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There are still hurdles to justice, but system has come a long way

Tuesday July 07 2020
SUPREME COURT

The Supreme Court of Kenya. PHOTO | KANYIRI WAHITO | NATION MEDIA GROUP

By ERIC MUKOYA

The justice system is a rare platform where the three arms of government converge. The Judiciary adjudicates over civil and criminal matters, including making referrals. For the Executive, in criminal cases, police run investigations while the prosecution make decisions to charge and prosecute. The Attorney-General stays the legal advisory course for the government. The Legislature makes the laws and policies used in the justice system.

Dialogue regarding probable failure or successes of the justice system should, therefore, be embraced even if praise and blame will only be shared equitably according to the role.

The justice sector invites love and hate in equal measure. Winners and losers tend to find the character of fairness in their opposing results in the adversarial justice system.

LEGAL AID

It seems difficult to appreciate the shift, not unless one has been an ardent follower of the reforms since the Governance, Justice, Law and Order Sector (GJLOS) programme of the 1990s, the Judicial Performance Improvement Programme of 2012 and now the Programme on Legal Aid and Empowerment (Plead) of 2018 going forward.

Count 20 years back and you encounter the many who didn’t have the stomach to visit police or court stations despite having reasons to. Then, police and prosecution, in a true African family, were twin children of a strong patriarchy while the Judiciary was a step-child or one who belonged to a neglected and unappreciated mother.

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But the Constitution, in Articles 156, 157, 159 and 243, has established the State Law Office, ODPP, Judiciary and the National Police Service with autonomy requiring effective leadership to stave off interferences.

We have a constitutional cure to the malaise that suffocated justice for many years. Whether the justice system has moved from legal uncertainty, state capture, vulnerability to political tyranny and citizen incredulity is a debate left to the public.

EXPOSED GAPS

There is considerable data as framed by some recent research by the Legal Resources Foundation on the Status of Legal Aid in Nairobi County to indicate improved services and impressions. The audit report on the criminal justice system in 2017 described the prosecution, police, courts and prison facilities in similar unkindness as it exposed gaps in each.

Three years on, the National Council on Administration of Justice brings together state and non-state actors to address existing and emerging issues. To complement its umbrella works is the National Committee on Criminal Justice Reforms, which has prudently spent its time and made quality recommendations, including the Criminal Justice Bill.

The National Legal Aid Service, albeit with limited resources, helps the indigent to find justice in the criminal justice system. Likewise, there is a more open ODPP making in-roads on plea bargain and diversion. There is also a more vigilant Directorate of Criminal Investigations and police investigators, despite allegations of thinned professionalism that has increased arrests noticeably.

There are also opportunities for non-state actors such as paralegals at the courts and police stations, besides prison facilities, offering legal aid and assistance. Joint service weeks are common, besides active issue-oriented court users’ committees. This within a court system that is open to mediation and alternative justice.

The justice system, in particular the criminal division, is central to the wellness of a society as it is a cog in the engine that is the rule of law. Its depiction, whether under formal or informal media, not only calls for writing decorum but also contextual truth.

As we fuss about tribulations consumers of justice face, especially the palatability of the criminal justice system, it’s important to be objective. It’s unnecessary and academically futile to drag the names of the ODPP, CJ, AG and IG in the mud without considering reporting dignity.

The opinion piece by Joseph Wangui, “Why Maraga’s bid to reform justice system has flopped” (Daily Nation, June 17) and “Why Criminal Justice reforms are on course” by Justice Grace Ngenye (DN, June 22) opens us to a choice. Both cannot be right.

Mr Mukoya is executive director, Legal Resources Foundation Trust. [email protected]

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