problems rely on the police, as one Pervasiveness of legal problems: means impacting millions of people. It third parties. People contact the other would expect. For those who did not Two out of three Kenyans encountered is therefore urgent to improve justice party, seek involvement of family members, take action to solve their problems, again at least one legal problem during the last journeys as a way to achieve a better friends, church and cultural leaders, elders hopelessness is the main deterrent. four years. Every 4 years the people have to quality of life for millions of Kenyans. and colleagues. Some of the legal problems deal with around 18 million legal problems. Accessible, fair and effective justice People demand more emotionally- are referred to institutional mechanisms About 3.7 million people were affected by journeys will immensely benefit the people friendly processes. for dispute resolution – chiefs, police, crime problems. Also. legal issues around of Kenya. Kenyans rate their justice journeys around courts etc. The justice journeys are diverse land and family justice are severe and average. This means that there is a lot of Kenyans are very active in seeking legal and involve various steps. impactful, affecting around 3.0 million and potential for improvement, particularly information and advice. Both formal and 2.6 million people, respectively. Various Many legal problems remain unsolved. regarding stress and negative emotions. informal sources are explored: aspects of these problems are governed Despite Kenyans being very active at the Kenyans suffer a great deal due to both In fact, three out of four Kenyans by laws. Problems tend to co-occur. The time of engaging in a dispute resolution their problems and the procedures they consulted at least one source of average number of legal problems for process, not all of them achieve an undergo. People in Kenya want to see information as a step towards resolution. those who did report at least one is 1.50. In outcome. 54% had not yet reached an justice processes led by a fair, objective This is the one of the highest rates that fact, 22% of the respondents reported 2 outcome for their legal disputes. In other and respectful neutral decision maker, who we have found in our studies across the or more problems. words, around 7.5 million people did not is good at restoring the damage caused by world. Family members and friends are solve their problems. Moreover, about a their problem. Most legal problems are not the most commonly consulted informal quarter of them have given up hope of extraordinary events but are an intrinsic sources, while the police and chiefs are the All in all, Kenyans with low incomes achieving anything at all. This constitutes part of daily life: most commonly consulted sources in the experience more problems on average an urgent area for improvement. Not being Kenyans experience high levels of stress formal sector. People need reliable sources than the rest of the population, they are able to obtain an outcome has tremendous and negative emotions caused by legal of information. Among those who did not also less likely to seek information and consequences for people’s lives. Young problems. In fact, more than 80% told us consult any source, they argue that they advice, as well as less likely to take action Kenyans are the least likely to take action. that their problems affected them to a did not believe anything could be achieved, to solve their problems. Therefore, steps large extent. Their problems affect their or that information would not help them. Different levels of access to justice. towards improving access to justice should livelihoods, and impact relationships and This type of hopelessness needs to be Affluent Kenyans more often rely on consider the most vulnerable Kenyans income. Focusing on the delivery of justice addressed to improve access to justice. private lawyers, and refer to courts first. for frequently occurring legal problems of law in higher proportion than their

184 JUSTICE NEEDS IN KENYA - 2017 185

Recommendations

Picture the whole justice journey: organize all those who can contribute to making a Strengthen the links between formal and dispute resolution. Here we also see a lot justice delivery around the particular particular justice journey together, rather informal justice: design seamless justice of self-action and use of informal justice needs of the Kenyan people than just lawmakers and the judiciary. journeys mechanisms. Without diminishing the We see from the data that a lot of Borrowing from the health sector: the The data supports the critical importance importance of strengthening the formal fairness - both in terms of process and in emphasis would be less on only building of what is listed as one of the key priorities justice system, the informal systems terms of a solution - is provided outside hospitals and educating doctors and in the Sustaining Judicial Transformation can be made stronger. The data shows the so-called formal justice system. So more on preventing and curing the most strategy: a focus on informal justice. where and how. One can also envisage only strengthening the formal justice prevalent diseases. Informal justice mechanisms are an hybrid forms of legal services, where system will not be enough to deal with important source of information and the two work together and complement the demand for justice that emerges resolution for the most frequently each other. Affordable and competent from the data. At the same time, only occurring legal problems. In each of these hybrid providers provide legal advice, focusing on informal justice systems is not areas, the data shows that many users dispute resolution and after-care services. enough either. The data suggests that of justice are active; legal empowerment Achieving that will positively affect millions the perspective for developing policies is high. Six out of ten respondents used of lives in Kenya. needs to be that of a whole justice journey informal sources such as family, friends, for a particular type of justice problem, and elders to obtain information about ultimately leading to a fairness for as many rights and available processes. A lot can situations as possible. Envisage a strategy be done to strengthen informal sources that focuses on developing improved of legal information and advice, building justice journeys for the four most pressing on the high levels of legal empowerment justice needs that emerge from the survey: that is visible. Informal justice mechanisms crime, land, family and employment. Bring are also important when it comes to 186 JUSTICE NEEDS IN KENYA - 2017 187

