Cautious Optimism over Judicial Reforms in Kenya

The enactment of a new constitution in 2010 paved the way for Kenyans to institute much needed reforms in the judiciary. As the country heads for elections, the role of the transformed judiciary in buttressing checks and balances on the legislature and executive and expending justice in a fair and consistent manner cannot be overstated, nor its importance in ensuring post-conflict peace building through its effectiveness in arbitrating for justice and ensuring the rule of law in Kenya.

Published on 21 February 2012 in ISS Today

Irene Ndungu, Consultant Researcher, Conflict Management and Peacebuilding Division, ISS Pretoria

As part of the process aimed at operationalising the new constitution, judicial reforms began to be instituted last year. The process, which has brought some concrete results, has led to guarded optimism that the reforms will breathe new life into a system plagued in the past by a myriad of institutional weaknesses. 

The desire by the Kenyan public for a new constitution has been spurred by decades of dissatisfaction with the judiciary’s performance and susceptibility to impunity. The enactment of a new constitution in 2010, thus paved the way for Kenyans to institute much needed reforms in this critical arm of government. Its function in buttressing checks and balances on the legislature and executive branches and expending justice in a fair and consistent manner cannot be overstated, nor its importance in ensuring post-conflict peace building through its effectiveness in arbitrating for justice and ensuring the rule of law.

The handling of 2007 post-election cases and preceding events was a grave indictment against the judiciary’s ability to effectively administer justice, check impunity, and remain steadfast in the face of political influence. Many rights and fundamental freedoms of Kenyans were violated during this period  and most aggrieved victims did not have confidence to petition the courts over election grievances or human rights violations for that matter.

The weaknesses were further exposed in the Waki Commission set up to investigate the violence. In its findings, the Commission found that impunity within the criminal justice system had adversely impacted on the rule of law and called for urgent corrective measures.

Indeed, four months after assuming office in June 2011, the Chief Justice Hon Willy Mutunga in his progress report lamented that ‘we found an institution so frail in its structures; so thin in resources; so low on its confidence; so deficient in integrity; so weak in public support that to have expected it to deliver justice was to be wildly optimistic…we found a judiciary that was designed to fail.’

Numerous reform initiatives from various judicial committees’ reports including the Ringera, Kotut, Bosire, Kwach reports amongst others, in the past yielded limited success due to a recalcitrant attitude by authorities mandated to implement the reforms. In 2009 a Task Force on Judicial Reforms was set up to offer concrete recommendations on strengthening and enhancing the performance of the judiciary. The Final Report of the Task Force attests to this as well as to a general reluctance within the judiciary itself to reform, and to financial and human resource constraints. The report contains some of the most comprehensive recommendations on judicial reforms, which are incorporated in the new constitution.

The Task Force recommended an integrated approach to criminal justice reforms including the need to address issues of oversight, capacity, accountability and management problems and issues related to coordination with other sectors in the criminal justice system.

In terms of oversight, the role of Judicial Service Commission (JSC) has been strengthened a great deal and its composition widened to include members of the public and legal fraternity. As provided for in the constitution, one of its functions is to appoint, receive cases against, investigate and remove from office or otherwise discipline registrars, magistrates, judicial officers and staff in accordance with an Act of parliament. In the case of judges, the JSC can only petition the President to remove from office a judge accused of misconduct or incompetence. The recent recommendation by the JSC to the President to suspend the Deputy Chief Justice due to issues related to indiscipline and misconduct is a watershed case in demonstrating its commitment towards the reforms. The Deputy Chief Justice has been accused of physically assaulting a guard at a shopping mall, when the guard demanded she undergo routine security screening. A tribunal has been appointed to further investigate her conduct.

With regard to accountability and management, many changes are also being undertaken. The creation of the Judicial Transformation Steering Committee to oversee internal management issues will be useful in this regard. Also, the forthcoming vetting of judges and auditing of judicial staff to determine their competence will also make a significant difference to the reform process. The appointment of three foreign judges, among them former South African Constitutional Court Justice Albie Sachs, in the Vetting of Judges and Magistrates Board is not without controversy but it has also mostly raised confidence in the vetting process.

Judicial powers have also been decentralised, in order to address some on the managerial deficiencies that had resulted in abuse of office and largely contributed to a culture of patronage within the judicial system itself. Corruption within the judicial system was widely pervasive, and poor working conditions and uncompetitive salaries have been attributed to this vice. Increased salaries and introduction of a mortgage scheme for judicial officers are good steps in curbing the vice. The introduction as well of the office of the ombudsman is critical in this respect and Kenyans should take advantage of this opportunity in holding the judiciary accountable. However, although ombudsman offices are important in ensuring accountability, they possess the notoriety of being unobtrusive. Their visibility should therefore be enhanced through awareness raising strategies aimed at the public. This will be critical in stemming corruption related grievances within the judiciary.

Reforms aimed at addressing issues of capacity and backlogs are also numerous. The number of judges in the courts is still low in Kenya relative to its population, hence the number of cases before it. More judges are needed in order to ease the chronic backlog of cases. Currently, the backlog is of over I million cases and some have not been heard for over 30 years. The use of ICT has been one of the successful reforms from past reform initiatives and these have been revamped with the recent digitisation of court documents. The use of ICT will ease access to information for the public as well help curb corruption stemming from ‘missing files’ or records in courts.

Correcting gender and minority imbalances within the judiciary is also critical for reform successes in any sector and the judiciary is no exception. In this regard, the number of women within the judicial system has been increased significantly since last year.  For instance 13 out of the 28 High Court Judges are women and this number is expected to increase once more judges are appointed to the Court. The Supreme Court has 7 judges, 2 of whom are women including the suspended Deputy Chief Justice mentioned earlier. Increasing access to justice especially for the poor and for those in remote parts of Kenya is also crucial.

One of the key pillars to ensuring post-conflict peace building and stability in Kenya is the rule of law and the importance of the judiciary is now more critical than ever as Kenya heads towards elections later this year or early next year as recommended by a recent High Court ruling. Coordination with other reforms within the criminal justice system will also be crucial for achieving sustained success. The Ministry of Justice, National Cohesion and Constitutional Affairs has its work cut out and should ensure coherence in the wider reform processes across the criminal justice sector.

Continued vigilance by Kenyans will be also be important in maintaining success and momentum with the reforms. Sustaining increasing public confidence with the judiciary can however only be achieved in the long run if the courts themselves become increasingly perceived as being independent and impartial in their conduct. For the sake of Kenya, the judiciary should therefore strive to demonstrate commitment to these ideals by being faithful to the Constitution and of uncompromising integrity in executing their judicial mandate.

As identified in Kenya’s development blueprint of 2008-2030 (Vision 2030), enhancement of judicial capacity is important in achieving Kenya’s development objectives. If the reforms taking place are effectively implemented they will result in a well functioning judiciary, which will be as equally important as other organs of government in contributing towards peace and stability in the country and thus bear positively on the socio-political and economic development of the country. The reforms will also have a great impact on the democratic governance of other actors within the security sector.

Demonstrated goodwill from the executive and legislature are also critical to the reform process. One way of making this a reality is by ensuring that the judiciary receives its requisite budgetary allocation and not the often miniscule percentage of what other organs of government get allocated in yearly government budgets.

Transforming entrenched institutional cultures is also not devoid of unwillingness by those affected by reforms to change. In the case of Kenya, such attitudes should not be tolerated, as these will render the reform processes ineffective as experiences from past judicial reform initiatives have unfortunately shown.