Facing a backlog of more than 60,000 cases that have been pending between five and ten years, Kenya’s judiciary has pledged to resolve more than 5,000 of them by September 28. The selected docket includes civil, criminal, and commercial cases.
It is not clear to me from the story why these 5,000 cases were chosen, or how practical it is to resolve them all so quickly and still do justice to the parties. Perhaps these cases are ripe for decision or administrative closure, and it is primarily a clerical task to clear them. But if they require resolution on the merits, this sort of frantic clearing of the docket is likely to backfire on the court system–especially since the story suggests that the judges won’t even be back from their six-week vacation until mid-September.
I welcome any thoughts in the comments from those more knowledgeable about the current conditions within the Kenyan court system.
From the story:
Microsoft and Strathmore University School of Law have devised a partnership that will see key strides made in the manner East Africa’s judicial systems operate. Named the ‘Policy Innovation Series’, the program targets to digitize the region’s judicial processes, systems, and their overall functions. The policy and discussion are in line with previously set goals that purpose to digitize local systems – an activity that has been tasked to government agencies, the justice system, and the private sector.
The partnership will digitize case management systems, e-filing processes, document management systems and courtroom applications such as audiovisual and transcriptions processes.
The current system involves so much paperwork and manual processing, that merely filing a lawsuit can take three months. Hopefully this program will vastly improve the efficient administration of justice.
A new study reveals that nearly half of Kenyans seek to resolve their legal disputes outside of court, either through informal means or by not pursuing a claim at all. The reasons are discouraging but unsurprising:
The top reason given for inaction was the belief that acting would not help, a view that was held by a third of the respondents.
The second most frequent rationale was that the other party was more powerful (20 per cent) than the complainant. Three in 10 Kenyans from the lowest income group say they did nothing because the other party was more powerful compared to one in 10 people in the highest income group. The numbers imply that the justice system is not seen as an equalising force by a sizable part of the population and that the experiences of those who sought legal services differed depending on income levels.
The study also found that 2 out of 3 Kenyans believe their court system generally protects the interests of the rich and powerful above all others, and only 1 in 3 felt that they can rely on the courts for fair justice.
Access to justice was hindered in other ways as well. Nearly 1 in 5 Kenyans said that they have no idea how to even initiate a legal claim. And those can file a claim may have to wait an eternity for resolution, since 1 in every 6 cases currently pending in the Kenyan courts is more than ten years old.
These problems are not unique to Kenya, of course. Every court system faces the considerable challenge of providing equal justice in a society that is inherently unequal. But the survey nevertheless brings those challenges into stark relief once more.
I have previously documented recent threats to the proper functioning of the court systems of India and Kenya. In India, appalling delays and overflowing dockets, combined with strife at the highest levels of the judiciary, have undermined with the effectiveness of the system and overall public confidence. Now, unfortunately, related news has been announced: the country’s lower courts face almost 6,000 judicial vacancies. Even for a country of more than one billion people, that number is shocking.
Kenya has faced a different set of challenges in recent months, after its Supreme Court invalidated a presidential election and was subjected to ongoing threats and attacks. This week’s news is of a less violent sort, but one that is perhaps even more problematic for the judiciary: more than 50,000 cases in the court system have been pending for a decade or more. And the total case backlog stands at more than 315,000.
These stories keenly illustrate the idea of judicial interdependence: courts must operate fairly and efficiently to earn public confidence, and they need adequate resources to be able to do so. When courts are properly resourced and properly run, they earn confidence and more resources–a virtuous circle. But when they are poorly run or under attack, they become inefficient and lose both resources and legitimacy–a vicious circle. The Kenyan and Indian judiciaries are locked into the vicious circle right now.
Kenya’s court-ordered repeat presidential election is scheduled for today, and the situation is a mess. Opposition leader Raila Odinga has asked his supporters to boycott the event, and there appears to be widespread confusion about how the process is supposed to work. The country’s electoral chief himself has stated that he has no faith that the country can deliver a free and fair election.
Within this maelstrom, there was a last-minute effort this week to ask the Kenyan Supreme Court to postpone the election. A hearing was apparently scheduled for Wednesday morning. But only two of the seven justices showed up for the hearing, making it impossible for the court to hear and render a decision. Among the missing justices was Philomena Mwilu, whose driver/bodyguard was shot and killed Tuesday night.
Early reports from today’s election have already centered on violence and clashes between police and protesters.
The Wall Street Journal has a good summary story on the pressures that the Kenyan judiciary has faced since its Supreme Court invalidated the country’s presidential election last month. In the run-up to the new election (scheduled for later this week), judges have faced direct threats, and the court system as a whole has faced substantial indirect threats of “judicial reform” — which everyone seems to understand as a potentially substantial cutoff in funding.
Observers of the American court system often speak of the importance of judicial independence, and rightly so. But for much of the world, third branch independence is a far more existential issue than in the United States. Threats to judicial independence are not an issue of verbal criticism, but rather of physical attacks or the diminution of critical resources. We would do well to pay more attention to these threats worldwide.
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In Kenya, that is.
“A declaration is hereby issued that the presidential election held on August 8 was not conducted in accordance to the constitution and applicable law, rendering the results invalid, null and void,” said Judge David Maraga, announcing the verdict of four out of the court’s six judges.
The electoral board “failed, neglected or refused to conduct the elections in accordance with the constitution,” Maraga added. Two of the court’s judges dissented with the verdict, saying the will of the people should not be nullified due to challenges that arose during the electoral process.
New elections must take place within 60 days, according to the ruling.
This is a remarkable display of judicial independence, unprecedented in Africa. And it appears that everyone will abide by the order peacefully. At the same time, however, President Uhuru Kenyatta has lashed out at the judiciary, promising to “fix” the judicial system should he win the revote.