The following quote on Judicial System of Kenya in 2011 can be summed up in one line as below:
“Why hire a lawyer when you can buy a judge?”
Kenya’s Judicial System was in bad condition in 2011. The following conditions were responsible for it:
- In 2011, Kenya had only 53 judges and 330 magistrates for population of 41.4 million
- Backlog of 1 million cases
- Litigants use to bribe officials to get earlier court dates, defer dates or purposefully lose the case.
- It was reported that around 43% of Kenyans who sought judicial services paid bribes
- No System to track cases or hold judges, magistrates accountable for delay in services
- No Public trust on the system as Judicial System was weak on integrity
- Judicial System was politically biased based on the ruling party as The President had unilateral powers to appoint judges and Judicial commission
- In 2007, when major riots broke out during elections, the two political parties fighting the election sought to settle the case outside of courts because they believe they will not get fair hearing
And Things Began to change….
In June 2011, Willy Mutunga was appointed Chief Justice of Kenya. These were his words during one of the speeches about Judicial System in Kenya:
“We found a judiciary that was designed to fail, we found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic.”
Following efforts were taken by Mutunga and his team:
- A team was made which accessed judiciary’s challenges.
- The team began to sort through previously proposed reforms like internal reports, recommendations from civil society and work of 2009 Task Force
- The result was a plan known as – “Judicial Transformation Framework”
- The framework consists of four pillar points:
- “People-centered” delivery of justice
- Improving Organizational culture and professionalism
- ensuring adequate infrastructure and resources
- Extensive use of Information technology
- The first pillar focused on public engagement and ensuring access to justice. Actions like setting up customer desks, complaint mechanisms, creating case management system and simplifying court procedures
- The second pillar focused on organizational changes like changing the judicial culture, increasing training and setting up individual responsibilities
- The third and fourth pillar focused on setting up and upgrading information technology infrastructure, expanding court systems and computerize its procedures
Joel Ngugi, Director of Judicial Transformation Framework, who focused on changing the culture in the organization and setting up individual responsibilities, said:
“The judiciary had developed a culture of unaccountability, distance, hierarchy… sometimes driven by a self-serving invocation of the principle of independence.”
But then Four Pillars faced some challenges:
- First and foremost, it was a culture shock for many within the existing judicial system to change their organization culture and work as per the constitutional framework
- Leave aside upgrading the IT infrastructure, many courts did not have even internet connections. Meanwhile, when the IT infrastructure was getting ready, courts used cyber cafes to go online.
- Scaling up the case management system proved out to be more challenging due to no internet connections at many courts
- Backing up the physical case files and setting up the tracer mechanism to make it easier to locate was a cumbersome task. Color coding techniques were used and properly sorted for locating the files easily.
- There was no single template or a single standard for court procedures across the country
- There was no proper channel to address public concerns. Later on , Office of Ombudsperson was set up to address complaints.
By 2013, efforts started showing up. People started to trust the new judicial system however the Presidential Elections in 2013 shook up the belief people were starting to gather.
Reports of corruption and opposition losing the vote count case forced people to think that courts were again rigged during the elections.
Again in 2013, another incident caused the confidence of the public to drop. The Chief registrar’s improper handling of funds caused huge no-confidence motion against the judiciary.
But Efforts Cleaned up in Judicial System
- 200 new judges and magistrates got hired
- They established 25 new courts thereby increasing greater access to judiciary in rural areas
- Massive backlog started clearing up due to standardized procedures and Case management system. From 1 million case backlogs, the count went down to only 311800 by 2014 – In Just 3 years!
- In four years of operation, the Office of the Judiciary Ombudsperson handled more than 21,000 suggestions and complaints.
- Confidence in judiciary system increased to 61% in 2013 compared to 27% in 2009 – though this number fluctuated a lot due to corruption and irregularity cases in the judiciary over the period
What India can Derive from Such Case Study?
- We have crores of cases pending in the backlog. We have to set up a framework to clear up the cases immediately
- Setting up the responsibilities and priorities of the courts. Courts should avoid getting into administrative framework and focus on judicial framework
- Increase the confidence and lower the corruption in courts
- Replicating the “Judicial Transformation Framework” in India with our country specific amendments to clean up the courts.
- Transparency in the court proceedings and institutionalized, channelized and standardized procedures to deal with the cases
- Setting up case tracking mechanism to ensure that case does not keep dragging for years and years
- Regulating the vacation period of the courts and setting up deadlines for cases to ensure timely compliance
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