Judiciary reforms alone can't solve the trouble with justice system

A general view of Supreme Court building. [File, Standard]

It began with accusations of JurisPESA in the Supreme Court, then spread to other courts. It mutated into calls on social media for the resignation or removal of, first, the Chief Justice, then the entire Supreme Court, followed by all corrupt judges.

Now titled the Judiciary Reform Movement and led by two former Law Society of Kenya (LSK) presidents —Ahmednasir Abdullahi and Nelson Havi — the apparent agenda sought improved court efficiencies, from the determination of cases and appeals to the hearing of applications, as well as timely delivery of judgments and rulings.

Interspersed in this drama was a press statement issued by four former LSK presidents, including the two mentioned, as well as Gibson Kamau Kuria and Paul Muite.

The statement spoke to more generalised concerns around a weakening rule of law environment, judicial corruption and incompetence, and the need to “uproot” the “cancer in the justice system”, after acknowledging that “the organs of justice under Article 159 are functioning reasonably well, and reforms can be made to enable them to do a better job”.

General reactions to this endeavour have been mixed. On one hand, a groundswell of support to “do something” (without necessarily specifying what is to be done) has emerged, much of it stemming from negative, case-specific and courtroom experiences.

On the other hand, suspicions around personal vendetta, the 2027 elections, and witch hunts have also surfaced.

But is this a genuine call for reform? Members of the Judiciary and the Judicial Service Commission (JSC) have asked the same questions. The danger here is that we could end up with a shouting match rather than a productive reform conversation.

History matters. The Judiciary, or Judicial Department as it was then known, was only a department within the government rather than an arm of government for almost half of our post-independence history. It was set up by the colonial administration to deal with law and order.

Over time, and especially after its delinking from the civil service in 1993, the Judiciary has followed a tortuous path of reform, with multiple taskforce reports offering recommendations to restore waning public trust, respect, and confidence, followed by no implementation due to insufficient political will.

Key factor

Context matters too. The Judiciary is a key actor in the wider justice sector, but it is not the only actor. It does not operate in a vacuum. For this reason, much past effort was made to position judicial reform within the broader context of justice sector reforms.

The legal sector reform programmes of the late 1990s – which also covered the Office of the Attorney General – were an important starting point. Arguably, Kenya’s most ambitious reform effort, the multi-stakeholder Governance, Justice, Law and Order Sector (GJLOS) reform programme of the 2000s – which covered 32 government institutions and followed the Judiciary’s own radical surgery in 2003 – offered an even more significant reform moment.

The Judiciary played a key leadership and implementation role in this first-ever Sector-Wide Approach (Swap) in Kenya.

To be clear, from the perspective of the State, the justice sector extends beyond Article 159 of the Constitution to include actors such as the police, the attorney general, public prosecutions, prisons, and probation and aftercare.

This is not to say that judicial reform on its own is not important. Indeed, today’s Judiciary emerged from the embers of the 2007/08 post-election violence, which led to the Kenya National Dialogue and Reconciliation Agreement — including Agenda 4 on long-term issues — as well as crucial reports by the Kriegler (independent electoral review) and Waki (enquiry into post-election violence) commissions.

The Ouko task force on judicial reforms used these reports, along with past recommendations, to chart a fresh reform path for the Judiciary. Agenda 4 identified ten long-term issues to be resolved. The expectation was “root and branch” (structural), not “cookie-cutter” (procedural) reform.

Police, parliamentary, executive/civil service, judicial, and land reforms were among the issues. These were followed by the issues of poverty, inequity, regional imbalances (partly addressed by devolution), unemployment, consolidation of national cohesion and unity, transparency, accountability and impunity (corruption).

Radical surgery

A highlight of the new Constitution was the requirement for all judges and magistrates to be publicly vetted, which was completed by 2013. It is easy to appreciate, after radical surgery a decade earlier, the current calls a decade later.

Beyond vetting, the Judiciary’s reform is driven by a dual imperative.

First, an imperative of institutional self-renewal that maintains public faith, respect, and confidence in the Judiciary. Second, an imperative to shepherd the State and nation-building transition envisaged by the Constitution. Former Chief Justice Willy Mutunga’s Judiciary Transformation Framework (JTF) addressed these imperatives through four pillars: people-focused service delivery, human resource capacity, enhanced infrastructure and resources, and ICT as an enabler of justice.

Service delivery

Former Chief Justice David Maraga’s Sustaining Judiciary Transformation (SJT) agenda built on and accelerated these “take-off” foundations by focusing on service delivery, case management, work methods, customer service, public complaints, and enhanced accountability. The outcome of SJT is speed and quality of service delivery, reduced case backlogs, and increased individual efficiency and effectiveness through performance management mechanisms.

The current Chief Justice Martha Koome’s Social Transformation for Access to Justice (STAJ) agenda begins by acknowledging that transformation is a work in progress, from justice delivery by courts to service delivery in courts. It prioritises sustained, continuous improvement over immediate perfection. While it seeks to enhance human and other capacities, it shifts the focus of transformation from the institutional supply side to the people-facing demand side.

This is a hugely ambitious undertaking. Viewing justice as more than a process or system, but as a shared value, communal commitment, and national promise, the agenda seeks to transform the Judiciary, and its judges and judicial officers, into adjudicators of disputes, connectors of justice champions, facilitators of dialogue, and promoters of social harmony. Simply put, a Judiciary by the people, of the people, for the people. A particular focus of STAJ is enhanced “justice journeys” for litigants, court users, and the public.

Which brings us back to today. Is progress being made? Case clearance is on a rising trend, pending cases and case backlogs are falling, human resource and infrastructure capacity are growing, and technology is more widely leveraged. That’s what the 2023/24 State of the Judiciary and the Administration of Justice Report (SOJAR) tells us.

These improvements are happening despite resource constraints – the average magistrate handles almost twice as many cases as recommended; the average High Court judge has a caseload almost six times their capacity.

Quantitatively, the Judiciary’s elephant in the room is its resource envelope, as it is across the justice sector. Philosophically, justice is not considered a public good in the way that education, health, or security are, yet paradoxically justice underpins these other goods.

What the data does not look at is the qualitative side beyond case numbers to actual judgments and rulings, accusations about incompetence and corruption, and concerns about decisional independence or judicial disciplinary processes at the JSC. This cannot be brushed aside, and neither can concerns about inefficiency at the individual case level.

The reform conversation cannot gloss over these “software” issues. Furthermore, as a people-led agenda, the conversation needs to elevate from case outputs to justice outcomes.

As this conversation proceeds, wouldn’t it be better situated within a wider justice sector reform discussion? It is clear that the pace of transformation across the sector is far from uniform. Digitisation and technology adoption are often cited as a common example, but they probably go back to basic data (content) and workflow (process) harmonisation.

Back to the beginning. Transformation is an ongoing journey, not a one-time event. Can reforms within the Judiciary alone resolve broader rule of law and justice sector issues? Not under the current approach. There is a larger context to consider, and it must be brought into this critical conversation.