Self-evaluation and pitfalls of Kenya’s justice system

If there was a competition to exemplify the adage; justice delayed is justice denied, Kenya would comfortably take first position. This is despite successive efforts to streamline the resolution of disputes in a country of hope.

Looking in the mirror and evaluating itself, Kenya's Judiciary has indicted itself many times. A study by the Judiciary in 2014, “Court Cases Delays:Impact Evaluation Diagnostic Study Report,” showed delays were a collective problem that could be addressed through concerted efforts by judicial officers, lawyers and litigants.

A key finding in another report, “The Criminal Justice System Audit Report”, published in 2017 by the Judiciary through the National Council on the Administration of Justice (NCAJ), was that the criminal justice system was skewed against the poor.The audit found more poor people were arrested, charged and sent to prison compared to the rich, who know how to navigate and wiggle out of the system.

Yet this self-evaluation has not helped matters. Historically, before the NARC regime, the judiciary was negatively perceived, with allegations of corruption strangling it. ‘Why hire a lawyer when you can buy a judge?’ became a common cliché in reference to justice through corrupting judges. Corruption was baptised in rosy phrases like merely ‘greasing the wheels of justice’ to be able to grind.

Then, there was radical surgery of the judiciary, which gave Kenyans some sense of hope, appreciating that the malady of delayed justice was slain in NARC’s surgery room.The hope of Kenyans was that cases could be decided based on the evidence adduced, not the size of one’s bank account or social standing.

Gains made

These measures were further buttressed by wholesale reforms in the judiciary via the Constitution of Kenya, 2010. This included the establishment of the Judicial Service Commission to promote the independence of the judiciary.

Fast forward to 2019, despite the gains made and reforms advanced in the judiciary, the case of the Kenyan judiciary in the eyes of the public, from where it draws its mandate is now illustrative of the saviour’s analogy of new wine in old wine skins. Kenyans have witnessed corruption cases drag in courts for ages. Correspondingly, there has been shock of the lightning speed with which poor citizens have been arrested, arraigned, sentenced and eventually jailed in less than a fortnight. A case abides of a Makueni man who was arrested on the 2nd day of August 2018 for assaulting his wife and later sentenced to 12 years in prison barely a week later.

The judiciary needs to change itself. First, it must implement the report by the National Commission on Criminal Justice Reforms recommending reclassification of minor illegal acts from criminal offenses to civil infractions. This must be done in conjunction with the legislature. The courts must then refer civil infraction cases to mediation before they can be taken to court. This will give it time to resolve complex blue collar crimes that include corruption.

Investigative bodies

Second, though people have the right to bail, this right is not absolute. The courts in granting bail should not be used to frustrate other bodies within the justice system like investigative arms. The courts should be alive to the fact that anticipatory bail is prone to abuse by applicants to prevent investigative bodies from investigating and consequently preventing arrests. The ‘Bail and Bond Policy Guidelines’ must be reviewed to ensure that the granting, or denial of bail and or bond, is facilitative of justice and not a hindrance.

Recently, the Chief Justice complained about charge sheets on which 30 people, each with his lawyer, are charged.  Since the judicial system is one, is it impossible for the Law Society of Kenya and the Judiciary to train the officers responsible for preparing charge sheets in order to facilitate the ends of justice? This calls for co-operation.

Third, if the corruption cases are too complex to be won through the adversarial procedure, the legal system should adopt restitution and closure as a method of ending the long wait for justice. If the offenders return what they have stolen to the public, the charges against such persons can be dropped instead of the ever winding nature of corruption cases which at the end yield no results.

Ultimately, the justice system in Kenya must live true to its principles by ensuring just and expeditious conclusion of cases. It must be blind to social, economic and political statuses of those brought before it.

Truly, courts must dispense justice but must be alive to their context.It must live within its means by ensuring that justice is not only done, but must be seen to be done. The alternative to self-evaluation is costly.

Prof Mogambi, Communication and Social Change Expert, teaches at University of Nairobi.hmogambi@yahoo.co.uk