Sensitive to the preceding decades of an undermined judiciary, the 2010 Constitution drafting committee’s approach to the parts of the Constitution pertaining to the Judiciary[7] placed strong emphasis on its independence, broad cititizens’ rights specifically upholding the rule of law. However, a question currently being raised is whether or not the 2010 Constitution went too far in this matter of judicial independence, as the courts have now been plagued by corruption, inefficiency and politicisation. The level of distrust in the Kenyan judiciary has increased recently. The backlog of cases in judicial dockets has multiplied by a factor of ten, and as a consequence trial delays have more than doubled.[8] It is trite that justice delayed is justice denied. The effects of a failure to deliver justice on time can have deleterious impact on the lives of all parties involved, in particular the indignant party. Over the last decade, the performance of the courts has paradoxically deteriorated, and judges have also been constantly involved in practices of corruption and politicisation. All these violate fundamental rights. The net effect of this places Kenya in a bad light in relation to its international law obligations amongst its peers. Thus, the gravity of this issue demands calculated intervention immediately.
This article analytically investigates why the rule of law looks much better on paper than it is in practice in Kenya. In doing so, it provides not only an overview of the legal framework within which the Kenyan justice system operates but also reveals a broad catalogue of factors clogging the cogs of wheels of justice including judicial delay, corruption and politicisation.[9] These problems have hindered the realization of the rule of law by dramatically reducing the level of social confidence in the overall judicial system. For decades, researchers and court analysts have touted adding more judges and magistrates as a solution to delay in the courts, yet delay persists. Hence, the idea of adding more judges is an old solution that hasn’t worked. Therefore, this article offers new suggestions and recommendations with a view to remedial actions. This article thereafter culminates into a reasonable conclusion.
The legal framework within which the Kenyan justice system operates
The current justice system operates within a legal framework made up of the Constitution, legislations, precedents and international law. Below is an overview of the key legal instruments within the Kenyan justice machinery.
Constitution of Kenya:[10] Article 48 provides that the State shall ensure access to justice for all persons. Further, Article 159 states that the Judiciary, an independent custodian of justice in Kenya, shall administer justice in a fair, timely, accountable and accessible manner and uphold the rule of law. Also, among the national values and principles of governance enunciated under Article 10, it includes social justice and the rule of law. Moreover, the Judicial Service Commission established under Article 172 has been mandated to promote and facilitate the independence and accountability of the Judiciary and the efficient, effective and transparent administration of justice. Article 19 further states that the purpose of recognizing and protecting human rights and fundamental freedoms is to preserve the dignity of individuals and communities and to promote social justice.[11]
The International Covenant on Civil and Political Rights (ICCPR):[12] Article 14 states that in the case of criminal charge, cases must be disposed by courts without undue delay. Disposal includes commencement, end and judgment in the case.[13]
The African [Banjul] Charter on Human and Peoples’ Rights:[14] Article 7 provides that every individual shall have the right to have his cause heard. This comprises: the right to be tried within a reasonable time.[15]
The Convention on the Rights of the Child: Article 40(2) (b) (iii) States that every child accused of violating penal law has the right to have the matter determined without delay.
Identifying possible factors impeding justice delivery in Kenya
The foundation of a civilized society is always rooted in justice.[16] Justice distinguishes the rights as well as responsibilities of the citizenry.[17] In “Roman laws” justice was referred to as the “natural or positive law”. Aristotle in “Book V” of “Nicomachean Ethics” states that justice is a genus of disposition that insists any humankind to act judiciously and justly. So, justice is the foremost characteristic of an individual that not only is appreciated by humans but is also admired by the whole society.[18] The coordination and coherence, reconciliation, safety and decent governance in the society are ensured by justice.[19] Our peaceful existence depends on the administration of justice. No doubt peace and justice are two sides of the same coin.[20] The Constitution is thus not merely hortatory but the fundamental and supreme law of the land, the real and living document that guides, defines, and permits all actions by the Judiciary, Executive and the Legislature.[21] No individual or organ is above the law or can act in defiance of constitutional prescriptions.
