Universality of Human Rights

This school of thought is of the view that certain human rights and
freedoms are universal and inalienable to the human race. It is from this principle of universality that the
Universal Declaration of Human Rights (1948) was passed in an effort to codify
and institutionalize the said fundamental rights and freedoms. One of the many
fundamental rights and freedoms recognized by the Universal Declaration for
Human Rights is the right to access justice. It posits verbatim that, ‘everyone has the right to an effective remedy by
the competent national tribunals for the acts violating the fundamental rights
granted to him by the constitution or by law.’ 18 Further epistolary jurisdiction is already in application in India, as
a mechanism of accessing justice. India and Kenya have very many features in
common. First and foremost they are both British colonies and as such they both
apply the common law system. Secondly, Kenya is faced with similar challenges
as those facing India. According to the World Bank poverty index Kenya is
ranked as a low income level with 34-42 % of its population living below
poverty line, India on the other hand of the 872.3 million people living below
the poverty line worldwide 179.6 million(l7.5%) live in India.!” Poverty
is the biggest impediment to accessing to justice. Considering the above two similarities and the efficacy of epistolary jurisdiction in India shows the need for Kenya to
adopt it in solving its access to justice puzzle.


Contract Theory

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To best understand epistolary jurisdiction, one must first understand the concept of access to justice. John Rawls
envisages a world where actors – behind ‘a veil of ignorance’ rendering all
parties equal – determine the principles of the institutions governing their
social institutions. In his institution based theory of justice he
asserts two central principles. First, each person has the right to the same
liberties as those received by others. Second, if there are to be social and
economic inequalities, they must be attached to offices predicated on fair and
equal hiring and must be advantageous to the worse off. Amartya Sen in The Idea of Justice presents an alternative interpretation of access to justice. Instead of
focusing on Institutions, Sen focuses on the behaviour of people in a society. He suggests comparing different communities facing
similar challenges and understanding the mechanisms that provide them with more
just concerns. This approach moves the focus away from
institutions and is concerned with individual or communities “actual realizations and commitments. The
comparative approach also recognizes that different reasonable principles of justice exist and is
thus a more flexible construct when trying to understand justice as perceived
by a different culture or community. Thomas Hobbes a proponent of the social
contract theory posits that in the original state of nature, man lived a short, nasty and brutish life, governed by the rule of the jungle ‘survival for the
fittest’. To escape this state of nature, a government is established by a social
contract. Whereby individual persons come together, surrender some of their rights and freedoms to a more powerful organ – the
government. Through this social contract, the ‘Leviathan’ (government) is tasked with securing those rights and freedoms.” Among the rights entrusted to a
government is ensuring accessibility to justice.” Whereas the government
has made several advancements towards improving access to justice, a lot more
needs to be done as many Kenyans still find it difficult to access justice
through the available mechanisms. This depravity has resulted to the
continued application of other mechanisms some of which are repugnant to
justice and morality.


Utilitarian Theory

The proponents of this school of thought
mainly Jeremy Bentham and John Stuart Mill posit that laws are socially
justified if they brought the greatest happiness or benefit to the greatest
number of people. The utility of epistolary jurisdiction as a mechanism to
access justice by and large solves problems such as backlog of cases, delay in
the delivery of justice and the cost of accessing justice.

As expounded on earlier, a considerable number of Kenyans face
difficulties accessing justice. Further, it is in the best interest of Kenya
and society as a whole that justice delivery be fastened and the cost incurred
minimized hence benefiting the greatest number of people


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