1. Introduction
This blog looks critically at the independence of the National Legal Aid Service (NLAS) in Kenya ten years after the Legal Aid Act 2016 was enacted. Dominant literature on the NLAS has addressed access to justice and funding issues, but there has been insufficient consideration given to whether the institution is independent in practice. This blog, for this reason, aims at filling the void in exploring how far NLAS is independent from external influence.
The blog first examines the funding structure of the NLAS that demonstrates limited independence, particularly on the reliance on government funding and donor support. It then considers the risks that political involvement in the appointment of the NLAS Board may have on its autonomy. Finally, it examines how these issues may affect the ability of NLAS to provide fair and unbiased legal aid services. The blog will also include some suggestions as to how the independence and effectiveness of NLAS could be enhanced.
In 2007, the Government of Kenya, through the defunct Ministry of Justice, National Cohesion and Constitutional Affairs, now the Department of Justice in the Office of the Attorney General, established the National Legal Aid and Awareness Programme (NALEAP).[1] The main aim of setting up NALEAP was to create awareness amongst the Kenyans about the public about legal aid; and provide legal advice and representation mainly to the poor, marginalised and vulnerable in Kenyan society.[2] The NALEAP programme facilitated the development of the draft Legal Aid Bill, which was later enacted into law as the Legal Aid Act, 2016 thereby laying the foundation for the establishment of a structured and sustainable National Legal Aid Service in Kenya with the mandate of mainstreaming the provision of legal aid services in Kenya.[3] The NLAS is essential in ensuring equality before the law, right to fair trials and non-discrimination as envisaged in Articles 27, 48 and 50 of the Constitution.
2. Legal and Institutional Framework of NLAS
The legal framework governing NLAS is a combination of constitutional mandates, statutes and subsidiary legislation. At its apex this institution breathes life to article 19(2), 48, and 50(2)(g) and (h), which focuses on social justice, access to justice and fair hearing.[4] Also, the Legal Aid Act, 2016 which primarily provides the statutory framework governing the provision of legal aid in Kenya. Additionally, this framework relies heavily on delegated legislation, most notably the Legal Aid Code of Conduct for Accredited Legal Aid Providers, 2019 and the Legal Aid (General) Regulations, 2020.
The Legal Aid Act established NLAS as a body corporate whose succession is perpetual and can sue and be sued in its own name.[5] Structurally, NLAS is governed by a Board composed of representatives from both State and non-state actors and a Secretariat headed by a Chief Executive Officer.[6] Together, the Board and the Secretariat are mandated to manage the nationwide legal aid programme that is cost-effective, accessible, sustainable, trustworthy and accountable.[7]
3. Independence of the National Legal Aid Service
Institutional independence is essential for NLAS to operate with neutrality, fairness and credibility, particularly when handling cases involving state actors or politically sensitive matters. Independence safeguards public confidence in legal aid services and ensures that beneficiaries receive unbiased legal assistance. NLAS relies on advocates seconded by the Attorney General, thus the state can orchestrate the sudden reassignment, transfer, or intimidation of lawyers who push back aggressively against the state in politically sensitive cases.[8]
4. Threats to Independence
- Lack of constitutional independence
NLAS is a state corporation operating under the Department of Justice within the Office of the Attorney General and Department of Justice. In contrast to constitutional commissions, such as the Kenya National Commission on Human Rights, the legal aid body is not accorded the constitutional safeguards provided under Chapter 15.Consequently, it lacks the explicit protection from interference or direction by any individual or authority that is guaranteed to such commissions.[9] Early versions of the Constitution proposed the establishment of an independent Public Defender's Office, supported by state funding, to offer free or affordable legal services to individuals who could not meet the costs of legal representation.[10] However, this proposal was ultimately excluded, as neither the Parliamentary Select Committee nor the Committee of Experts deemed it necessary to retain.[11]
- Fiscal Dependency
The right to legal aid is ultimately tested not in statutes, but in the willingness of the State to sustain it with tangible support. Beyond legal promises lies the quiet but decisive question of funding, the lifeblood that enables justice to reach those who would otherwise be excluded by poverty. This commitment in Kenya is founded on the Legal Aid Fund which is a statutory tool that aims to provide meaning to the access to justice.