Despite of all the importance of upholding the rule of law, the justice system is still confronted with many problems all over the world. The dissatisfaction with the administration of justice is as old as law. The Kenyan Judiciary has long been in a state of crisis, and remains in such a state, despite several attempts at reforming it. Overcrowded dockets, corruption, delays and politicisation are among the problems being lamented.[22] Failure to ensure swift justice is the most horrible problem and repeatedly complained about and the same is considered the main reason for the prevalent dissatisfaction with the Kenyan legal system. The problem of delay has turned into such a colossal proportion that unless it is solved speedily and effectively, it will in the near future crush completely the whole edifice of our judicial system. Also, in relation to the lack of social confidence in the Judiciary, Kenyans believe that mostly rich individuals and politicians are never suitably punished for breaking the law. They mostly bribe their way out of the teeth of justice. These and many more problems which are impeding justice delivery and hence undermining the rule of law in Kenya are discussed at length below.
Judicial delay
Keeping aside the anecdotes of senior counsels which they can recount about the problem, what do we really know about the speed of litigation? Can we properly define what we connote by “judicial delay”? Defining the term judicial delay is necessary for the purpose of establishing its existence, depicting its prevalence and discovering its causes, because in the absence of a definition, judicial delay is a matter of individual perception. What is conceived as quick and efficient by a court or a party may be wrong for the other side.[23] Thus delay in the context of justice simply denotes the time consumed in the disposal of a case, in excess of the time within which a case can be reasonably expected to be decided by the court. An expected life span of a case is an inherent part of the system. No one expects a case to be decided overnight. However, difficulty arises when the actual time taken for disposal of the case far exceeds its expected life span and that is when we say there is delay in the dispensation of justice.[24]
Although the problem of delay in justice is of a global dimension, the situation has become alarming in Kenya.[25] The problem of delays in the disposal of cases has grown in magnitude to an extent that it is not only a cause of serious concern but a problem which, it may be said without exaggeration, is eroding the very system of administration of justice in Kenya.[26] It has undercut the public confidence in the judiciary.[27] The assurance of expeditious justice is foremost for the survival of democracy. It is ironic that a country like Kenya which is a democratic country having a reasonable legal system has the least execution of justice. It is factual that there is a need for proper and reasonable time for decreeing a case and no case can be decreed instantly. The court needs a proper time to inspect the case. So usually reference to the term speedy justice means fair expeditious not hurried and hasted.
Kenyan courts in their judgments very often describe and define the “concept of justice” and concede that courts are the only institutions that are working for the “propagation of natural justice and expeditious justice”. The courts very truly state that justice is hope, delayed justice is denied justice, hurried justice is buried justice, justice is a fundamental principle of a civilized society and many more. But justice is the most eminent and most violated legitimate principle in Kenya. Practically in Kenya, justice, is not more than a mere myth and it can be evident from millions of backlog cases pending in Kenyan Courts. Delay disturbs the administration of justice, it suspends the rectification of wrongs, causing courts congestion, and putting pressure on judges to take short cuts, all these consequences are very dangerous but the most horrible of them is at the place of fact-finding where the chances of error increase quickly as time elapses between the original fact and its judicial determination, diminishing the probability of a right decision.[28]
The results of a survey among lawyers, judges, and prosecutors, all academics from various law faculties across the country, indicate that judicial delay is a major problem in the Kenyan Judiciary. At the end of the period of 2021 and 2022 financial year, there were 521, 823 cases pending before the Magistrates’ Court alone with 233, 177 of these cases having been in the court system for over one year. This is what’s referred to as backlog cases. This problem of delay is common to both civil and criminal justice systems. This indicates that legal disputes are not being effectively resolved.
