Revising our outdated justice system (Part IV)

In ''The Faces of Justice'', Sybille Bedford recounts old English courtroom tales of trials. He begins the book by quoting John Selden, ''we see the Judges move like lions, but we do not see what moves them.''

Sybille was questioning the efficiency of judges and the exercise of their mandate. This same question remains unanswered today. We inherited our fractured justice system from our colonisers, and it seems to have outlived its useful lifespan.

This system, like most modern justice systems in the Western world, was built on one core ideal: equality, which could only be secured by having a system where objectivity was watertight, for only objectivity could ensure equality.

So, the big dilemma was how to achieve objectivity in a world where the only channel of communication was physical. Objectivity as a prerequisite of equality would guarantee justice for all.

In the Common Law system, this objectivity forced the judge to remain distant, cold, and impersonal to prevent any type of influence or manipulation. The judge was to have no intimate contact with any party; and they only communicated through their agents – the lawyers. In the Continental system, this objectivity was guarded by making the court process a written affair, which allowed the judge to be more involved and active, but always in writing.

In ancient Greece, Plato had already perceived equality as an essential component of democracy, which he defined as a ''charming form of government, full of variety and disorder; and dispensing a sort of equality to equals and unequals alike.''

The Greeks had placed justice under the protection of Themis and her daughter Dike, the ancient goddesses of justice. These goddesses were not blindfolded until around the 16th century, when the blindfold made its entrance on stage to stress the idea of objectivity.

NEW WORLD ORDER

Justice, in the new world order would not tolerate any sort of inequality and skewed inequality. Formalities, vestments, mannerisms and the physical design of the courtroom were part of the essential facts and symbols that would ensure enough physical, mental and moral distance between the parties and the judge.

The world evolved but the courtroom did not. Lawyers continued doing what they had always done, wearing peculiar vestments, navigating through an increasingly intricate system which they used or abused for the sake of their client’s immediate gain. The aim of legal practice was to get their clients out of trouble regardless of whether they were right or wrong.

Judges too focused on the process, but for a different reason. Judges are the guardians of the process. They would only be accountable to their peers and appellate courts for their faithfulness and coherent legal reasoning when following procedural steps that lawyers mastered and manipulated so well.

Justice became the by-product, the side effect of a thwarted process. Court officers and practitioners felt safe by the perfunctory repetition of old habits…after all ''this is how things have always been done,'' they would argue.

We have built a deeply frustrating process that was easy prey to manipulators, corrupt officials and speculators, but we still called it justice. It all began by trying to attain perfect justice in an imperfect world, and we have ended up with imperfect justice in a perfect mess.

We then tried to correct this mess by appointing more judges, building more courts, boosting court fees, increasing possibilities for appeal, disciplining some judges and lawyers when they screwed up the process… Surely, some of those measures were necessary, but we have seldom asked ourselves if we are on the right track.

Times kept changing but the system did not. It got entrenched in its old ways and the temple of justice became a market, where the highest bidder got what it wanted and we kept calling it justice.

The emergence of social media, cyber-technologies, artificial intelligence, blockchain technology, teleconferencing and tailor-made software have accelerated the speed of life, business and crime.

After this week’s terror drama that stole 21 innocent lives, we now see clearer than ever before that our outdated and slow justice system cannot cope; it cannot catch up anymore. This cannot be business as usual. Justice needs sophistication and speed to deal with such absurd criminals.

Appointing more judges, pumping more money and building more courtrooms will not solve the problem. It is like trying to get the great Magic Johnson or Shaquille O'Neal back on the basketball court, or David Beckham and Pelé back on the soccer pitch. They are well past their retirement age, just like our justice system.

INDEPENDENT JUDICIARY

The 2010 Constitution came into place and shook the judiciary to the core by causing the most amazing revolution ever, peacefully… This revolution was called ''judicial independence'' and it caught one too many legislators, politicians and lawyers unawares.

Before 2010, there were no institutional mechanisms to guarantee judicial independence. It was simply pegged to the character and honesty of whoever was at the helm of the judiciary, and independent-minded chief justices usually did not last long.

But, judicial independence made the judiciary free and therefore uncontrollable and unpredictable – which is a double edge sword. Now no CJ may coerce a judge to decide on a specific direction.

The success of this new independence formula rests solely on the good selection of honest and competent judges, carried out by the Judicial Service Commission.

Judicial independence has exposed the judiciary. Independence is a good thing, but it also throws you into the arena, puts you in the limelight. A responsible organ is also accountable to the people at large and it must resolve its own administrative challenges.

A lot has been achieved in terms of independence. However, there are still some painful truths that require urgent action. First, the agonisingly slow pace of the justice machine, which is constantly increasing the embarrassingly huge backlog of cases, impossible to clear.

Secondly, the chaotic jurisprudential mayhem we are now witnessing, where judges too often come up with decisions in total disregard of precedent, and even legislation.

OUTDATED SYSTEM

And finally, we have got stuck in a court process that was designed for a different world; a physical world where justice’s greatest interest was to prevent intimate physical contact between the judge and the parties. That process that cannot cater for the speed of today’s world. It must be redesigned.

Lawyers have compromised great justice ideals for the sake of a stable and predictable income. We turned law into an unpredictable mess to keep a predictable income, where justice is just a lucky outcome.

We will analyse each of these truths and propose solutions for the courts of the future in next week’s piece. The time to disrupt this safe space, where lawyers and judges feel too comfortable, has come. This must change.

Dr Luis Franceschi, Dean – Strathmore Law School, [email protected].