The Paralegal’s Handbook Paralegal Support Network Table of Contents Chapter 1: How to Use this Handbook Chapter 2: The Role of the Paralegal Worker Chapter 3: Law and Society Chapter 4: Institutions for the Implementation of the Law Chapter 5: The Constitution Chapter 6: Human Rights Chapter 7: Democracy Chapter 8: Elections Chapter 9: Governance Chapter 10: Gender and Development Chapter 11: Gender-based Violence Chapter 12: Employment and Labour Relations Chapter 13: Claims Arising from Personal Harm Chapter 14: Business Relations and Contracts Chapter 15: Land Law Chapter 16: Family Relations and Succession Chapter 17: Crimes Chapter 18: Court Procedures Chapter 19: Dispute Resolution and Conflict Management Chapter 20: Community Mobilization Chapter 21: Children and the Law Chapter 22: Environment and Natural Resource Management Chapter 23: Human Rights Institution Building Chapter 1 How to Use This Handbook Why the Handbook? This handbook has been developed by the Paralegal Support Network (PASUNE). The handbook was developed in fulfillment of the mandate of PASUNE. PASUNE as a network of leading human rights organizations involved in paralegal training has been working towards standardizing the content and methods of training paralegals in Kenya. As part of that process in the year 2003 it developed a curriculum for community paralegal workers. The curriculum has been very useful in ensuring that all organizations involved in paralegal training cover an agreed set of issues in the process of training and that the eventual trainees are of a certain quality. The curriculum however only highlights the areas to be covered. The substance is to be filled during the actual training. The paralegals who are members of the PASUNE network were supplied with this curriculum. They found it very useful. However they also requested for a handbook with basic information on the issues covered by the curriculum. The development of this manual is partly in response to that request. The manual has also been developed for several other reasons. The whole purpose of paralegal training is to equip the paralegals with basic legal skills to be able to help the communities they live in solve their basic legal problems. The trainings are done over a period of time. It is hoped that the paralegals will use the skills they have received to train others and also solve problems that arise within the communities they live in. This handbook has been developed to aid that process. The book will act as a source of reference for the paralegals as they carry out their work. They can also use it to share the knowledge in it with other members of the community and thus enlighten them on the law. Before the development of the handbook several of the organizations carrying out paralegal training had written several manuals and booklets on many of the aspects covered in this handbook. The handbook is however the first of its kind in Kenya. It is the first attempt to cover all the aspects of a paralegal training in one comprehensive publication. Secondly it seeks to harmonize the contents that paralegals need to know into one comprehensive text so that a paralegal can consult it for common legal information. It is also written in plain text to make it easy to understand for the paralegal Who Should use it? This handbook is intended primarily for the use of paralegals. It is also to be sued by trainers’ together with the curriculum and trainer’s guide also developed by PASUNE. It should be noted that paralegalism aims at providing legal knowledge to members of society. The book has therefore been written in very plain and easy to understand manner. It can therefore be used by all categories of people in society. Anyone interested in having basic knowledge about law and legal issues in society will find this handbook very useful. At all times those who use the handbook should realize that the handbook is not a substitute for example for the official laws made by parliament. It has sought to explain the law yes but one should also remember that the official source of the law also exists. The handbook though comprehensive is not the only available material that one 1 needs to read. There are several other materials some appearing in the Bibliography to this handbook that one should read for further knowledge on the law. Structure of the handbook The handbook is divided into twenty three distinct chapters, each covering a separate area of the law. Following this introductory chapter on how to use this handbook, the rest of the book deals with the following areas: The Role of the Paralegal Worker Law and Society Institutions for the Implementation of the Law The Constitution Human Rights Democracy Elections Governance Gender Gender-based Violence Employment and Labour Relations Claims Arising from Injuries Business Relations and Contracts Land Law Family Relations and Succession Crimes and Security Court Procedures Dispute Resolution and Conflict Management Community Mobilization Children and the Law Environment and Natural Resource Management Human Rights Institution Building In each of the chapters the handbook discusses the law and institutions for the implementation of the law. The chapters also highlight the key issues in each area of the law that it covers. The handbook also uses practical examples to explain the legal issues. An effort has been made to avoid legal and technical jargon and where it was necessary to include certain terms, these have been explained. The chapters have also tried to contemplate the kind of problems paralegals are likely to face in the community and sought to give suggestions as to how those issues could be addressed. One should remember that what is contained here is just a guide. It is not the solution to all legal problems possible. How to Use the handbook This handbook should be used as a basic reference material for paralegals and their trainers during training. Paralegals should always consult in when carrying out their duties in the community and they are not sure of what the law provides in a particular situation or how to go about solving a particular problem. 2 The handbook is wide in its coverage. It is not possible therefore nor is it intended to be read continuously from cover to cover. One should read it chapter by chapter and seek to understand what each chapter provides. It has been written in such a way that although the issues covered in the chapters are related one can read one chapter at a time and still get comprehensive information on that particular area of the law. The handbook should be used together with other materials on the law and on paralegal education. The law continuously changes so one should keep in mind that the issues covered in this manual will periodically change as the laws get amended or repealed. While efforts will be made to update the handbook, users of this handbook are advised to also consult the recent legal text like laws of parliament and the constitution so as to be up do date on the legal information. Consulting other materials is also useful so as to complement the information in this handbook. 3 Chapter 2 Paralegals and Access to Justice Introduction Laws regulate all aspects of an individual’s life. Some have even aptly stated that law governs one’s life from birth to death. For this reason it is important that all are aware of the law since it is not something for a select group of people. Secondly the law even makes it compulsory for everybody to be aware of it. This is because ignorance of law is no defense. A person cannot say that their failure to abide by a specific legal requirement was their lack of knowledge of the existence of that rule. The law requires for example that everybody who has an income must file their tax returns. One cannot fail to file their income tax returns and plead that they did not know it was a requirement in law. Despite this legal requirement the reality is such that majority of Kenyans are not aware of the existence of several laws that govern their lives and regulate their conduct. Due to the above realities several people are denied access to justice. The law is also normally expressed in legal and technical language making it difficult for most people to understand. This coupled with the fact that accessing legal services, even the very basic ones, normally involves consulting a lawyer who must be paid professional fees for services rendered makes the ordinary citizen not to access justice. If one has to go to court, in addition to paying lawyers, there is also the issue of court fees to be paid and the reality that courts are normally few and far between thus the issues of transport costs also comes to bear. To redress this anomaly, the concept of paralegalism emerged. Who is a Paralegal? Paralegalism involves the process of training and equipping non-lawyers with basic legal knowledge of the law and legal procedures to enable them enlighten members of their community of their legal rights. A paralegal worker is community based individual, who is not a lawyer but who has basic legal knowledge and skills. Paralegal workers are therefore development workers and community members who educate people about the law or offer basic legal services. Paralegals can refer to persons who are part of the legal process like court prosecutors, court clerks, and probation and children officers. These persons although not lawyers offer essential legal services as part of their work. The second category is those members of the local community who render legal services on a voluntary basis and outside or in addition to their normal work.