Part V of the Legal Aid Act provides for the establishment, administration and operation of the Legal Aid Fund, which is overseen and managed by the National Legal Aid Service (NLAS).[12]
This fund's primary source of funding is the government budgetary allocations through the national budget.[13] In addition, NLAS may receive grants, gifts, donations, loans or other contributions made to the Service, together with funds obtained from any other lawful sources including partnerships and contributions, subject to accountability requirements.[14]
The Legal Aid Fund is utilized to meet costs arising from the implementation of the Legal Aid Act by the NLAS. This fund covers expenditures related to representing legal aid beneficiaries, payment and reimbursement of legal aid providers for services offered, and operational expenses of the NLAS as authorized by the NLAS Board.[15]
This financial reliance of NLAS on the State presents a big risk to its autonomy. For example, when the retired CJ David Maraga said the President actualised his threat to 'revisit' the Judiciary. On the 'revisit' comment, Maraga cited drastic budget cuts for the Judiciary as one of the indications of the infamous remark by President Uhuru Kenyatta coming to play. "The development vote (a name for the Judiciary budget) was normally about Sh1-2 billion per year, however, after that we were given Sh50 million," Maraga said.[16]
The state-backed Legal Aid Fund is the main financial mechanism, but the lack of adequate funding by the National Treasury has resulted in a significant implementation gap. Thus leading to Kenya’s existing legal aid funding framework being characterised by a structural over-reliance on external, donor-driven support rather than a secure, state-funded system.[17] This heavy dependence gives rise to concerns about its long-term sustainability.[18] This is due to funding difficulties and personnel costs make it hard for non-state actors to sustain their justice centres over the long term.[19] Also, this reliance compels organizations to align their programmes with donor priorities, often at the expense of developing locally driven responses to domestic legal challenges.[20]
- Structural and Operational dependency
Priorities and operations can be indirectly affected by budgetary control. NLAS service is exposed to serious politicking risks especially politicisation of its operations and this can undermine its operating independence and objectivity.[21] Additionally, appointment processes for board members may raise concerns regarding political patronage, potentially compromising institutional neutrality.
In the course of the work, the NLAS could also be subjected to pressure or interference from the government related to cases of government interests.[22] For instance, in March 2021, the Kenyan government directed the United Nations High Commissioner for Refugees (UNHCR) to come up with a plan on closing the Kakuma and Dadaab refugee camps. [23] Section 36 of the Legal Aid Act acknowledges refugees as persons who have a right to receive legal aid from the State.[24] But it does give rise to questions as to the independence of legal aid services. When the refugees object to decisions or actions of the government, there may be concerns about the capacity of NLAS, which is largely government funded. However, by relying on government funding, the fact that legal aid services may appear to be biased and public confidence in their impartiality may be eroded even if there is no actual interference. This underscores the importance of institutional independence to make sure that refugees and other vulnerable groups are able to receive legal assistance without pressure.
Also, reputational risks, which might be caused by negative publicity or allegations of favouritism, might be used to shake the confidence of the population in the institution, thus questioning its credibility and overall success in providing legal assistance services.[25]
5. Recommendations
The concept of entrenched constitutionality of NLAS should be elevated to a constitutional body as in the case of the Kenya National Human Rights Commission as part of Chapter 15. This would give it explicit protection against any interference by any individual or authority, and would also make it more robust in terms of the independence of its legal basis beyond the current statutory one.
The separation of the Office of the Attorney General NLAS from the Department of Justice and the Office of the Attorney General should be structurally removed. This separation is important because the Attorney General's job is to represent the State, and if the Attorney General is involved in cases against a government official there is an inherent conflict of interest. It would be very beneficial if it were operated within a neutral, independent institutional structure.
A Non-Interference Clause in the Legal Aid Act 2016 should include a clear statutory rule that any government authority, ministry or officer is not allowed to direct, influence or interfere in the operation of NLAS or any decision it makes. This would give a clear legal chilling effect on political manipulation and give a direct legal remedy to NLAS when its independence is compromised.
