Fiscal incentives so as to advance Pro-Bono legal culture in Kenya Concept Note

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October 2, 2020 2:00 pm
October 2, 2020 4:00 pm
Strathmore University   View map

Kenya’s constitution is a transformative charter that sought to ordain a shift from past ethical crises, repression, and authoritarianism to a future characterised by renewed ethical values, respect for human rights and citizen emancipation. This is the context upon which one ought to understand Kenya’s constitutional agenda post-2010. More specifically, the right to access to justice as well as fair trial -in particular the right to legal representation- are two hallmarks of the transformative rights-based philosophy that Kenya’s Constitution adopts. The government has the positive duty to ensure that all Kenyans are able to access justice, and if any fee is required, it shall be reasonable and not impede access to justice.1 However, as a defence for its failure to ensure that it fulfils its Constitutional obligation with respect to socioeconomic rights, the State often invokes the progressive realisation of rights mantra. This, therefore, calls for the development of innovative modes of ensuring that Kenyans from underserved and underprivileged communities can enjoy the promise of the Kenyan Constitution.

Moreover, the pro-bono legal culture in Kenya leaves a lot to be desired for. As the saying goes, ‘a pro-bono lawyer is a poor lawyer’. Therefore, the legal professionals set their sights on cases and opportunities with bigger price tags; thereby leaving the government and civil society to tackle the problem of access to justice. Unfortunately, due to the lack of human resource and financial constraints, these few civil society organisations are finding it impossible to cater for the needs of the many Kenyans who remain unrepresented.

In Kenya, there are law firms as well as advocates who genuinely want to offer pro-bono services but the opportunity cost in of choosing a non- paying client over a paying one may be too high for them. It is clear that the State has been unable to ensure that all Kenyans, particularly those from underserved communities can access justice and are adequately represented. Therefore, this webinar discussions would like to assess the efficacy of enacting a tax incentive system for practising lawyers to take up cases for the underserved and underprivileged communities while at the same time providing for the expenses involved as a deductible expense in their tax filings. This would help them lower their tax liability while advancing pro-bono legal aid work in Kenya.

Given this backdrop, The Strathmore Law Clinic has organised the webinar themed, ‘Fiscal incentives so as to advance the Pro-Bono legal culture in Kenya’ on Friday 2nd October at 2.00pm.
The webinar will entail a panel discussion by representatives from legal practice, government, civil society as well as academia. The webinar will be divided into three main areas and they include the following main talking points.
I. Presentation by Strathmore Law Clinic member on the research.
• Blessing Wanjau
II. An overview of the Pro-Bono legal culture in Kenya
a. Being a seasoned practicing advocate, what has been the experience of law firms regarding pro-bono work? – Mr Charles Kanjama
b. Do law schools and law clinics in particular, have a place in advancing pro-bono legal culture in Kenya and what has been the experience of the Strathmore Law Clinic under your tutelage? -Ms Emmah Wabuke, Ms Anne Kotonya
c. What has been the experience of Civil Society in advancing pro-bono legal culture in Kenya? Are there obstacles and how can those obstacles be overcome? – Amnesty International
III. Fiscal Incentives as a solution for advancing Pro-bono in Kenya
a. Are there any formal incentives in promoting pro-bono in Kenya at various sections of the legal profession, including the Judiciary, Law firms and the Law Society of Kenya just to name a few? – Mr. Kanjama, Ms Emmah
b. Can Kenya’s state of fiscal affairs cater for a tax-related incentive so as to promote probono work? – Mr. Bosire
c. Are there potential weaknesses in implementing a tax related incentive to advance probono in Kenya? How will the implementation of such an incentive look like? Will it include:
i. Coming up with a standard fee schedule for the various types of criminal offences
ii. Having a legislation that will Cap the amount at for example, Ksh 200,000 per year.
d. What would determine the efficacy of such an incentive structure?
e. Are there any other roles that fiscal policy play in enhancing access to justice in Kenya?


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Fiscal incentives so as to advance Pro-Bono legal culture in Kenya Concept Note

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