Abstract:
Kenya’s Constitution seeks to trigger a shift from past ethical crises, repression, and authoritarianism to a future characterised by renewed ethical values, respect for human rights and citizen emancipation. The right of access to justice as well as fair trial - in particular the right to legal representation - are two hallmarks of the transformative rights-based philosophy. The government has the positive duty to ensure that all Kenyans can access justice. However, as a defence for non-performance in meeting this obligation, the State often invokes the ‘progressive realisation of rights’ mantra. This is, in principle, an implicit concession of the lack of access to justice, calling for the development of innovative modes of ensuring that underprivileged Kenyans can enjoy the promise of the Kenyan Constitution. This study explores a new avenue to enhance pro bono legal services in Kenya, incentivised pro bono. The definition of incentivised pro bono adopted entails the use of various motivating factors that encourage duty bearers within the legal sphere to carry out legal aid. It is unique in that it uses a ‘meet me half-way approach’ and targets two key duty bearers in the legal sphere - lawyers and students. The incentives explored by this study include the use of CPD points and tax incentives for lawyers and the implementation of credit systems within law schools to encourage law students to play an active role in legal clinics.