6. Conclusion
A decade after the Legal Aid Act 2016 and the independence of the National Legal Aid Service is still a fundamental unfulfilled promise. It remains structurally under the tutelage of the Office of the Attorney General, is constitutionally unprotected and remains chronically dependent on government funding, which renders its ability to provide impartial legal assistance to the poor vulnerable of Kenya's population questionable. Bold and radical policy measures, including those in the constitutional arena such as constitutional entrenchment, structural separation and the implementation of a strong non-interference doctrine, are necessary to help NLAS better fulfil the constitutional rights to access to justice and fair hearing (Articles 27, 48 and 50). The independent NLAS is not discretionary, but a necessary component of rule of law in Kenya.
* LLB Finalist at Kabarak University
** LLB Finalist at Kabarak University
[1]Office of the Attorney-General and Department of Justice, ‘National Legal Aid Service’, https://www.statelaw.go.ke/departments/national-legal-aid-service/ (accessed 15 February 2026).
[2] Office of the Attorney-General and Department of Justice, ‘National Legal Aid Service’.
[3] Office of the Attorney-General and Department of Justice, ‘National Legal Aid Service’.
[4] KR Omedo, ‘The Efficacy of the Legal Aid Act 2016 in Enhancing Access to Justice’ (2021) 1 Egerton Law Journal 180, 180 KR Omedo, ‘The efficacy of the Legal Aid Act 2016 in enhancing access to justice’, 1 Egerton Law Journal (2021) 180.
[5] Legal Aid Act (No 6 of 2016), Section 5.
[6] Legal Aid Act, Section 9.
[7] Legal Aid Act, Section 7(1).
[8]The Role Of NLAS In Advancing Access To Justice For Marginalised and Vulnerable Persons https://youtu.be/IBIUIlI6eFk?si=WYeucNBD_bYDWIYf
[9] Yash Pal Ghai and Jill Cottrell Ghai, Kenya's Constitution: An Instrument for Change, 2nd edn, Katiba Institute, 2021, 96.
[10] Ghai and Ghai, Kenya's Constitution: An Instrument for Change, 93.
[11] Ghai and Ghai, Kenya's Constitution: An Instrument for Change, 93.
[12] Legal Aid Act, Section 5.
[13] Legal Aid Act, Section 29(2).
[14] Legal Aid Act, Section 29(2).
[15] Legal Aid Act, Section 30.
[16] The Star, ‘Uhuru’s “revisit” comment was definitely implemented – Maraga’, The Star, 14 January 2021, available athttps://www.the-star.co.ke/counties/nyanza/2021-01-14-uhurus-revisit-comment-was-definitely-implemented-maraga (accessed 6 June 2026).
[17] Kenyan Section of the International Commission of Jurists, ‘A cost-benefit analysis of legal aid in Kenya’, ICJ Kenya, 2022, 40.
[18] Kenyan Section of the International Commission of Jurists, ‘A cost-benefit analysis of legal aid in Kenya’, ICJ Kenya, 2022, 40.
[19] Kenyan Section of the International Commission of Jurists, ‘A cost-benefit analysis of legal aid in Kenya’, ICJ Kenya, 2022, 20.
[20] Nanjala, ‘Determinants of effective legal aid service delivery in Kenya’, 279.
[21] National Legal Aid Service, ‘Communication, Media and Public Relations Strategy (2022–2027)’, Office of the Attorney General and Department of Justice, 2022, 8.
[22] The role of NLAS in advancing access to justice for marginalised and vulnerable persons, SpiceFM, 22 April 2024, available at https://youtu.be/IBIUIlI6eFk?si=WYeucNBD_bYDWIYf (accessed 8 June 2026).
[23] The Sentinel Project, ‘Closing Kenya’s Kakuma and Dadaab refugee camps: Thoughts from the ground’, ReliefWeb, 30 June 2021, available at https://reliefweb.int/report/kenya/closing-kenya-s-kakuma-and-dadaab-refugee-camps-thoughts-ground (accessed 8 June 2026).
[24] Legal Aid Act, Section 30.
[25] National Legal Aid Service, ‘Communication, Media and Public Relations Strategy (2022–2027)’, 8.