For decades, researchers and court analysts have touted adding judges as a solution to delay in the courts, yet delay persists. Hence, the idea of adding more judges is an old solution that hasn’t worked; what is really needed is more efficiency in litigation.[29] The appointment of a new judge is like the establishment of a court, which is both expensive and complicated. In the wake of poor court organization and administration and poor time management by judges; an increase in court’s resources wouldn’t have a substantial effect on the time of litigation. Efficiency, to be precise, is the relation between inputs (resources, such as judges, financing) and output (mostly decisions) on how much money, judges, etc. are needed to process and decide a given number of cases.[30] Processing more cases with the same number of judges or the same amount of funding would then constitute increasing efficiency. For speedy disposition of cases the adjudicator should have a sound knowledge of laws; since that is the instrument through which he is expected to dispense justice.[31] A judge having inadequate knowledge of the law is a nuisance, and his poor knowledge of the subject may cause hurdles in the way of speedy dispute resolution.[32]
Also, researchers agree that unnecessary adjournments by the Kenyan Judiciary are among the main causes of delay in the disposition of cases. These adjournments cause frustration and inconvenience to the litigants by constantly forcing them to come to court sessions and spend their money and time with no visible end. Moreover, adjournments related to interlocutory proceedings cause extra damage because they result in the postponement of the actual proceedings of the case on merit. It should be kept in mind that it is impossible to totally eliminate the adjournments. Granting adjournment on the application of either party is the discretion of the judge and the superior courts seldom interfere with these discretionary powers of the judge.[33] The judicial and judicious use of these discretionary powers by the judge in the overall interest of justice can be the only solution to the problem of delay due to indiscriminate adjournments. The Judges are least perturbed in granting adjournments and prefer to give blanket approval to adjournments rather than make the effort in every case to distinguish between legitimate and concocted reasons for adjournments.[34] For instance, counsel for a party requests for adjournment, without showing any plausible cause, or that counsel for both parties requests for adjournment. A decision by one lawyer to request an adjournment of some pending deadline or court appearance is not contested by the other side. This form of mutual accommodation among lawyers typically results in unopposed requests for continuances that some courts grant almost automatically. Since the Advocates are often paid by the number of appearances before the court, they tend to seek adjournments where possible; lengthening the course of proceedings significantly. It has also been observed that adjournments are granted when witnesses and defendants do not appear at the hearings without any imposition of costs on the party at fault. In February this year, the Chief Justice Martha Koome attributed the case backlog and delayed justice to the perennial adjournment over petty issues and urged the courts to adopt a “no adjournment policy”.[35] However, this new directive is yet to be enforced. Courts, especially the Magistrates’ Courts are still adjourning cases.
In some instances also, a court’s action converts into harassment where one of the parties abuses the court process by obtaining interim injunctions without any intention of seriously prosecuting the case. Also, a party with a weak case will always resort to numerous applications for adjournment and frivolous interlocutory applications. These miscellaneous applications and the reluctance of the judges to restrict them cause the courts to grant frequent adjournments of the trial. It is required that the court, not the lawyers or the litigants, controls the pace of litigation. Judges being strict with the advocates/parties on the need to meet the deadlines can bring about a substantial reduction in delay.[36] They might face harsh responses from lawyers/prosecutors for interfering with their scheduling prerogatives, but it is achievable with a commitment to delivering quality justice efficiently. When a court puts pressure on lawyers to prepare their cases extremely quickly, they will do everything as rapidly as possible and spend a lot of money in the short period of time available to them, because they know that they have only one shot at winning. Once the courts have undertaken the responsibility of speedy and efficient dispute resolution, public trust and confidence will boost.[37]
Lack of punctuality and laxity on the part of the judges are also major contributors to the problem of delay in justice. The habitual coming late in court is one of the malaises afflicting the Judiciary which has compounded the problem of justice delivery system and compromised the image of the judiciary in Kenya. Lawyers have always voiced complaints against the judges for not coming to court on time. It is impossible to get the maximum turnover in the matter of disposal of cases unless the judges are punctual in their duties and sit in the court for at least six hours every day. If the court atmosphere is such that it begins and ends on time, then the litigants and lawyers will be ready at the already specified time to proceed with their case. A judge must be regular in the performance of his duty. It does not speak well of a judge not to sit on working and juridical days. The judge should equally ensure that he sits promptly to conduct the business of the court. A judge should strive to acquire the reputation of sitting as early as 9:00 am.
Also, delays occur due to the transfer of Judges from one station to another. Transfer and rotation of the judges will create a situation where the judge who heard the testimony in the case is being transferred to another station or court, this untimely transfer of judges seriously impedes the process of continuous trial as the new judge will have to repeat some steps already fulfilled.
