Revising our outdated justice system (Part VI)

Thursday February 7 2019

By LUIS FRANCESCHI
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The bashing of the Judiciary in social media, is not part of a genuine fight against corruption. It looks more like a political campaign to manipulate the outcome of that fight; to get ''my man or my woman'' in there.

The campaign aims at character assassination. The fighters personify the problem and forget the process, which involves prosecutors, lawyers, police and the public.

After all, the justice process is a mirror of our sincerity as a society. We cannot expect perfect justice in a society where lying and stealing have become the standards of political, financial or social survival.

The legacy of Mutunga and Maraga

Chief Justice Mutunga and Chief Justice Maraga defined their tenure by giving due respect to ''judicial independence''. After all, as Senior Counsel Paul Muite says, ''a genuinely independent, competent and corruption-free Judiciary is what so many Kenyans sacrificed for.''

This ''independence'' has put the Judiciary on the spot, in the limelight. It has put an end to the ''control'' the executive had traditionally exercised on the courts. Too often, chief justices were summoned to State House and given directions on this or that matter.

Judicial independence is a huge challenge in all democracies, and more so in young ones, where powers are still growing their muscles; institutions are weak and success or failure is personalised.

Judicial independence from executive influence is essential for justice to function. Perceptions are an important part of this, and this suspension has greatly harmed that perception. For example, the 2007-2008 post-election violence was fuelled by the perception that our courts were not independent from executive influence and going to court was not an option. Five years later, in 2013, the opposite happened. Although the court still sided with the wishes of the executive, the perception of independence of the Supreme Court encouraged leaders to accept whatever had happened and ''move on''.

Again, that same perception pushed the executive to ''accept'' the nullification of the results of the August 2017 election. The Court’s position may seem uncertain, but it is not. It means that no matter who likes it and who does not, if an election is not properly run then it will be nullified…and that is certain.

Independence from the executive does not mean perfection

But independence from the executive does not mean independence from cartels, bribes or ignorance. Independence from the executive brings to the fore the best and the worst in every judge, and this is where the vetting, appointment and disciplining of judges play an essential role.

When we say ''the judiciary is corrupt and useless'' we are simply trying to get political or financial advantage from a complex situation. We need to look at three key issues, which are the responsibility of parliament and the Judicial Service Commission (JSC).First, the law, which is under the control of parliament, and where there are contradictions and inconsistencies. Second, the appointments, which are controlled by the JSC. How are the judges chosen? What criteria are used and what have the vetting boards been looking at? The code of conduct or the judge’s character and why? Third, disciplining, also under the JSC. Judges and magistrates should be accountable for their behaviour and decisions.

Today, in Kenya we have discipline and accountability challenges. In the rush to pass the Code of Conduct and Ethics of the Judiciary, we ended up with a code that describes all type of offences but prescribes no punishment.

If judges are not properly chosen and disciplined, they become accountable only to themselves and, in some cases, they are prey to cartels that may coerce or bribe them, to social or media pressure, and to their own ignorance of the law (culpable or innocent).

Legal certainty and predictability are essential

The result is a disjointed and contradicting body of judicial decisions (jurisprudence), a pretty bad sign for any judiciary. This kills the development of jurisprudence and creates a state of legal uncertainty, which is not only a legal problem, but also a political problem that will necessarily push the executive to intervene.

It is essential that courts create legal certainty by developing a coherent and consistent interpretation of the law. The European Union has been making untold efforts to achieve some sort of coherence in the development of their jurisprudence. Nils Engstad, President of the Council of Europe's Consultative Council of European Judges (CCJE), has always insisted that unless there is coherence, there will never be certainty, and this uncertainty could break the Union.

Legal certainty contributes to public confidence in the courts and in the legal system as a whole. Judges must always strive to apply the law predictably and consistently or else they jeopardise justice and decrease public confidence in the legal system.

Sentencing guidelines did not help much

CJ Mutunga’s team tried to correct this trend by issuing sentencing guidelines. These guidelines were supposed to help judges stick to certain basic principles. Soon after, it was clear that the guidelines were preventing the development of jurisprudence not by contradiction but by lack of innovation and imagination. They straightjacketed the judges into a rigid system that undermined equity.

A brilliant young lawyer, Tracy Kigen, was shocked at the inconsistencies in our court system. In the case of Al Riaz International Limited v Ganjoni Properties Limited, there was a dispute on the occupancy of a motor vehicle yard by two companies. Al Riaz was evicted by the landlord for non-payment of rent. Following the eviction of Al Riaz, Fuji Motors rented out the yard.

Al Riaz went to court to seek an injunction to have it stay on the land and the court granted it one. Fuji Motors also sought orders to have them stay on. This resulted in two different court orders from two different High Court judges, one in favour of Al Riaz to be reinstated on the land and the other in favour of Fuji Motors to retain its occupancy of the same land.

Incoherent interpretation

One of the biggest gaps in modern legal education is that lawyers learn just law. They learn to apply the law but do not know how to understand the context. This ignorance of more technical areas also affects judges who jump into interpreting situations by the book, often without measuring the financial, social or political consequences of their decisions.

Mr Wachira Maina, a constitutional lawyer, has always criticised some key decisions which demonstrated the general ignorance lawyers and judges tend to have of more technical subjects. For example, the presidential petition decision of 2013 was marred by contradictions. The judges had no time (just two weeks) to become conversant with technical aspects of a poorly planned and executed technology-based election.

Mr Maina also describes the Digital Migration decision as one of the worst in the history of the Supreme Court. In this case, the judges were not conversant with the relevant technical terms.

Certainly, in other cases, bad decisions are the result of political bias or fear. This could have happened to the CDF (Constituency Development Fund) case, where Justice Lenaola’s decision in the High Court was reversed by the Court of Appeal without a comprehensive reasoning on the matter.

The task ahead is huge. In the building of a coherent body of jurisprudence, the challenge is not just independence from the executive, which is currently under attack, but also independence from cartels and personal ignorance.

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