Joint efforts fail to speed up wheels of justice in Kenya

Justice delayed: A nationwide survey, “Justice Needs and Satisfaction Survey in Kenya”, found that most serious legal problems were crime, followed by land issues, and family justice. FILE PHOTO | NATION MEDIA GROUP

What you need to know:

  • Welcome to Kenya’s criminal justice system where the adage, justice delayed is justice denied, rings true.

  • This is despite successive efforts to streamline the resolution of disputes.

  • The number of cases that are older than five years in the High Court reduced from 48,173 in 2016 to 35,836 in November 2017.

A few days before Christmas in 2009 the Flying Squad raided the home of businessman Munir Ishmael in Narok.

Residents scampered for safety as armed police officers secured the home and its surroundings on December 8. Police later said they had found a cache of weapons described by then Commissioner of Police Mathew Iteere as the largest consignment found in civilian hands in Kenyan history.

The weaponry included approximately 100,000 rounds of assorted ammunition and other military supplies. The bullets were clearly marked as having been manufactured by the Kenya Ordnance Factories Corporation in Eldoret and the Ministry of Defence (British Army).

Mr Ishmael and others were charged in 2009 but nearly a decade later the case is yet to be concluded, thanks to preliminary filings and adjournments. A hearing is set for next month.

JUSTICE DELAYED

Welcome to Kenya’s criminal justice system where the adage, justice delayed is justice denied, rings true despite successive efforts to streamline the resolution of disputes.

The latest efforts came in instructions by Chief Justice David Maraga two months ago that cases that have been in court for more than five years should be determined by the end of this year.

“It is only when justice reaches the weak and the rule of law protects the indigent, that we, as a country, can say that our Constitution is living up to its juridical and developmental promise of equality and equity,” said Mr Maraga.

CASES REDUCED

Judiciary records show that the number of cases that are older than five years in the High Court reduced from 48,173 in 2016 to 35,836 in November last year.

It is this backlog that Mr Maraga is targeting. The overall case backlog reduced by nine per cent in 2017 alone. And the Judiciary is not solely to blame for the delays.

A study by the Judiciary in 2014, “Court Cases Delays: Impact Evaluation Diagnostic Study Report,” showed that delays were a collective problem that could only be addressed through concerted efforts by judicial officers, lawyers and litigants.

A majority of the pending cases are at the magistrate courts where nearly half – 49.5 per cent – of criminal cases took up to a year and four months to be concluded. Criminal cases could only be resolved on the same day the plea was taken if an accused person was found guilty.

CAUSES OF DELAYS

Delays in conclusion of criminal cases were attributed to courts being out of session (22.4 per cent), unpreparedness by litigants (19.1 per cent), police and probation officers unpreparedness (18.3 per cent) and lawyers unpreparedness (11 per cent).

Frequent adjournments – a key cause of case delays – were found to arise from lawyers not being ready to proceed for various reasons, absent parties including the accused and witnesses, plea of “not guilty” entered, police file not in court, consent by parties to adjourn, judicial officers being away, expert witness being absent, plaint amendment, parties seeking out of court settlement, judicial officer being sick, among others.

The 2014 report recommended planning in advance for transfers and other trainings that may require judicial officers to be away from their station; strengthening collaboration among key stakeholders such as lawyers, police, prosecution and probation officers. Training judicial officers on case management to facilitate speedy movement of matters brought before them was also recommended.

SKEWED

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 largely skewed against the poor.

The audit found more poor people were arrested, charged and sent to prison as compared to the rich.

Justice Maraga said he had also directed that all cases be finalised “in good time” to avoid violating the accused person’s right to fair trial.

Regarding petty offenders, implementation challenges appeared to circumvent a Constitutional requirement that people accused of offences whose sentence does not exceed six months’ imprisonment or which are punishable by only a fine, should not be held in police custody for more than two days.

ABSCONDING COURT

Justice Jessie Lesiit, the presiding judge of the criminal division of the High Court in Nairobi, said rule was being undermined people absconding court once released on personal bond. “As an accused person, take it upon yourself to comply with the directives of the court, cooperate with the prosecution, police and probation officers, as it is in the interests of all that matters are concluded quickly,” said Justice Lesiit.

