Transforming the courts in Kenya

The initiative

In 2012, Kenya voted on a new constitution, which included measures for restructuring the judiciary. One such measure was a vetting process for judges, in which an independent board of Kenyan lawyers, civil society leaders, and foreign judges reviewed the record of each serving judicial officer to determine whether he or she was suitable to remain on the bench.

The Judicial Transformation Framework - which initially covered the period 2012 to 2016 - adopted “a holistic approach to the judiciary's development, built on sector-wide collaboration, strategic and technical partnerships and the use of benchmarks based on emerging and contemporary national, regional and global smart practice”. [2]

The intention of this approach was to maintain the judiciary's independence, while still being able to collaborate with other departments of government to make Kenya a constitutional democracy founded on the rule of law. The components of the transformation were to include:

• Transforming court procedures, processes, organisational culture and management to make them responsive, friendly, and effective as well as accountable and transparent.
• Reordering the judiciary's administrative and judicial processes to enhance the delivery of services, speed up the judicial process and improve access to justice, especially for marginalised and traditionally underserved communities.
• Improving the working environment and offering career advancement possibilities to all, without discrimination.
• Transforming the judiciary's relationship with other justice institutions and other stakeholders involved in court administration.

The challenge

The contested result of the 2007 Kenyan election resulted in high levels of civil unrest and many deaths. The breakdown of civil order was considered to be a serious indictment of the Kenyan judiciary`s inability to administer justice effectively and to maintain the rule of law in the face of political influence. Many rights and fundamental freedoms of Kenyans were damaged during this period, and few of the victims had confidence to petition the courts over election grievances or human rights violations.

The weaknesses were further exposed in the findings of the Waki Commission, which was set up to investigate the violence. The Commission found that the failures and weakness of the criminal justice system had adversely impacted the rule of law and it called for urgent corrective measures.

Four months after assuming office, the Chief Justice Hon Willy Mutunga reported in October 2011 that “we found an institution so frail in its structures; so thin in resources; so low on its confidence; so deficient in integrity; so weak in public support that to have expected it to deliver justice was to be wildly optimistic. We found a judiciary that was designed to fail.” [1] This required a complete overhaul of the judicial system of Kenya under his leadership.

The public impact

It is clear that Kenya had a much greater faith in the machinery of justice after the reforms had begun than they had in 2007. A former whistleblower, John Githongo, was able to say in 2013 (see Public confidence below) that “before now there has never been this level of confidence in the judiciary”.

As of 2014, the most recent year for which case audit data were available, the backlog of cases pending for more than a year stood at 311,800.

By October 2015, the registry manual for the High Court had been finalised and published, and manuals for the magistrates' courts and the Court of Appeal were undergoing review by judicial officers and staff. The courts were in the process of implementing practices outlined in the manuals, but the extent of the implementations varied.

During its four years of operation so far, the new Office of the Judiciary Ombudsperson has handled more than 21,000 complaints and suggestions.

Stakeholder engagement

The reform committee consulted with the judges and other experts to design the process, and there was some involvement of external stakeholders, such as legal NGOs and professors of law in drafting the framework and of foreign judges in the assessments of Kenyan legal officers.

“After taking office in June 2011, Mutunga assembled a team to take stock of the judiciary's challenges and develop a blueprint for reform. Key members were Joel Ngugi, a High Court judge who had previously taught law at the University of Washington, and Okello, chief of staff in the office of the chief justice. Both had worked outside the judiciary until 2011, bringing fresh perspectives to the institution's longstanding challenges—and its prescriptions for change... Although the framework drew heavily on ideas that already had internal buy-in, the strategy team also engaged in extensive consultations with judges, magistrates, and staff to ensure their support.” [3]

Political commitment

The government supported the reform process by increasing its budget significantly. For the 2011-12 financial year, the judiciary's budget allocation from parliament nearly doubled (to KES7.5 billion) and the amount continued to increase for the next several years, reflecting the high priority the government placed on judicial reform.

In December 2011 it took the important step of joining the Open Government Partnership, emphasising its commitment to greater transparency. [4] It also introduced the integration of new technologies to speed up court processes, while its policy on assessing sitting judges indicated a strong political commitment to visible and practical judicial reform.

