Delay in the dispensation of justice in modern and fast developing Kenya is a matter of great concern. Increased awareness of one’s rights, rising educational levels, more legal representation by the ever increasing battery of lawyers all has resulted in citizens seeking redress from the courts.
Post 2010 Constitution bold attempts have been made to address the dilemma in civil, criminal and appellate courts. There is an enlarged judiciary which is serving citizens all over the country and greater specialization is evident e.g. in labour, environment and land matters. Civil Procedure Act and Rules have been revised and lukewarm attempts at better management of judicial time introduced.
The judiciary standing alone can hardly confront matters of delay. Other actors – prosecutors, lawyers, prisons and probation personnel and investigators – all can and do have an impact and generally speaking it can be stated that all these agencies have genuinely endeavoured to assist the courts.
It must also be appreciated that appointing new personnel in lower courts or in the various High Courts increases the workload of the appellate courts who additionally have also to deal with appeals from about 80 different tribunals in the country.
Delays in courts then is a matter of logistics, training, resources, procedural efficacy and also the overall legal framework of dispensing justice. It must be emphasized that delay is fundamentally a matter which must be addressed by the professionals who run various arms of the judicial system all of whom are and must be trained and be enrolled Advocates and members of the Law Society of Kenya which now will function under a new Act which has become law only in the last fortnight.
For historical reasons the provisions sadly for lay magistracy and voluntary judges were scrapped some years ago. There used to be the Justices of Peace Act and the Commissioners of Assize Act which both were repealed. In England, for example, over 1200 lay magistrates dispense justice daily on voluntary basis.
What then are the solutions of combating delay in the justice system in today’s Kenya? A few unusual innovative and perhaps controversial ideas need to be floated.
First, the Law Society of Kenya must vigorously and aggressively address the matter. The Chief Justice and the Law Society must contrive to establish a cadre of voluntary magistracy which will be empowered to deal with the day to day and mundane judicial functions leaving the main stream magistrates to deal with other weighty matters.
The Law Society of Kenya has an elaborate Continuing Legal Educational System. Its members should be allowed on daily or weekly basis to act as magistrates or even prosecutors or administrators.
Retired and not so young experienced Advocates and Civil Servants should be encouraged to contribute to the functions of the judiciary. A retired Advocate, for example, would consider it a pleasure and a national duty to act as a magistrate on pro bono or an honorarium basis.
There is also need to rope in the student community from various law faculties who must learn to undertake paralegal functions.
A little additional effort from the Judicial Training Institute can result in laws being enacted to assist the judiciary, prosecution and other institutes.
In civil matters laws on arbitration, dispute resolution and out of courts settlement has had very little impact and the procedural hurdles must be surmounted. More importantly, the changes in the civil procedure have had a negative impact. The civil proceedings have become complicated, highly technical and dependant on advanced computer technology leading to voluminous and totally unmanageable proportions in all courts.
The provisions for written submissions in all jurisdictions have not only diluted the art of advocacy, but have resulted in delay with judges and magistrates having to go through mammoth bundles of sometimes unwarranted and plagiarized submissions.
Experiments of recording of proceedings, not in long hand but by electronic recording machines, have been a disaster. In the High Court at Milimani there are wasted recording machines and gadgetry – expensive, impressive and never used. How and when will Kenyans achieve a system when magistrates and judges will not have to record every word spoken in Court in long hand as happens in other countries.
Prisoners not being brought to court on time, prosecution files not being availed, witnesses not appearing for various reasons are issues which should not be too difficult to curb even if it means taking harsh administrative action.
High handedness and misconduct by judicial officers is yet another matter which irks the litigants. There are judges and magistrates who do not deliver judgments or rulings for years. Lawyers, police and other civil servants have avenues to be reprimanded. There is need for a well structured complaints commission to be set up where judicial officers should publicly answer allegations of misconduct.
Other matters in public domain such as court houses approved and not constructed or abandoned or non – swearing of 14 judges appointed or abrupt and unplanned transfers of personnel and conflicts within the Judicial Service Commissions remain the concern of Kenyans.
One resolution the legal fraternity must make for 2015 is to mitigate delays in their functions.
I wish you all a delay free and a very happy, prosperous and conflict free 2015.