LEGAL INFORMATION SYSTEM IN KENYA

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1 LEGAL INFORMATION SYSTEM IN KENYA Presented By Japhet Otike Dept. of Library and Information Studies School of Information Sciences Moi University, Eldoret Key Words: Legal information Kenya; Government Libraries; law libraries Kenya; law court libraries; law reform libraries; academic law libraries Introduction The legal information system in Kenya has greatly been influenced by the colonial history. Kenya was colonised by Great Britain in Since the colony did not have its own code of laws, the British Government opted to use English and Indian laws. These laws have since been amended or replaced by subsequent Kenyan laws. Although Kenya has managed to indigenise most of its laws, it still relies heavily on English law and in particular, the English case law. This equally applies to all Commonwealth states. The result of this development has been heavy reliance on British publishers for most of the information materials required in the country. Unfortunately, Kenya cannot opt for materials from non-commonwealth states because of disimilarities of the legal systems. On the other hand, Kenya cannot be self-sufficient in the supply of legal information materials on account of the limited market for locally published materials. Most people prefer to use libraries than acquire their own copies. This has tended to discourage legal scholars and publishers from writing books or journal articles for the local market. This is a problem that is characteristic of much of the third world states of the Commonwealth. Composition of the Legal Information System The legal information system in Kenya falls into four categories: a) Academic law libraries b) Law court libraries c) Government departmental libraries d) Law firm libraries a) Academic Law Libraries The academic law libraries are owned and run by institutions of higher learning. They include libraries in law faculties in universities offering law programmes.

2 The University of Nairobi, which was until 1970 a constituent college of the former University of East Africa, started its own law faculty in July 1970 to meet the growing needs of the legal profession in Kenya. Its law collection is and has never been as comprehensive as that of the University of Dar-Es -Salaam. Despite this, it remains the leading academic law library in the country. In 1994, the University of Nairobi served as the sole training ground for legal professionals in Kenya. However, with the increased demand for lawyers and the need to provide more university places for increased number of school leavers, a second law faculty was started at Moi University in From a humble beginning with a skeleton staff, the law school has made significant strides in legal manpower training in the country. The library collection is small but growing. Since 2005, other universities have joined the band wagon in offering undergraduate law programmes. Among these are Kenyatta University, Catholic University of Eastern Africa, and Strathmore University. Law programmes are pretty expensive to undertake. Law libraries require significant investment both in information resources and information personnel. Most universities, for instance, do not have fully qualified law librarians. In the absence of the services of these specialised personnel, the services offered by these libraries could be seriously affected. A legal information specialist should in addition to library science qualification, have a first degree in law. This kind of people are still lacking in the country. b) Law Court Libraries Court libraries are to be found in the Supreme Court, Court of Appeal, High Court and to some extent, Chief Magistrate s Court stations in the country. They exist to provide information support to the bench as well as the bar. The Supreme Court of Kenya has perhaps the oldest special library in Kenya to-day. It was established in Mombasa in 1895 to assist in the administration of justice in the then East African Protectorate. It caters for the immediate needs of the judges and advocates. The entire Supreme Court library system has a total collection of over 60,000 volumes. In addition to the main library in Nairobi, the system has branch libraries in Mombasa, Nakuru, Nyeri, Eldoret and Kisumu. Attempts are underway to upgrade the collections in other major court stations in the country. The Court of Appeal has its own library. The Court was fortunate to inherit the collection of the former Court of Appeal for East Africa that existed until Although its collection is pretty small compared to that of the Supreme Court in Nairobi, it is for all intents and purposes, the most comprehensive and up-to-date law library in East Africa. Its collection is jealously guarded. It is used only by the judges of the Court of Appeal. c) Government Departmental Libraries Law libraries are also to be found in government ministries and departments. Among them is the law library at the Attorney-General Chambers at Sheria House in Nairobi. The A-G chambers host a variety of activities from legal litigation to advising the government on issues of law. The law library exists to support these activities. The library was established in It has a rich collection on practitioner s law. The library like many government libraries, has been having funding problems which affected the currency and comprehensiveness of its collection.