There is also the problem regarding the ‘generosity’ of court appeals. Appeals have been a problematic element of legal systems across the globe, and Kenya has been no exception. The right to court of appeal is obviously an important guarantee of judicial fairness. It prevents arbitrary rulings from becoming final decisions. The right of appeal is certainly not lacking in Kenya. On the contrary, the problem is an excess of appeals which prevents rapid resolution of litigation. Bad-faith litigants can postpone final decisions by taking undue advantage of this generous appeals system. In Kenya, we have been informed that the majority of appeals have no merit and are either speculative or delaying tactics, but there is no evidence to support this proposition. These appeals are one of the main causes of delay in any legal system and the delay just adds to the legal costs incurred by respective parties.
Court staff, who generally are insufficiently trained, and lack experience also contribute to the slow pace of the justice machinery. Every cog, irrespective of its size, is crucial in the system if the wheels of justice are required to turn smoothly. In the Magistrates Court sector, for instance, the incidence of unskilled court interpreters and clerks is especially noticed. The legal environment requires not just an ordinary clerk, but a qualified legal clerk. An entry requirement of at least a bachelor’s in law for the court clerks would improve the current situation in our Magistrates Courts. Also, court interpreters need to meet certain minimum requirements in terms of professional qualifications. Also, in every court that I have visited, there was a clear lack of effective communication between court staff and court users, suggesting there is no effective communication strategy for Courts. There may not be a problem with the quality and source of the information available but probably with the way it is disseminated. It is important that, in an organization, the whole organization and external stakeholders are aware of the policies, objectives, projects and performance of the organization. Everyone accessing the court should receive a consistent message and fully understand the plans, the timetable for change, and the success criteria for what is planned by the Court. The key to success in our technological era of information overload is that everyone feels that they are part of the court and have ownership of what is planned rather than being excluded. A successful strategy improves morale and efficiency as everyone shares one goal. The message has to be received by everyone and they must have an opportunity to comment, whether it is through emails, bulletins, presentations or social media.
Due to the constant postponement of trials, key witnesses tend to die before matters are concluded and suspects walk free. Where accused persons are eventually tried, the trial is not handled speedily, and the handing down of judgment for that particular matter takes even longer. Judicial delays also provide the opportunities for corruption; giving time to lawyers or litigants to approach judges to manipulate decisions improperly. This needs to change!
Corruption
The Kenyan Judiciary has been so rife with corruption that years could be spent writing about them. The media has regularly reported corruption scandals among judges, but lawyers and legal scholars have not given the problem any serious attention. Although honest lawyers are also victims of such corruption, it seems that they avoid addressing the problem out of a reasonable fear of possible retaliation from disgruntled judges. Corruption in the courts has been a historical problem, one that still manifests itself today. To give some idea of how deep-rooted this gross misconduct in the Judiciary is, one need only mention the following recent story involving suspended High Court Judge Juma Chitembwe.
