By YASH PAL GHAI and JILL COTTRELL GHAI
Last week’s article explained the new structure and role of the judiciary, pointing to major constitutional reforms. Today’s topic is how far the judiciary has discharged its responsibilities. First it is important to note that in some respects the roles of the executive and legislature are quite different from that of the judiciary; they decide on policies and can proceed to implement them, masters of their own authority. But for the judiciary’s major responsibility, deciding disputes and interpreting the law, courts have to wait until litigants come to them – in civil cases usually the affected people, and in criminal cases the prosecution theoretically acting on behalf of the people (there is a widespread belief that some “cartels” enjoy considerable impunity, regardless of what the people would wish). Executive and parliament are able effectively to decide on their budget but the judiciary must negotiate hard, effectively with both of them. The judiciary has traditionally been understaffed and underfunded—the situation has improved but not sufficiently.
To some extent a court’s decision is based on arguments presented to it (so the quality of judgment depends significantly on the calibre and integrity of advocates—especially as Kenyan judges tend not to probe them). Another constraint is that courts cannot enforce their judgments on their own initiative; often those who have “won” cases and their lawyers seem too exhausted to go back to court and demand that the judgment be carried out. In many cases implementation depends on the executive, particularly the Attorney-General. Here again, the record have been abysmal. Some learned and humane judgments have been negated in this way. The judiciary has been reproached for certain failings which are not its faults. When we turn to specific principles of justice and law, it is important to remind ourselves that they bind not only the judiciary, but the “legal system” which includes the Attorney-General and the DPP. Many failures in the justice system can reasonably be attributed to them, not the judiciary. Nor must we ignore the highly politicised context in which the judiciary has to operate now, with responsibility to decide whether the acts of the executive and the legislature are compatible with the constitution (something neither the president nor the parliamentarians take kindly to).
Responsibilities of the judiciary
We begin with the constitutional principles established for the conduct of the judiciary.
Justice for all irrespective of status
This principle is closely tied to access to justice. There is immediate unfairness if some people cannot go to court for lack of resources, or as even more frequently, do not know that they have the right to approach it. The former problem cannot be resolved unless the government provides legal aid which our Attorneys General have so far avoided doing, thus violating Article 48 – but it good to see it is on the National Assembly’s agenda for the near future. Justice is also denied, as has occasionally happened, when judges seem intimated by tough talking, intimidating advocates, without much legal substance.
The judiciary has tried to make itself more relevant and approachable through open days, its “marches” through the country, and court users committees. It has vastly increased the number of courts, reaching most areas; soon there will be a High Court in every county. For access to the Court of Appeal, people in far off places need not come to Nairobi; it has been “decentralised”.
Justice shall not be delayed
A major criticism of the judiciary—not only in Kenya—is delay. Many cases go on forever in Dickensian style. Some judges seem to show little regard for the difficulties, indeed suffering of litigants; the postpone cases without good reason—often! However, the Chief Justice and the Judicial Service Commission have taken the delay issue seriously. Apart from new courts and dispersal of the Court of Appeal, much progress has been made in tacking backlog, especially in criminal cases. which should have the result of speedy decisions. It is estimated that while until recently, it took about 10 years for a case to be heard in the Court of Appeal, this is reduced to 3 years. Great progress has been made in clearing election cases (unlike the not unusual instances previously when decisions were made a fortnight before the dissolution of parliament!). Judges have entered into performance contracts requiring them to file regular reports on progress.
Justice without undue regard to procedural technicalities
Cases should no longer be frustrated due to technicalities. The reality is different. Judges and advocates seem fond of technicalities, especially when they perplex their clients. Sometimes a technicality can change the entire tenor of the case, as many critics have said of the Supreme Court approach in the presidential election case, refusing to consider a great deal of evidence by Odinga’s lawyers because they had not given the evidence earlier. Perhaps this principle will take time; they are already cases where it was applied.
Alternative dispute resolution
The excessive load on the judiciary can be reduced if disputes are dealt with by alternative methods of resolution, such as mediation, arbitration and traditional dispute settlement. This issue is being addressed by the judiciary, through creating awareness, pilot schemes, use of paralegals, and training people. Here of course the responsibility is not solely of the judiciary, but the community, professional organisations, elders, and the government.
Protection and promotion of constitutional purpose and principle
Last week’s article pointed to the importance of this responsibility. It lies at the heart of the constitution. It affects the Rule of Law, our rights and freedoms, social justice, integrity, participatory democracy, sustainable development, and most of all, national unity. In the limited scope courts have for settling of these issues, they, particularly the Constitutional Division of the High Court, have been faithful to the Constitution, with judgments of compassion and erudition. We have already the beginnings of excellent precedents and jurisprudence of what is sometimes referred to as the “transformative constitution”.
A fundamental challenge to the judiciary was to clean itself and to redeem its reputation as the result of its abuse by Kenyatta and Moi, creeping – then galloping – corruption within itself, compounded by lack of competence. In this the judiciary has largely succeeded, though there is some way to go. The vetting of judges may not have been a total success, but it did get rid of several incompetent and corrupt judges. The very fair processes of appointment and discipline of judges through an independent Judicial Service Commission have done much to restore some confidence in the judiciary. The main initiatives taken by the CJ, his colleagues and staff have done away with the useless and intimidating dress, manners and mystic of judges, and promoted dialogue between them and the public. Dialogue among judges and their submission to educational sessions on the constitution and specialised laws have served to enhance their understanding of the constitution—and the challenges it poses for them. There are many more women among the judges, magistrates and staff than ever before.
The credit for much of this progress must in large measure go to Chief Justice Mutunga. His commitment to the values of the Constitution, particularly integrity, social justice, participation and scholarship—and the willingness to learn from other countries – are to a large extent responsible for the positive changes in the judicial system. The many initiatives he has taken to improve standards of judgments, relationships with the people (ever ready to engage with the poor and the “uneducated”, as with scholars and the establishment) have immeasurably raised the reputation and respect for the judiciary. The big question now, with his imminent retirement, is whether his successor will continue his reformist and humanist agenda. Much hangs now on the integrity of the process of appointing his successor; it must be transparent, and the executive must curb its instinct to influence the decision. We are still not out of the woods.
The authors are directors of the Katiba Institute