Public confidence

Public trust in the judiciary was very low, especially after the debacle of the 2007 presidential election, because of its perceived incompetence and corruption. However, a majority of the people in Kenya voted in favour of the new Constitution that gave rise to judicial reforms, and there was an increase in trust, especially in the Chief Justice. “‘People have never had as much faith in the chief justice as they do in Willy Mutunga,’ said John Githongo, a former anti-corruption official turned whistleblower. [5] ‘Before now there has never been this level of confidence in the judiciary.’”

Clarity of objectives

The objectives set for the reform process were further enhanced by identifying key result areas (KRAs) to ensure that the outcomes could be measured. The KRAs included:

• Access to justice.
• People-centredness and public engagement.
• Stakeholder engagement.
• Leadership, management and organisational structure.
• The growth of jurisprudence and judicial practice.
• Physical and technological infrastructure.
• Resourcing and value for money.

Strength of evidence

The presence of multiple studies done by various commissions and agencies facilitated the judicial reforms. “The strategy team had abundant material to draw on. The judiciary had already produced many internal reports proposing reforms, and civil society organizations had made recommendations. Most recently, a 2009-10 task force led by Justice William Ouko had gathered information from previous reports and recommended more than a hundred measures to address issues like hiring and case backlogs... Mutunga said that with so many existing plans for reform, the 2012–16 strategy his team developed, called the Judiciary Transformation Framework, ‘was not reinventing the wheel’. There were ‘a lot of good recommendations and proposals that were not implemented because there was no political will on the part of the leadership’.” [6]

Feasibility

The committee under the leadership of the chief justice evaluated the manpower in the existing Kenyan judiciary to get a clear picture of the staff shortfall and also to plan for recruitment. In 2011, Kenya had only 53 judges and 330 magistrates for a population of 41.1 million. However, there was no apparent tests of feasibility, especially in the area of technology.

Management

Strong mechanisms were put in place to implement and oversee the reform of the judiciary. “Mutunga had restructured the office by adding a chief of staff ... and hiring experienced staff to plan and coordinate new initiatives. He also created new administrative departments, notably the Directorate of Public Affairs and Communications and the Performance Management Directorate, and formed issue specific committees led by judges to further develop plans for carrying out specific components of the transformation framework, such as performance management.” [7]

The Judiciary Transformation Secretariat helped to coordinate initiatives, track progress, and shared best practice across the whole court system. “Registrars, who handled administrative issues for each level of the court system, led efforts to standardise and clearly communicate administrative processes.” [8]

Measurement

By 2015, the reforms had still failed to establish a centralised data gathering and disseminating mechanism to track a case effectively. Such a system would have been helpful for the effective measurement of the reforms undertaken by measuring the speed of each case as it progressed through the courts. However, the judiciary had tested several methods to streamline this process and the development of such a system was ongoing.

In 2010, the Eldoret magistrates' court in western Kenya piloted a case management system. It enabled judicial officers to track the status of a case in a court database and enabled litigants to check their cases' statuses and receive updates, such as hearing dates or reminders to pay outstanding fees, via text message.

In January 2013, Mutunga established a committee to develop a performance management system for the judiciary. The committee and the Performance Management Directorate developed a case-tracking tool. The Directorate released the final version, known as the Daily Court Returns Template, in October 2015. It collected much of the same data that an electronic case management system would have done, although it did not provide a mechanism for sharing files.

Alignment

The initiative received support from key figures in government, in particular the Chief Justice. It also received KES7.5 billion in government funding, as set out above. Financial assistance was also received from the World Bank (which contributed US$120 million) and other multilateral agencies, such as Germany’s international development program GIZ and the UN Development Programme. These ensured that the reforms did not stall due to lack of funds.

Bibliography

TRANSFORMING THE COURTS: JUDICIAL SECTOR REFORMS IN KENYA, 2011-2015, Maya Gainer, November 2015, Open Government Partnership and Innovations for Successful Societies, Princeton University, http://successfulsocieties.princeton.edu/

JUDICIARY TRANSFORMATION FRAMEWORK 2012-2016: Laying the foundations for the transformation of the Kenyan Judiciary, 2012, The Judiciary, Kenya

Judiciary Transformation Support Project, UN Development Programme

Trust in Kenya's top judge tested by election challenge, Richard Hough, 21 March 2013, Reuters