A 12-member tribunal, unanimously made the recommendation to President William Ruto in February this year, after Judge Chitembwe was found guilty of four out of six allegations of misconduct leveled against him by his employer, the Judicial Service Commission.[38] One of the counts was whether the Hon. Judge acquired a proprietary interest in land parcel No Kwale/Galu Kinondo/779 which was the subject of Malindi Succession Cause No. 97 of 2015 which was pending before him. The Tribunal found that there was sufficient evidence to prove the ground that the Hon. Judge acquired an interest over the said land parcel through his relative and proxy, Mr Amana Saidi Jirani contrary to Article 73(2)(b) of the Constitution 2010 that requires State officers to act objectively and impartially in decision making. Retired President Uhuru Kenyatta had tasked the 12-member tribunal to investigate allegations against Chitembwe on May 19, 2022. The Judicial Service Commission had recommended his removal from office on May 4, 2022, and Uhuru suspended him in line with the recommendations. Deputy President William Ruto confirmed receiving the tribunal’s recommendations on February 7, 2023, stating that he would comply with the Constitution.[39] Justice Juma Chitembwe, has however lodged an appeal to the Supreme Court following his removal from office by a tribunal led by Lady Justice Mumbi Ngugi. Chitembwe, who is represented by P.W. Wena and Company Advocates, has contested the decision by the tribunal, stating that he did not agree with the move to oust him. Chitembwe has argued that his conduct was in line with the Constitution and differed from the findings of the tribunal. Chitembwe’s appeal now throws the matter to the Chief Justice Martha Koome-led Supreme Court, which will examine whether the tribunal’s findings and recommendation are consistent with the Constitution. The matter raises a crucial question on the application of the Constitution in the administration of justice and whether the decision of the tribunal violated the law.[40] Chitembwe’s appeal is significant since it touches on the judiciary’s independence, which is a critical pillar of democracy. The outcome of the appeal will determine whether the tribunal acted within the law and whether the judiciary can discharge its mandate without undue interference.[41]
Kenya’s Chief Justice Martha Koome, in an interview with BBC, admitted that corruption remains a menace in and out of the Judiciary, terming it “a national embarrassment”.[42] CJ Koome told the BBC that she was concerned that the prosecution of cases involving corruption and embezzlement of public funds was taking too long. This shows that the Judiciary has long been marred by claims of corruption.[43] Bribery has been cited as one of the causes of an undermined rule of law in that suspects who are wealthy bribe their way out sooner than expected. White collar crimes are singled out as the most problematic and prone to delay due to corruption within the judicial system. Law enforcement have occasionally highlighted a decrease in morale as they sometimes arrest suspects knowing that their cases would not be deliberated with finality. The extent of corruption within the justice machinery is so high, that law enforcement themselves, feel that there are people whom they cannot arrest because of their connections socially, financially, politically and otherwise. The backlog of cases has given judges the ability to dismiss old cases without any hearing. The link between corruption and low morale is very deeply ingrained within all levels of the justice system. State police themselves feel the seat of corruption is within the prosecution, whilst prosecutors blame presiding officers for corrupt tendencies.
In some courts also, clerks are bribed in order to obtain a trial date quickly. If the trial date is not obtained quickly, clients lose confidence in their legal counsel, and some key witnesses die before the trial resumes. Those who survive tend to forget the details of their testimonies. The other drawback of such a corrupt mechanism is that it has no checks and balances but holds both accused persons and counsel at ransom. Under such circumstances, delivery of justice cannot be guaranteed and justice itself becomes inaccessible. This also needs to change!
Politicisation
Being a transformative Constitution, the 2010 Constitution of Kenya made the Judiciary a strong and independent institution. The end result is an empowered judiciary willing to take on any institution as they uphold the rule of law and the fair administration of justice. This has put the judiciary on the spotlight. The result has been a backlash from the political elite which consists of those in government and those in the opposition depending on the kinds of judgements delivered from the court. Some of these judgements have been seen as an abuse of independence, some even termed acts of judicial overreach. These stem mainly from Judicial Review. By checking the executive and legislature, Judicial Review has a risk of replacing the rule of law with the rule of judges.[44] When exercising Judicial Review functions, judges are sometimes seen to overstep their mandate and this becomes the bone of contention. Judicial overreach is simply the rule of judges when judges overstep their mandate and override legislative and executive functions. While judicial independence is essential to check governmental arbitrariness, judges must not abuse the principle so as to obstruct government policies they personally (and ideologically) dislike. This doesn’t mean that the Judiciary hasn’t made some of the transformative pronouncements. The Judiciary in Kenya has stopped huge infrastructural projects,[45] ordered a repeat presidential election,[46] stopped executive appointments,[47] declared executive orders unconstitutional[48] and even termed parliament’s composition as unconstitutional.[49] Moreover, the judgment by the Supreme court of Kenya pulled the breaks of the proverbial BBI (Building Bridges Initiative) train. By invoking the popular BBI campaigns’ parlance and slogans, it can be said that the ‘judicial quintet’ comprising of Chief justice Martha Koome, Deputy Chief justice Mwilu, Justice Njoki Ndungu, Justice Smokin Wanjala and others, in seemingly perfect chorus, out sang the BBI promoters’ self styled rendition of constitutional review, popularly dubbed as the ‘BBI reggae’. The judgement conjured both real time and long term political impacts.[50]