3 Another law library in this category is the library of the Law Reform Commission. The law Reform Commission was established in 1982 as a department in the A-G s Chambers. The purpose of the Commission is to review the Laws of Kenya to ensure their systematic development. The department has a small establishment of legal professionals. The library exists to provide information support. d) Law Firm Libraries In the developed Commonwealth states, most law firms have their own libraries to support legal research. Unfortunately, this is not the situation in Kenya. Very few private law firms can afford basic law library collections. Although advocates generally make excellent financial returns, many are hesitant to invest in law libraries. Lawyers consider law libraries expensive overheads. Because of this, additional pressure continues top be exerted on court libraries which are already overstrained by the number of judicial staff who make use of their services. Only a limited number of law firms have set up what can be described as working law collections. The collections are aimed at meeting immediate information needs while leaving court libraries to serve as libraries of last resort. These collections are organised by law clerks. The collections comprise the main statutes and subsidiary legislation, basic law books, legal reference works, such as dictionaries, digests and unreported judgements of the High Court and Court of Appeal. Where the services of court clerks do not exist, part-time services of experienced personnel from organised law libraries are usually solicited to keep the statute collection up- to- date. Among law firms with good law collections is Hamilton, Harrison & Matthews, This law firm has perhaps the best law collection in East Africa followed by Kaplan & Straton, Daly & Figgs, Archer &Wilcock, etc. Users of Legal Information Legal practitioners are among the mojor users of legal information. Legal practitioners comprise judges, magistrates, state counsels and lawyers in private practice commonly known as advocates. Lawyers make use of information for various purposes. Judges require information to assist them to preside over cases before them in court. Judges need information to deliver accurate and fair judgement. Justice must not only be done, but must be seen to be done. To do this, he/she may need to consult a number of sources. Magistrates preside over cases in the subordinate courts. They too, require information to dispense justice. Although many of them do not require as much information as judges, they still need information for the daily performance of their work. State counsels work in the Attorney-General s Chambers. A number of them are involved in criminal and civil litigation on behalf of the government. Their ultimate aim is to win the case. In this regard, a lot of preparation is done. Without information, there is no way they can survive. Advocates are major users of information. Their survival in legal practice greatly depends on their achievements at the bar. Successful advocates are closer to their law libraries than any other professionals. That is why lawyers are considered second only to historians when it comes to serious reading! However some researchers dispute this. They argue that only the young lawyers do serious reading and that the elders

4 rarely read. They rely heavily on their considerable experience at the bar. Many of them employ the services of young or apprentice lawyers who do much of the digging for them. It is argued that only the academic lawyers do any serious reading. The point being that academic lawyers do delegate legal research. Furthermore, they must remain abreast with developments in their area of specialisation. Perhaps the most serious users of information are trainee lawyers on pupilage. Since these people can not practise, they spend much time carrying out legal research for their masters. Advocates generally consider the trainee lawyers a great asset. Advocates use them to perform much of the preliminary information searching while they attend to more serious issues. The trainees, on the other hand, take advantage of the opportunity to build up their understanding of the law which is crucial for a successful future practice. Law students are also frequent users of law libraries. They need information to catch up with their studies; to carry out assignments; to revise for exams; and to keep abreast of legal developments. Students require academic materials as opposed to practitioner s law. The literature may comprise text books on general principles of law, law journal, reference materials, legislations and law reports. Occasionally case books may be used instances where case law is hard to come by. The effectiveness of legal information provision in Kenya At independence in 1963, most government funded institutions and departments had comprehensive and up-to-date law collections. The libraries were staffed by the British expatriates. As the expatriate staff left, arrangements were made to train indigenous staff to take over from them. The libraries were adequately funded. This was based on the understanding that a badly funded and staffed law library has a serious effect on the administration of justice. That wrongful decision by the court can result in the miscarriage of justice. A law library is the heart of the legal profession. While other professions can afford to do without reference to any information source, legal professionals can not do so even for a single day. Any decision they make, argument they present or remark they make must be supported by legal authority. The legal authority must either be produced or quoted as it appears in the legal document. In short, without access to legal information, a judge cannot pass judgement, an advocate cannot represent or defend his/her client, a magistrate cannot listen or decide on a case. If a door to a law library is closed, the entire legal profession is paralysed. Unfortunately, for one reason or another, decision makers in this country have not realised the importance of a law library. Law libraries like other libraries in the public service have not been accorded adequate funding. This development has had a negative effect on the acquisition and dispensation of information. Since law libraries are among the most expensive information services to maintain, crucial materials such as law reports, foreign statutes, basic reference materials and law journals are in short supply. Information personnel specially trained by the colonial government to run the services became frustrated and left for better paying jobs. The excellent legal collections left behind have either become outdated and therefore in need of replacement, or have been vandalised by members of the profession keen to start their own practice. As for the academic law libraries, the increase in student intake has not

5 been matched by corresponding increase in library budgets. This has seriously strained the performance of the information services, making book mutilation and theft by users the order of the day. In view of this, it appears law libraries are being pushed into inevitable situation of extinction. Some libraries have endeavoured to survive by seeking foreign assistance in the form of book donations. While this may be considered a welcome development, it is so far, too little too late. Furthermore, some donations may not be relevant to the law applicable in Kenya. There is also a tendency for donors to donate outdated titles or editions. But we must thank the donors for whatever assistance they give as the blame for the current situation rests squarely in the hands of policy makers. Other related references: 1. Japhet Otike (1997). Legal information provision in East Africa. Law Librarian, Vol. 28(1), pp Japhet Otike (1997). Legal information needs of the general public with special reference to developing countries. Library Review, Vol.46 (1&2), pp Japhet Otike (1996). Provision of legal information to rural populations in Anglophone Africa, Vol. 46, pp Japhet Otike and Graham Matthews (2000). Legal information needs of lawyers in Kenya: a case study. Library Management, Vol. 21(4&5), pp