Revising our outdated justice system (Part VIII)

Wednesday March 18 2020

Abunuwasi’s amusing and vivid traditional tales made primary school classes easy and enjoyable for teachers and students, and there were always some practical lessons to take home.

In one of those wonderful tales, there was a gardener who was hired to clean a garden; he had to sweep leaves. He worked so fast, and finished gathering leaves that he soon found himself jobless. Abunuwasi’s teaching was very simple; if you do your job too fast you will be left jobless, so…take it easy.

This Abunuwasi principle is eating up the justice system from within. In our justice system, everybody drags their feet; there is no hurry and no relevant service charter. The approach of many judicial officers is ''we are doing you a favour by listening to you'' and the approach of lawyers is, sadly, to take advantage of this attitude and the gaps in the system, to maximise on profits as the poor Wanjiku drowns in delayed and/or never-forthcoming justice.

The slow pace at which the machinery moves kills trust, big and small businesses. It kills investments and shakes the foundations of democracy. It kills justice itself. And lawyers, the ones who make the justice machine move, are at the centre of this dilemma.

The education system, the Judiciary, the police, the prosecutors, the judges and their jurisprudence, the process…have all featured in these series of articles on judicial reforms. This week, we should focus on the real game changers, the ones who have jeopardised and corrupted the system from within, and the only ones who can savage and rescue it…the lawyers.

Every controversial decision given by a judicial officer or court, even the Wajir case decided by the Supreme Court last week, which Muthomi Thiakolu criticised wisely, had lawyers arguing on either side. In every case the judiciary decides, there are lawyers behind those arguments and those claims. Each persuading the judicial officer on the bench to buy into their line of thought.

Case management and discovery of documents

If we want the judiciary to change, lawyers must improve case management. The discovery of documents has been a real nightmare. Many disputes go far and high, they waste precious judges’ and clients’ time and money because lawyers are arguing about unclear facts. If the facts are obvious and available to all parties, time taken to litigate disputes will reduce drastically. In half of the cases, lawyers may have recourse to settlement out of court.

Unclear facts have contributed to the general failure of alternative dispute resolution (ADR). Lawyers have resisted ADR for they feel unsafe and insecure. ADR seems a threat to their income.

Besides, we were trained in an adversarial system and ADR makes you feel like a boxing coach in a contest where the two warriors embrace and forgive each other before the bell rings. The Judiciary started a court-annexed mediation project which has sadly been jeopardised by the lack of payments of mediators, and the addition of poorly-trained professionals to the roll of mediators.

We have pushed ADR off a cliff

Unclear facts throw away any possible reference to ADR, and all disputes end up queuing at the Judiciary registry. The wheels of justice are clogged and move slowly, with lawyers tending to bite off more than they can chew. This results in poor preparation for submissions, which are shoddy in form and substance; also, witnesses are poorly selected and unreliable. This makes a simple case drag for long and clutter the system.

As justice moves at a snail’s pace, lawyers, who usually respond to the environment in which they move, take advantage of any pitfall to adjourn cases eternally. It is also common to find that scheduled cases are adjourned because the judge is away, being trained, sick or simply late.

Cases pile up and judges do not have time to write decisions. I sometimes wonder when they do it. In many courts, judges sit throughout and write their judgements at night when they are extremely exhausted and their concentration levels diminished reducing their capacity for attention to detail.

Poor client care and swift invoicing

The situation is worsened by the fact that lawyers worldwide are among the worst professionals in client care. Usually doctors will listen, examine and hand in a prescription or draw the knife and take the patient to the operating theatre. Insurance brokers too, they do it all in record time. Architects work hard on the design and supervision. What do lawyers do?

A good friend, who complained to me bitterly about my professional colleagues, said that ''lawyers get extremely interested in your case and convince you that you must go to court. Once you are up for it, they get your instructions and deposit money. This is usually their last communication; they go mum. The client is supposed to be patient and not disturb…and wait for the next communication, which will often be an invoice for the many unseen heroic things they have done in court.''

The fact is that not all lawyers are happy with all their cases dragging on for long. At least half of the lawyers are unhappy, and usually this half are those who are on the side of justice. The other half have incomplete information, or hope that time will sort it out, or perhaps are dishonestly abusing a malfunctioning system in the hope that the other party gets exhausted, and keep charging appearance fees in criminal cases.

Great universities are not built by good teachers. The equation happens the other way around. Good students challenge the lecturers and sieve the good from the bad and the ugly. Good students repel mediocre teachers and make a university great.

Good judiciaries are built by good lawyers

The same happens to judiciaries. Good judiciaries are built by good and honest lawyers for a judiciary is the mirror of its lawyers. Certainly, the Law Society of Kenya has a big stake in judicial transformation.

The fact that today in Kenya we have around 4,000 lawyers whose core business is ambulance chasing, extorting unsuspecting victims, often in collusion with corrupt police officers is a sad example of what poor planning and education can achieve. Our judiciary will always fall prey to such cannibals of justice.

As the President of LSK said to me in an informal conversation, respect and decency is quickly being lost. Professionals insult each other openly, and on social media. We are treating justice like politics, and the best lawyer is no longer the fairer one, the most responsible one, but the one who can shout the loudest.

I know many colleagues will feel accused, but I am also sure that self-examination will make us react and be more positive and fair in the way we do things. We can also help improve the situation by regaining some restraint and respect towards all colleagues and judicial officers.

Next week, I promise to look at the Judicial Service Commission.

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