Also, although Kenya’s Judiciary has proven itself capable of serving as an effective arbiter of elections-related conflicts and bringing finality to elections, there remain many challenges to the country’s democracy. These include the politicisation of ethnicity. This is evidenced by the pressure imposed on judicial and other officials to act in favour of one ethnic group or another.[51] The judiciary has shown no ability or inclination to uphold the rule of law against the express or perceived whims and interests of the executive and individual senior government officials, their business associates, and cronies. What the 2010 Constitution did not foresee, is that in this Republic, the truth is very much malleable to the biases and preferences of whoever holds the sceptre in any given five-year term. Judicial power in Kenya has become dependent on its capacity to advance the interests of the Executive, which if met with a defiant bench, simply disregards court decrees.[52] Kenya’s democracy cannot function effectively if its public officials, including its judges, serve as representatives of their ethnic groups. In performing their jobs, civil servants and politicians must be accountable to the Constitution and the people of Kenya. It is only through such an approach to public service that citizens can have trust in their institutions and leaders, including the decisions that they make.[53]
Kenya could adopt a different approach to the appointment of judges if it is willing to change the politicisation of the Judiciary. In Kenya, judges are appointed by the President following the recommendation of the Judicial Service Commission and approval of the National Assembly.[54] This essentially means that judges are appointed by an individual, a factor that may encourage allegiance to the said individual rather than to the administration of justice to the public. It may also mean that judges, pledging allegiance to the executive, may overstep their mandate without worrying about any consequences. The Ethiopian model of appointing judges is the inverse of the Kenyan model. In Ethiopia, top judges are recommended for appointment by the prime minister to the House of People’s representatives, who in turn appoints the judges. In this model, we see an individual recommend a candidate for appointment and a group of people doing the actual appointment. This counters any feelings of indebtedness as it was an appointment arrived at by a whole panel rather than individual. I strongly suggest that the Kenyan model of appointing judges be modified to emulate the Ethiopian one as it is a more promising measure in as far as curbing judicial overreach is concerned.
Possible Reforms
•Reporting of corruption : Until recently, there was no concrete reporting mechanism for corruption in the country. The Anti-Corruption Commission is yet to gain the confidence of the public. Since corruption is deeply ingrained in the justice machinery in Kenya, there is a need to encourage the use of such a forum. The judiciary should take the initiative to teach the public on how this commission can be utilized to fight corruption within the justice machinery.
•Further, the Judiciary should have an effective working strategy that every judge or magistrate should enforce such as a working time management system which would improve the efficiency of the targeted courts. The rate of clearance of cases ought to be increased, and the duration of the disposition time (the time needed to resolve the case after filing it) decreased significantly.
•The few over-performing courts should be identified, their best practise documented and promoted as a benchmark for the nonperforming courts. At the same time, such courts should be feted; their staff awarded and encouraged to perform even better. This should be done in a manner than is sustainable and eliminate unfair practices.
• The Kenyan model of appointing judges be modified to emulate the Ethiopian one as it is a more promising measure in as far as curbing politicisation of the Judiciary.
•There is a need to recruit more competent court interpreters and other Court staff.
•Establishment of more small claims courts: Kenya has to establish more small claims courts. This would take away the pressure from the Magistrates Court, which are currently overwhelmed with the highest number of cases. This should be done simultaneously with increasing the financial jurisdiction of Magistrates Courts. Aggrieved persons with minor matters will not have to burden the already overstretched Magistrates Courts as a speedy, cheap and accessible forum would already be in place.
•In many preliminary hearings, the physical presence of the party or a lawyer is unnecessary. Virtual hearings have been clearly very successful and should continue being encouraged especially as technology is becoming more affordable. One area where video hearings could be developed concerns defendants in custody (prison video link hearings). The need to transport prisoners to court is costly, time-consuming and could present a security risk. Although it would be normal for the defendant to be physically present during the actual trial this need is probably unnecessary for all other hearings.