The Bail and Bond Implementation Committee (BBIC) has also continued to sensitise magistrates and judges on the need to give reasonable bail terms and review cases constantly as well as advise on other forms of securities to make it easier for remandees to post bail.

“We are also encouraging magistrates to restrain from directing forfeiture of bail before an accused is heard,” Justice Lesiit, who is also the chairperson of BBIC.

BUILD COURTS

A total of 100 courts are currently under construction across the country as part of efforts to bring justice closer to the people – 30 funded by the World Bank at approximately Sh12 billion under the Judicial Performance Improvement Project (JPIP) and 70 funded by the national government.

According to Mr Nicholas Simani, the JPIP communications consultant, some of the courts will be completed this year.

Mr Nicholas Menzies, World Bank task team leader for JPIP, said a lot had been achieved since the establishment of the project which has improved service delivery by the Judiciary. “I think the Judiciary as a whole has made strides over the last five years, some with support from JPIP. There is always a new initiative being undertaken,” said Mr Menzies.

The European Union (EU) has also offered 34 million Euros (Sh4.2 billion) to support Kenya’s justice system over a five-year period (2017-2021) under the Programme For Legal Empowerment and Aid Delivery (PLEAD), to ensure equal justice for all Kenyans.

LEGAL AID

It will support access to legal aid for the poor and vulnerable groups from 12 counties, found to be most in need: Wajir, Mandera, Lamu, Tana River, Garissa, Marsabit, Isiolo, Kisumu, Nairobi, Mombasa, Uasin Gishu, and Nakuru. Activities relating to criminal justice reform, will, however, go beyond these counties, the EU has said.

It will also support institutions in the justice sector, strengthen court administration, case management, and increase efficiency.

EU’s deputy ambassador Bruno Pozzi said: “Practically, I hope this support will reduce the likelihood of an old lady selling vegetables by the roadside where it is not allowed, ending up in jail, together with some serious criminals, because she was not able to pay the fine or the legal costs at the county courts.”

“Thanks to PLEAD, she might benefit from free legal aid and do community service instead of going to jail,” said Mr Pozzi.

ONE-STOP-SHOP

According to Dr Amado Philip de Andrés, UN Office on Drugs and Crime (UNODC) Regional Representative for Eastern Africa, one of the more immediate interventions will be the establishment of Huduma-type centres, which will be a one-stop shops.

“The average citizen can go there and obtain information and assistance on the processes. They can also track the status of their matters,” said Dr Amado.

The programme is EU’s largest in the justice sector in sub-Saharan Africa, and its main implementing partners are UNODC and UNDP through its Amkeni Wakenya facility. Other players are the Judiciary, NCAJ, Office of the Director of Public Prosecutions (DPP), the Witness Protection Agency and the Kenya Probation and Aftercare Service.

In 2015, UNODC carried out a baseline survey on criminal justice system in Kenya using selected courts in Machakos, Mombasa, and Naivasha. The report helped the Judiciary to develop case management guidelines in criminal cases at the High Courts and magistrate courts.

LEGAL PROBLEMS

A nationwide survey, “Justice Needs and Satisfaction Survey in Kenya”, found that most serious legal problems were crime, followed by land issues, and family justice.

Prof Mauritis Barandrecht, the research director at Hague Institute for Innovation of Law, who led the team which conducted the study in 2017, said among the issues which came out was the need to strengthen the links between formal and informal justice.

He also said there was need to embrace the latest smart technologies that provide easy and affordable access to legal information and advice when people need it.

Deputy Chief Justice Philomena Mwilu has said the report will enable the Judiciary further improve accessibility to legal services.

On December 14, 2017, a full bench of the Supreme Court declared mandatory death sentence unconstitutional. The law had been in operation since the colonial era.

Other countries in Africa where death penalty has been abolished for being unconstitutional include Uganda, Tanzania, Malawi, and South Africa.