Why Courts Matter: Challenges for Courts in Kenya

Why  Courts Matter: Challenges for Courts in Kenya 

(Part II)

 

Atunga Atuti O.J

In the First part of this two part commentary we delved into why courts matter in our efforts at entrenching democracy and constitutionalism. In this part, we examine the impediments to the proper functioning of Judiciaries and especially the Kenyan Courts.

In the last quarter of 2003, the Chr. Michelsen Institute, in Norway issued a Policy Brief  “Judicial Reform in New Democracies”-other than indication that this was focusing on general experiences  from  many developing countries, one would think the brief was basically on  Kenya. This because the gist of the paper was that  courts in many jurisdictions lack legitimacy because they are either populated by incompetent  officers, lack resources to discharge their functions, lack the independence to perform their functions or are inaccessible. In undertaking the enormous task of reforming the Kenyan  Judiciary, I wish to draw from the  the conclusions of that policy paper because they are critical  timely and relevant  to our situation as we try to institute corrective measures to reform our judiciary.

Why have our courts failed to meet almost all of our expectations? That we had rather resort to violence rather than settle electoral disputes in courts of law, that some constituencies are represented in parliament by people who didn't garner the mandate of the people for more than 48 out of 60 months in an electoral cycle, that disposing of property in order to raise capital for more meaningful economic activities is hamstrung by injunctions after the other, that resolving a dispute regarding a contract is subject to unpredictability that the obligations set out are either overtaken or become worthless. That poor people have no possibility of accessing justice and redress even when their fundamental rights have been  violated. That none of the persons now 36 months in the IDP camps cannot compel government to redress that situation.

A number of reasons have been given as to why our Judiciary is unable to meet the expectations of adjudicating over disputes, upholding the rule of law, supporting good governance, protecting and promoting the enjoyment of constitutional and fundamental human rights. The first challenge is lack of independence and autonomy: the lack of structured appointment procedures, appointments to the Judiciary has been at the pleasure of the President- hence courts often lack the face of Kenya in  their composition, social background. For a long time under the previous authoritarian regimes, the Judiciary was considered an extension of the executive arms of government. Secondly, perceived complicity in past repression often work to distance the work of the courts from the people  the system is supposed to serve. Further, clearcut disciplinary mechanisms for errant judicial officers has been lacking. This also applies to other mechanisms for transfer which has at times been used as a means of punishing certain officers for their perceived independence. But more important has been the lack of budgetary autonomy meaning that the Judiciary has been treated as a department in a particular “parent” ministry through which it can draw its finances.

The second set of challenges relate to the competence of Judicial officers. Judges are appointed from various practice backgrounds but are expected to preside over a variety of causes.  There is no structured training for instance to update judicial officers whose previous practice was in property law to say human rights, many of the duty stations lack libraries, computers, law reports and judgments research assistance and  recording facilities. This is particularly evident in respect to lack of “knowledge and skills on norms that underpin democratic society”.

Thirdly, the Court system have poor accessibility and resources capacity. Poor people can not access (except of course as provided in the New Constitution) legal aid, court structures, procedures and administration, poor legal literacy and sensitivity to societal demands have worked to hinder the ability of the Court system and the Judiciary in general to serve the interests of  the wider  population.

In undertaking judicial reforms in  Kenya, it is imperative that these challenges should inform the process of transforming our Judiciary into a modern, accessible and democratic institution able to meet the challenges of the 21^st century. It is not useful to change faces, vet existing and new appointments, all very important,  unless the reform of the judiciary is undertaken in a holistic manner. Budgetary autonomy, continuous professional training, legal aid, provision and improvement of physical infrastructure and uptake of advances in Information Communication Technology will go a long way in bringing the desired desired results  from the on-going  reforms.

Essentially then the “aim of  these reform measures is to insulate the judiciary from political  and other illegitimate influences, and to strengthen its influence”. This  must be coupled with the “change in mentality of the judicial officer to instill a new commitment to constitutionalism” as well as enabling the Judges “understand their role and the norms that guide and motivate their work”.

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