Judicial Reform in Kenya- Why Courts Matter

Judicial Reform in Kenya- Why Courts Matter-Part I

by

Atunga Atuti O.J

Deliberations on Judicial reforms in Kenya have  ignored the fact that meaningful reform in any institution of governance has to go deeper than change of guard.  In a way the discourse around Judicial reform has  been a little sterile bereft of important considerations.Why is it that the Institution of  the Judiciary in Kenya  has failed to live up to the expectations of Kenyans? is  it  the people who populate this institution or are there deeper impediments? in this two part opinion, I argue that it is both to do with the people and the structural weaknesses of the Institution. But first- why is it that Judiciaries Matter?

Why is Judicial reform critical to the consolidation of  democracy in Kenya? The first  answer: is Legislative. The framers of the Kenyan Constitution made it difficult (almost impossible )to undertake constitutional amendments.Chapter 16 Articles 255,256 and 257 provide for  the methods of effecting constitutional amendments both of which are difficult to muster. This essentially  informed by the myriad changes that were made to Kenya's Independence constitution to the extent  that  its capacity  to expand space for democracy and promotion of human rights was eroded. It is both hard to  to attain the requisite numbers  to undertake  amendments via parliamentary initiative, so is any attempt through popular vote. In essence the arena for Constitution Amendments will be undertaken via the interpretation of the various provisions by the Supreme Court. Law making  through the Judiciaries is not a new phenomenon. A lot of the amendments to the American Constitution have been made by the American Supreme Court. In situations where certain provisions of the Constitution are not in sync with the aspirations of the  citizens, the Supreme court may be called to give interpretations and especially where parliament as is constituted today and will most likely be after 2012, will not have a dominant party able to undertake amendments on its own. On the other hand when, as is being witnessed today, where Members of Parliament are acting  truant  and miscreant regarding their tax obligations, the Supreme Court will be called upon to protect the Constitution and public interest.

The second reason  is  Human Rights.

The Judiciary is the foremost institution that has the capacity to offer redress for, deal with, sanction and punish perpetrators of gross human rights violations and offer justice for the victims. But the Kenyan Judiciary has often  failed on this account. To take one example, the recurrent clashes that have bedeviled this country since 1992 have never been put to rest due to lack of  a credible judicial process that could offer redress to  the victims and mete punishment to the perpetrators. The present clamour for  “Justice made in the Hague” attests to the  lack of  capacity, confidence and faith in our Court system to  offer meaningful respite for those affected. But more important in this regard  there is the  expectation  that the  Judiciary will re-actively redress  human rights violations and  pro-actively as a key pillar in the  active promotion of social justice by affirming the provisions of our Bill of Rights. The Bill of Rights makes robust provisions in  respect to Socio-economic and Cultural Rights  whose enforcement the Judicial system will be tested. Finally, the judiciary has an important role of  inculcating a culture of human rights through its pronouncements and especially on the newer provisions in the Bill of Rights pertaining to  the rights to health, housing, food as well as a range of environmental rights in era of global environmental change. As it were a number of these rights are currently being tested in the courts of law. Recent causes by the Civil Society actors pertaining to the right to housing  and judicial pronouncements against forced evictions attest to the growing role of the judiciary in the protection and promotion   of human rights.

Further, the Judiciary has a key role to play in promoting  law and order and crime prevention. Many cases of extra-judicial killings for example  have been documented in Kenya over a long time and especially in the past ten years. Many of them have been due to the fact that the Judiciary has consistently not been  forthcoming in  settlement of  disputes, punishment of wrong-doing, instituting a sustainable framework for human security and guaranteeing citizen safety. Effective functioning of  our society and especially that of  government institutions depends on a well functioning judiciary. This has not been the case.  We have several reports among them  the one by the well respected Prof. Philip Alston which have not been acted on. In other countries, such reports would make governments unravel but the mere fact that nothing noteworthy has come out of such well documented and evidential reports only goes a long way to illustrate the  the contention that citizens and institutions of government lack faith in judicial processes. It is hoped that the separation of the Prosecutorial arm from 'mainstream' Judiciary in the Office of the Directorate of Public Prosecutions will work to redress this discrepancy

The huge backlog of cases in our court system, the  lack of predictability, stability and security for property rights and contracts has often been cited as key deterrents to more  foreign and local investments.  Laws exist on economic crimes, corruption, money laundering, tax evasion and organized crimes, which distort the economy and market functioning. These  legal frameworks  in turn depend on courts to enforce them. But available evidence indicate  that the courts have played roles in obstructing the resolution of these cases. Long running economic crimes and corruption cases which  have defied closure and courts have been instrumental in heightening their confusion and complexity.

 Past attempts at effecting Judicial reforms in the so called radical surgery of 2003 while  ostensibly motivated by the   overwhelming desire to deal with corruption in the judiciary that was feeding into the rot in the wider society. This was never to be  because  the Judiciary has since operated in a business as usual manner and any attempts at reforms ended up being an exercise in modernization than reform.

A recent ruling by the High Court on President Kibaki's Judicial nominations further illustrates the often neglected  function of the Judiciary- that of entrenching political accountability and good governance. Courts in this respect perform the role of stopping abuse of office through entrenching due process, providing an avenue for horizontal accountability for those who hold political offices, holding the high and mighty to account on how they expend their powers and responsibilities. This function  better illuminates  how the Courts ought to provide sanctions and entrenching the rule of law. But such well conceived decisions have been more noticeable in their dearth than abundance. In many similar past references the judiciary has acted compliant than questioning. In situations like this, where the legislative, electoral and political class is in flux and is short on morals,  memory and  accountability-short on everything-Courts must step in  by steadfastly demanding transparency in the management of public affairs.

In the ongoing debates  on the reform of the Judiciary, it is important to take into account the multifaceted roles of Courts in promoting  a culture of human rights, redressing their violations, promoting law and order, supporting economic development and poverty reduction and  holding other arms of government to answer for their decisions. Courts must present a bulwark against encroachment of these values by the executive and legislative arms of government as well as other elements in society. The debate on the nominations to fill key Judicial offices has been sterile in respect to responding to core issues that lie at the heart of the  New Constitution in respect to  the reform of this key institution of governance. In essence, the ongoing discourse is producing more heat and dust rather than illuminating the core of our Judicial immolation. The issue was never whether the president or any other arm of government errs in the discharge of their duties but whether the Judiciary has the spine to sanction and  remedy  such situations.

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Atunga Atuti O.J is the Chief Executive Officer, The East African School of Human Rights. email:

eajourna@email.com