Graft, case backlog and access to justice should top Judiciary's reform agenda

In our pervasive obsession with politics absent of governance, Kenya is slowly losing pride of place as Eastern Africa’s economic leader and anchor State. 

Ethiopia is the region’s largest economy today, Rwanda has worked hard and smart to position itself as a regional business hub, and Tanzania is fast awakening.

This is an important backdrop to current happenings in Kenya’s topsy-turvy rule of law environment, in which two of its most important strands: national security and justice are at the centre of current public debate.

On one hand, there are an increasing number of unanswered questions for our security agencies — National Police Service, Directorate of Criminal Investigations and National Intelligence Service in particular — around claims of State-sponsored arbitrary arrests, abductions and extra-judicial killings.

On the other the Judiciary, no stranger to calls for radical reform in the past, today finds itself under a harsh spotlight following a highly accusatory and largely social media-driven push for yet another judicial purge. 

In Kenya’s permanent political space, it is easy to connect the dots in these events to the 2027 election.  Through this speculative lens, security seeks to initially suppress dissent, then ultimately, voter choices. 

At the same time, an ill-equipped, under-prepared Independent Electoral and Boundaries Commission (IEBC), leaves the Judiciary, especially the Supreme Court, as the final guardian of the vote.  Unless, of course, the judicial purge leaves the Judiciary equally ill-equipped and underprepared. 

In our increasingly low-trust, high-suspicion settings, it is not hard to see where our collective public imagination is going.

While this path of conjecture is not unreasonable, it would be tragic at two levels. 

First, in the failure to see the larger consequences of these rule of law “events” in the negative signals they beam out not just to the rest of the world, but domestically as well. 

A messy rule of law environment is not the best selling point for investors or market confidence in general.  And the rest of the world is not waiting for Kenya to sort out the underlying politics that drives this state of affairs. 

East Africa will soon make Kenya its laggard.

Second, is the opposite danger that these issues are reduced to “it’s just politics”, and dismissed as such.  This is especially the case for the Judiciary, which is widely acknowledged to be one of Kenya’s brighter reform spots following the promulgation of the 2010 Constitution.

Lest we forget, it was a little more than 20 years ago that the Judiciary was once described, in the report by the Constitution of Kenya Review Commission, as “rivalling politicians and the police for the most criticised sector of Kenyan public society today”.   While this latter perspective does not represent the current state of play, it reminds us of where we came from.

Which brings us to the ongoing campaign by the self-styled Judiciary Reform Movement led by two former presidents of the Law Society of Kenya (LSK).  Its highlight is the targeted removal or resignation of the Chief Justice and the entire Supreme Court.  Its messaging is mixed on whether to remove specific judges in other courts or vet all judges across the court system.

Formal petitions are correctly filed at the Judicial Service Commission (JSC), but continue to be prosecuted in the public domain. 

While the campaign comes across as personal — around a general theme of misconduct, misbehaviour, malpractice and incompetence as leading indicators of deeper corruption — it is the JSC’s task to credibly respond to these complaints.

To be fair, other proposals not formally presented but canvassed mainly through social media, speak to more systemic institutional improvement – on the resolution of cases and appeals, hearing of applications and delivery of judgments and rulings. 

From this has emerged constructive commentary from law practitioners on related concerns ranging from indolence and absenteeism in courts to the quality of judgments. 

As the LSK has itself put it, this is a moment for “drastic, full-scale not piecemeal” reform.

Two other important perspectives have emerged from practitioner feedback.

First, in commenting on official responses to the campaign from within the Judiciary, a dual observation that independence must walk hand in hand with accountability, and formal avenues for making complaints could be made more effective. 

Second, while judiciary reform does not necessarily mean judiciary lynching or purging, there is value in considering mechanisms that do better to “refresh” the judiciary than have been used in the past.

Again, to be fair, the Judiciary continues to acknowledge three pressing priorities.  Dealing with corruption, reducing the case backlog and expanding access to justice.  This is all firmly on public record.

Yet, this looks like a conversation of lawyers – judges on one side, advocates on the other.  Where is the voice of litigants and the general public?  To be clear, the Judiciary has established forums — beyond complaints mechanisms such as the JSC and Judiciary Ombudsman — including Bar-Bench Committees (judiciary and lawyers again) and Court User Committees.  In truth, not everything is for committees.

What else is possible?  One proactive response the Judiciary has offered for the current situation is a Judiciary Dialogue Day – slated for January 31, 2025 — which has invited the public to offer their views on; judiciary processes; how to serve them better and; how to build better stakeholder relationships.  While this may sound rather perfunctory — akin to the box-ticking that is common to public participation across the whole of government — there is an opportunity here to develop a more innovative conversation.

A people-centred approach must be at the core of this conversation.  This is a social justice approach which, among other things, puts people and their legal needs at the centre of justice systems, works to solve justice problems, improves justice journeys and empowers access to services and opportunities, not solely related to justice systems, but, say, our education and health systems, or economic opportunities.

In the current Judiciary context, which speaks to the formal justice system, the entire reform agenda, from the performance of judges and magistrates to the quality of related services (such as legal aid) is part of the justice journey.  In a justice context, this journey includes other actors, including non-state actors.

It is a different conversation, but it is one that ultimately brings together, in its own subtle way, the objectives of the current reform movement and the Judiciary.  It is instructive that the Judiciary itself is fully engaged in these alternative justice journeys; supporting a multi-door approach to justice.

So as we think about those petitions and other demands emerging from the reform movement, we will close with some data for reflection.  Kenya’s last Justice Needs Survey, done in 2017, estimated that Kenyans generate an average of seven million complex legal problems a year that require legal resolution, with crime, land and family disputes comprising the bulk of these problems.

 Only 10 per cent of these disputes go through our court system, while 40 per cent are resolved through the police, chiefs and other executive administrative structures.  Indeed, it was estimated that 20 million Kenyans are excluded from the formal justice system.  How do we improve the Judiciary as we expand access to justice?  If we are to centre this rule of law conversation in our politics, this is our real political question for now and the future.