Place special attention on the most Intensify consistent and thorough data like this one, but also through all kinds vulnerable: provide affordable and collection: ensure accountability and focus of innovative ways, using social media, accessible justice journeys for all on the users of justice open data and other sources. Systems The data also supports the vision Kenya is one of the countries best placed can subsequently be developed that expressed in the Sustaining Judicial globally to embed the voice of the citizen make that data available and actionable Transformation strategy for a focus on into the development of its justice system, for courts, lawyers, ministries, civil society increasing access to justice for the most for two reasons. Firstly, the Constitution, organisations, political parties, and others vulnerable Kenyans, in particular lower some of the laws that implement it, and to use to work on improved services. The income groups. This group has lower the judicial transformation strategies Minister of Justice of Mali is working on levels of legal empowerment: they often adopted thus far are very explicit in an independent Observatory that would do not realize that a problem can have a putting the citizen centre-stage. Secondly, have that function: to annually provide legal solution. The journeys to justice for by commissioning this and other studies, feedback on the functioning of the justice the lowest income groups are often full the leadership of the Kenyan judiciary system, based on data from the experience of huge potholes and often even blocked has demonstrated a receptiveness to the of users. That is a true innovation, made in entirely. It is more challenging for them to idea of developing the justice system Africa, which might also be developed in get legal information and advice and more on the basis of data about the users of Kenya. difficult to reach formal justice institutions. the system. Two inspiring examples of Inclusive justice journeys are needed to institutional design for evidence-based make sure that the vulnerable people can policies are Judiciary’s Performance receive just and fair resolutions whenever Management Directorate and the Court and whenever needed. Just like other basic User Committees. Kenya is well placed to public services - education, healthcare, be a world leader of evidence based, user housing and security, the vulnerable centred development of its justice system. should also have access to basic justice To realize this, a first step would be to care. Another dimension of basic justice develop a network or unit that is devoted care in Kenya is the growing middle class. to systematically collecting such data - As Kenyans become more educated and rigorously and constantly - and making it prosperous into the future, the legal needs available to policy makers, civil society, and will rise. Organising basic justice care is others. This can be done through surveys also an investment into the future. 188 JUSTICE NEEDS IN KENYA - 2017 189

Promote justice innovation: encourage, To truly unlock the enormous potential for build and sustain an eco-system of justice justice innovation that we see in Kenya innovation and technology that supports the design of improvements can be made justice delivery more user centered. This means not only Kenya, the country that pioneered having data (see the data recommendation mPesa, is huge on entrepreneurship and above), but also have mechanisms to innovation. A lot of innovation is possible use that data in the design of better around the justice challenges that emerge procedures. In the IT world this is called from this study. Two shifts are needed to user-centered design. It uses evidence really unlock the potential of technology based, iterative processes to develop and innovation. Firstly, innovation and innovations and it is quite different from information technology should be seen the known approaches in the legal world. as much more than a way to modernize Formalism and legal technicalities should existing procedures. Technologies can not be barriers to justice. Innovative become an integral part of entirely new procedures are based on constant value propositions that improve delivery exchange of information - between all of justice. Smart, scalable and sustainable participants in the justice processes. internet-based platforms can resolve Specifically focus on the exchange many of these problems. ICT platforms between the neutral third parties and the that provide easy and affordable access to users of justice. Find what works and scale competent legal information and advice it up. Share the rewards with justice users when the people need it. We have seen a and innovators. Innovations ecosystems few starting to operate in Kenya already. are also needed. Connect to the fantastic They can also support and enhance dispute innovation ecosystem in Kenya and East resolution processes. They can improve Africa broadly. Designate justice innovation justice administration - automating and budgets. Allow yourself to be challenged preserving records, facilitating information from the outside. Accept experiments, trial flows. They also facilitate monitoring and error. Issuing innovation challenges service quality and holding justice will help to improve existing journeys or providers accountable. The second shift is design new processes. about working methods and ecosystems. 190 JUSTICE NEEDS IN KENYA - 2017 191

About HiiL About the authors

Our mission: Martin Gramatikov By 2030, 150 million people will be able to prevent Head of Measuring Justice or resolve their most pressing justice problems. [email protected] Sam Muller Director/CEO [email protected] Our approach focuses on empowering Furthermore, the JNST offers a cost- innovation in the justice system. We collect effective alternative to monitoring Rodrigo Núñez data about the needs and satisfaction of progress in the justice sector. This Justice Sector Advisor the users of the justice system. We aim to standardised and repeatable approach [email protected] understand how justice works in ordinary leads to economies of scale, a reduction people’s lives and how they fulfil their in operational costs, increased efficiency Martijn Kind justice needs. Our Justice Needs and (time and resources saved), a reduction Quantitative Justice Data Analyst Satisfaction Tool (JNST) is able to track in operational risk and cross-country [email protected] more than 40 elements of the justice benchmarking. We also make the data experience. available to policy-makers through clever Nadja Kernchen interfaces so they can keep working We believe that justice is about justice Research Assistant with the findings. Data gives knowledge, providers in the broadest sense, not only [email protected] creates empowerment, and builds about courts or other formal institutions. accountability. We therefore argue that change needs to happen where justice occurs - recognising The countries we have worked in include: With the collaboration of that many factors that influence justice the Netherlands, Indonesia, Mali, Tunisia, lie outside the realm of ‘traditional’ legal Uganda, Ukraine and UAE. We are currently Giedrius Astafjevas & services. working in Bangladesh, Jordan and Ricardo Lapeira Lebanon . Our target countries for 2018 Measuring Justice Interns To achieve this aim, we rely on international are: Nigeria, Rwanda, and second JNS and local expertise to identify what works studies in Mali and Uganda. best in the context we are in. Errata

Justice Needs and Satisfaction Kenya 2017 13/03/2018

• Page 93: Printed version- First bar from top to bottom in graph “Do you trust the police” says: “Respondents who have experienced a legal problem in the past”, changed to: Respondents who have not experienced a legal problem in the past, together with the correspondent bar length. HiiL Fluwelen Burgwal 58, 2511 CJ The Hague P.O. Box 93033, 2509 AA The Hague The Netherlands Tel: +31 70 762 0700 www.hiil.org E-mail: [email protected]