•The Judiciary should respect the rule of law. The rule of law means the existence of clear, stable, general norms, which must apply equally to everyone regardless of a person’s social status or position in the public administration. Characterized in this way, the rule of law stands in opposition to extemporary decisions expressing the mere personal will of judges. In other words, this legal ideal cannot be truly developed if judges pass rulings without being respectful of the existence and content of legal rules. In a system that truly adheres to the rule of law, citizens must be endowed with the basic right to submit their complaints before the impartial adjudication of an independent, law-abiding judicial system. In addition, access to the courts must be provided without long delays, corruption, or excessive legal costs in filing any lawsuit as such issues would turn even ‘enlightened’ legislation into a dead letter.
• Allocate court resources on a need base. This will counter resource under utilisation which may be the reason for the inefficiency still experienced in a majority of the courts. A survey should be done with the aim of documenting resources in existing courts, gauging their level of utilisation and using this as the basis for reallocation and allocation of more resources.
•The best practices so far in place should be implemented going forward with the same or more intensity. Courts behind should be facilitated and supported in the process. This should be based on an evaluation of reforms so far implemented by the courts.
Conclusion
In Kenya, the courts acquired from the 2010 Constitution a considerable degree of autonomy on administrative, financial, and disciplinary grounds. This fact is quite unique in the context of other parts of Africa, a region with deeply rooted problems of political (and constitutional) stability. However, as seen from the discussion above, a question currently being raised is whether or not the 2010 Constitution went too far in this matter of judicial independence, as the courts have now been plagued by corruption, inefficiency and politicisation. Kenya’s justice machinery is heavily clogged and suffers from an unascertainable number of years of backlog of cases. The approach to solve the problem of delay, corruption and politicisation is multi-faceted. It needs the participation of all stakeholders in the system. The judiciary cannot do it alone, certainly. Everyone in the justice system has to do their part. As a result there is a need for a holistic approach to address the current barriers in access to justice in the country. Of note is the immediate need to uproot all forms of corruption in the justice system and enhance the efficiency of the justice delivery. Further there is a need to conduct a multi-stakeholder consultative process, including both service providers and consumers of the service, if a sustainable overhauling of the justice system is to be achieved. At the end of the day, everyone will benefit from a more efficient system. The hope still remains that the saying “ justice delayed is justice denied” will be but an achronistic nightmare.
The author is a finalist at the JKUAT-Karen School of Law.
[1] Angelo B. Dube, Assessment Study on Delayed Justice Delivery, p 3, Final Report July 2010.
[2] Ibid.
[3] Justice and the Rule of Law. Available at https://international-partnerships.ec.europa.eu/policies/peace-and-governance/justice-and-rule-law_en Accessed on 5 June 2023.
[4] Rule of Law and Justice. Available at https://www.un.org/ruleoflaw/thematic-areas/justice-2/ Accessed on 5 June 2023.
[5] Marjolein Kool and Dirk Van Dierendonck, “Servant Leadership and Commitment to Change, the Mediating Role of Justice and Optimism”, Journal of Organizational Change Management, May 2012, 25(3): 422-433.
[6] Ibid.
[7] Chapter 10, Constitution of Kenya, 2010.
[8] Courts Urged to Expedite Backlog Cases. Available at https://www.kenyanews.go.ke/courts-urged-to-expedite-backlog-cases/ Accessed on 5 June 2023.
[9] Alam, M. (2010). Problems of delay and backlog cases. The Daily Star.
[10] The Constitution of Kenya 2010.
[11] Ibid.
[12] Adopted in December 16, 1966.
[13] Ibid.
[14] Adopted in June 27, 1981.
[15] Ibid.
[16] Angelo B. Dube, Assessment Study on Delayed Justice Delivery, p 3, Final Report July 2010.
[17] Rawls, J. (1999), “A Theory of Justice,” Revised edition, Harvard University Press, Cambridge. P 3.
[18] Ibid.
[19] G.W. Paton, A Textbook of Jurisprudence, Fourth Edition, Oxford University Press, 1973.
[20] Ibid.
[21] See HENRY J. STEINER & PHILIP ALSTON, INTERNATIONAL HUMAN RIGHTS IN CONTEXT: LAW, POLITICS, MORALS 711-12(1996).
