The severe backlog of cases in Kenya’s court system is our justice system’s deadliest cancer. As it is always said, ‘justice delayed is justice denied’.
When the Constitution of Kenya Review Commission (CKRC) collected and collated the views of Kenyans about governance and justice, one of the major complaints was ‘delayed’ justice.
Whatever constitutional provisions would eventually be adopted, the people had entertained hopes that like many other societal issues, the pace of the justice system in Kenya would be transformed.
In response to that call then, the Constitution ended up providing for a wider ‘Right to Access Justice’ and more practically, nearly tripled the number of High Court judges and doubled appellate judges.
When Willy Mutunga was appointed Chief Justice, statistics indicated that given the number of judges at the time and the number of cases filed per month (the pattern in those days), the Judiciary would need more than seven years to clear the backlog. Seven years would be necessary to allow judges to hear old cases full time (without giving any attention to any new cases).
Mutunga promised to bring the case backlog to an end, and introduced important reforms. The Judiciary’s budget was tripled within a year; more judges were appointed and the courtrooms were better staffed. Clerks and research assistants were also hired, and general working conditions improved substantially.
The stage was set and the future of justice looked bright for Kenya. A substantial number of cases were cleared in a relatively short time. Strangely, on a statistical level, matters did not get better as expected. It seemed like a contradiction.
The 2010 Constitution had also rattled an unknown snake: the poisonous viper of frivolous litigation. Lawyers began going to court for any reason and under any circumstance, following the whimsical and often unethical instructions of unworthy clients.
What the Constitution intended to become justice for all has turned out to be justification for all. We have become a litigious society; we deny the undeniable, we are oblivious of truth and ethics…we have turned out to be a people fighting anything for the sake of self-justification, even when caught on camera in front of all media houses.
When Chief Justice Maraga took office, he made the ambitious proposition that by 2020, the Judiciary would not have any cases older than three years. We have less than two years to go, and as was demonstrated to the nation in Eldoret this past week, that aim will remain out of reach unless something is done quickly.
WHY JUSTICE IS DELAYED
Cecil Yongo and Kasyoka Mutunga are two young and amazing, up-and-coming legal scholars. In the past few weeks, they have made their rounds of the country, supervising law students on judicial attachments. Cecil and Kas (as we usually call Kasyoka), say they have observed five main reasons that explain the dissonance between the reality on the ground and the constitutional dream.
First, the ratio of judicial officers to cases filed is still too wide. The Constitution gave a huge and wide access to justice that has been largely abused. For example, there were more than 340 election petitions after last year’s August poll. Many of them were completely frivolous and filed with the intent of playing the justice machinery.
Second, many judicial officers are simply not working hard enough. There are some who are exemplary and heroic, but meritocracy and performance evaluation have simply waned and fallen almost into oblivion.
Third, the court management system has remained the same old system. Despite good attempts at modernisation, clerks and officers still follow old and dangerous filing systems. Files still go missing, are misplaced, destroyed or “made” to disappear.
Fourth, there is lack of practical interest in pushing alternative dispute-resolution mechanisms. It seems we are giving it a wishy-washy push; a kind of lukewarm determination to resolve out of court matters that should not be in court.
HOW TO CLEAR BACKLOGS
Mediation, for example, prevents frivolous or unnecessary litigation. The court-mandated mediation needs a more decisive push. Cecil laments that “lawyers are really more interested in financial gain than in justice”.
Fifth, lawyers themselves are guilty of delaying tactics and lack of professional preparation. For some lawyers, delaying justice amounts to winning. They make money as they keep bleeding the client’s finances without having to go through the shame of admitting that a case has no future. In the end, they still ‘look’ victorious; they will say something like, “We tried our best, but the judge was probably bought.”
Cecil and Kas argue that “there are many methods we could try to use to deal with this intractable issue, and some of these have already been attempted. They include spurring increased use of Alternative Dispute Resolution before contests find their way to court, monitoring judicial officers’ productivity more closely and judicial officers themselves becoming less tolerant of the ingenious case-delaying tactics that are often used by lawyers”.
Kas also adds that “we need to think an out-of-the-box modern court management system. The UK, for example, has gone paperless and the computerized system manages more than 10,000 cases per month. Papers and files don’t get lost.”
Of course, the lawyers themselves could augment all these efforts by becoming more faithful to their duty to the courts and avoid putting themselves and justice to shame.
NEW YORK'S 'LOBSTER COURTS'
Nonetheless, Cecil argues for a more radical step: the adoption of 24-hour courts. It is not that this would be a completely novel idea: far from it. In response to soaring crime rates and a State Court of Appeals’ verdict that any person not arraigned within 24 hours would be eligible for immediate release, the Manhattan Criminal Courts used to have what was referred to then as a “lobster shift” where courts would hear cases all day and night, until 8am.
Naturally, following such a path would require an infusion of more prosecutors and judges by the State, and cooperation by the Law Society of Kenya.
In New York, for instance, the success of the lobster shift required an additional $10 million in budget supplements annually and the increase of the district attorneys’ annual class from 40 to 65.
While it had its faults, the benefits clearly outweighed them. The New York Times reported that Xavier R. Donaldson, a defence lawyer at the time, lamented the passing of the lobster shift, commenting that “the bad thing is that you’re here at 5 in the morning,'” he said, “But every time I end up here, I leave thinking, I’m glad I came, because it decreased the amount of time my client was incarcerated.”
There are many judicial officers doing a resoundingly good job. Yet it is often starkly clear to court visitors that by about 2pm, more than half of the courtrooms are empty. In fact, they are being cleaned!
Meanwhile, many must await their hearing for another day. Cecil’s eyes grew larger and deeper when he said, “Just imagine how many hours are wasted. The facilities do exist — what we are missing are additional officers, more ingenious case-management systems, and goodwill from all quarters. Yet this is not impossible.”
The malaise of case backlogs in Kenya can be defeated but for this to happen, we need radical thinking that will alter the ground completely. It seems that adopting 24-hour courts system would be a step in that direction.
After all, if hospitals cannot wait for the next day to attend to an emergency, why should justice wait when freedom or quality of life is at stake?
Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi