In Kenya, thousands of prisoners are appearing before courts without legal representation, with no one to protect and defend their rights. It has become its own kind of epidemic. Kenya currently holds approximately 59,000 adult prisoners. Of these, over 22,000 are on remand — legally presumed innocent, awaiting trial without any legal support.
Walk into any magistrate court in the country and you will see a trained advocate as the judge, a trained advocate as the prosecutor, and pitted against them both, a layman who is vulnerable and most likely poor. The accused is probably traumatized from the arrest. He is in a room that is all business, expected to keep pace with these professionals, yet his life is on the line — and by the end of the day, we are meant to say that justice was done. Is this fair? When a court only gets to hear one side of the story, it cannot. When you speak to prisoners, many claim to be innocent and say they do not understand how they were convicted. They did not understand what elements of the offence had to be proved. They did not cross-examine the witnesses. They were not aware of their available defences.
Article 50 of the Constitution of Kenya provides for the components of a fair trial, among them the right to legal counsel. It goes further to provide that where an accused person cannot afford to hire legal counsel, the state must provide one. But in practice, this right exists more on paper than in reality. Kenya’s criminal justice system is, by its own admission, overwhelmed with indigent, unrepresented defendants — mostly young, poorly educated pretrial detainees who have no understanding of the criminal justice process and no legal representation, leaving them with only a limited enjoyment of their constitutional right to a fair trial. The National Legal Aid Service, the body created under the Legal Aid Act, 2016 to operationalize this right, is barely funded.
This gap is detrimental to many young people. Consider what happens when an unrepresented young man is arrested — perhaps simply picked up in a police sweep — and finds himself on remand. He cannot afford bail. His case is adjourned, again and again, often because the arresting officers never appear in court to give evidence. Days become weeks. Weeks become months. Then a prosecutor offers him a deal: plead guilty, and you can go home today with a non-custodial sentence. He does not know what plea bargaining means. He does not know that accepting a guilty plea means a criminal record that will follow him for life. He does not know that the state’s evidence may not be able to support a conviction. He only knows that he has been on remand for six months, his family is suffering, and the man before him is offering a way out.
To be sure, the justice system cannot be faulted solely for the existence of inequality within society, nor can every case of an unrepresented accused be attributed to deliberate neglect. Courts must operate within the constraints of limited resources, growing caseloads, and systemic pressures. But these limitations cannot justify a situation where thousands of individuals face the full force of the law without understanding it or being able to defend themselves. A fair trial is not merely about procedure — it is about meaningful participation. Where one side is trained, resourced, and represented, and the other is not, the scales are not just imbalanced; they are fundamentally tilted. A trial without representation is unfair, and it is constitutionally compromised.
To balance the scales of justice, the state should fully fund the National Legal Aid Service, which would in turn ensure that every accused person has access to an advocate — and would create jobs for the many young lawyers entering the profession. The Law Society should take an active role in ensuring the quality of those services and establish a duty advocate at each court station. Even within its current resource constraints, the Legal Aid Service could adopt a prison-based paralegal programme to ensure that every accused person has received legal guidance before appearing in court.
A justice system that only works for those who can afford it is not a justice system at all; it is a privilege.
Miriam Wachira is a lawyer, access to justice advocate, and the founder and executive director of Justice Nest. She is a Public Voices Fellow Tackling Poverty, a partnership of Acumen and The OpEd Project.