[22] Leo Kipkegoi, “The Case Backlog Problem in Kenya’s Judiciary and the Solutions”, available at https://ssrn.co/abstract=3841487 Accessed on 5 June 2023.
[23] Van Rhee, C. H. (2004). The law’s delay: essays on undue delay in civil litigation (Vol. 47): Intersentia nv.
[24] Vandana Ajay Kumar, “Judicial Delays in India: Causes and Remedies,” Journal of Law, Policy and Globalization, ISSN 2224-3259, Vol. 4, 2012.
[25] Leo Kipkegoi, “The Case Backlog Problem in Kenya’s Judiciary and the Solutions”, available at https://ssrn.co/abstract=3841487 Accessed on 5 June 2023.
[26] Ibid.
[27] Courts Urged to Expedite Backlog Cases. Available at https://www.kenyanews.go.ke/courts-urged-to-expedite-backlog-cases/ Accessed on 5 June 2023.
[28] See Leo Kipkegoi, n. 25.
[29] Jared Odhiambo, “Technical Efficiency of the Kenyan Judiciary: A case of the Magistrates’Courts”, Research Paper Submitted in Partial Fulfilment of the Requirements for the Award of a Master’s of Arts Economic Degree by the University of Nairobi, School of Economics, 2016, p.3-5.
[30] Ibid.
[31] Available at https://www.africaportal.org/publications/most-kenyans-seek-and-find-justice-outside-formal-court-system/ Accessed on 5 June 2023.
[32] Ibid.
[33] See Stanley Kaiyongi Mwenda V Cyprian Kubai [2000].
[34] Angelo B. Dube, Assessment Study on Delayed Justice Delivery, p 3, Final Report July 2010.
[35] Available at https://ntvkenya.co.ke/news/cj-koome-sets-three-year-limit-for-court-cases-suggests-no-adjournment-policy/ Accessed on 5 June 2023.
[36] Ibid.
[37] Armytage, L. S. (1993). The need for continuing judicial education. University of New South Wales Law Journal 16(2), 536- 584.
[38] https://ntvkenya.co.ke/news/justice-chitembwe-appeals-ouster-from-office-at-the-supreme-court/ Accessed on 6 June 2023.
[39] Ibid.
[40] Ibid.
[41] Ibid.
[42] https://www.bbc.com/news/world-africa-58502648.amp Accessed on 6 June 2023.
[43] Ibid.
[44] Aziz, Sahar F., Independence Without Accountability: The Judicial Paradox of Egypt’s Failed Transition to Democracy (March 21, 2015). 120 Penn State L. Rev. 101(2016), Texas A&M University School of Law Legal Studies. Research Paper No. 16-07.
[45] Communist Party of Kenya v Nairobi Metropolitan Services and 3 others; National Environment Management Authority and Another (Interested Parties) 2022 eKLR.
[46] Raila Amolo Odinga & Another v The Independent Electoral Boundaries Commission and 2 others (2017) eKLR.
[47] Katiba Institute & another v Attorney General & another; Julius Karangi & 128 others (interested parties) 2021 eKLR.
[48] Law Society of Kenya v Office of the Attorney General & another; Judicial Service Commission (Interested party) 2020 eKLR.
[49] Senate of the Republic of Kenya & 4 others v Speaker of the National Assembly & another; Attorney General & 7 Others (Interested Parties)[2020] eKLR.
[50] Judicial Power in Kenya Increasingly Dependent on Political Goodwill . Available at https://www.standardmedia.co.ke/amp/article/2001464992/judicial-power-in-kenya-increasingly-dependent-on-political-goodwill Accessed on 6 June 2023.
[51] How Kenya Judiciary can break the Cycle of electoral violence. Available at https://theconversation.com/amp/how-kenyas-judiciary-can-break-the-cycle-of-electoral-violence-182710 Accessed on 6 June 2023.
[52] Judicial Power in Kenya Increasingly Dependent on Political Goodwill . Available at https://www.standardmedia.co.ke/amp/article/2001464992/judicial-power-in-kenya-increasingly-dependent-on-political-goodwill Accessed on 6 June 2023.
[53] Ibid.
[54] Article 166 of the Constitution of Kenya 2010.
