In October 2009, the International Bar Association’s Human Rights Institute (IBAHRI) and the International Legal Assistance Consortium (ILAC) undertook a needs-assessment mission to Kenya in order to examine the current functioning of the judicial system and to identify and prioritise ways in which support might be provided to the ongoing process of justice sector reform. The delegation consulted widely, holding a total of 35 meetings with government officials, members of the judiciary, lawyers and lawyers’ organisations, legal academics, international and regional donor organisations and representatives of civil society. The IBAHRI and ILAC are grateful to all those agencies, organisations and individuals that contributed to the information presented in this report. The discussions that were held were both frank and informative.
The dispute over the results of the Kenyan presidential election in December 2007 led to unprecedented violence, ethnic animosity and mass displacement in what was previously considered a peaceful and stable country. Between 27 December 2007 and 29 February 2008, 1,133 men, women and children lost their lives, 3,561 people sustained serious injury and over 300,000 individuals were displaced from their homes. Although the causes of the crisis were diverse, the tendency to violence among members of the public was exacerbated by a perception that government institutions and officials, including the judiciary, were not independent of the presidency and lacked integrity.
In the aftermath of the violence, the attention of Kenyans, Kenya’s partners in Africa and the wider international community turned to instituting a programme of fundamental reforms to deliver sustainable peace, stability and justice through rule of law and respect for human rights. This was the stated goal of the Kenyan National Dialogue and Reconciliation (KNDR) process that was initiated, through the mediation of former UN Secretary General Kofi Annan and the Panel of Eminent African Personalities, in January 2008. By Agenda Item Four of the National Dialogue, the coalition government committed itself to addressing long-term issues that may have constituted underlying causes of the prevailing social tensions, instability and cycle of violence, including the need for constitutional, legal and institutional reform.
In the opinion of the IBAHRI and ILAC, if recurrent conflict in Kenya is to be avoided, there is a clear, present and incontrovertible need for judicial reform. Public confidence in the judicial systemhas virtually collapsed. Partiality and a lack of independence in the judiciary, judicial corruption and unethical behaviour, inefficiency and delays in court processes, a lack of awareness of court procedures and operations, and the financial cost associated with accessing the court system have, amongst other factors, all served to perpetuate a widely held belief among ordinary Kenyans that formal justice is available to only a wealthy and influential few.
Some progress is being made. Both the Government of Kenya and the Kenyan judiciary have acknowledged the need to restore public confidence in the judicial system and have taken steps in this direction. Certain policy initiatives on the reform of the judiciary have been included in the government’s Medium Term Plan (2008-2012) of Vision 2030. The government has also appointed a multi-disciplinary Task Force on Judicial Reforms that has identified a broad range of reforms that need to be implemented within the judiciary.6 The judiciary has itself published a 2009-2012 Strategic Plan which stipulates strategic objectives and activities aimed at addressing a variety of internal challenges.
Under the leadership of Chief Justice Gicheru, the Kenyan judiciary has also instituted various administrative and technical reforms with the aim of improving the institutional capacity and efficiency of the judiciary. For example, in September 2008 the judiciary established a Judicial Training Institute (JTI) with a mandate to provide induction courses and continuing professional development for all judicial officers and other staff. Annual open days have been organised with the aim of enabling the public to interact with judiciary staff and learn about court processes, whilst Court Users Committees have been established to enable all actors in the criminal justice system to meet and resolve operational difficulties. A Principal Judge has recently been appointed in order to improve judicial administration in the High Court and a recruitment campaign is underway to increase the number of magistrates. A Practice Direction has been issued on the expeditious disposal of cases and a number of specific initiatives aimed at automating judicial operations are currently at the early stages of implementation.
These and other related developments within the judiciary are welcomed by the IBAHRI and ILAC. They are necessary to improve the overall quality and efficiency of the Kenyan judicial system and are therefore deserving of international support and assistance directed to ensuring effective implementation. Nevertheless, the limitations of such measures must also be acknowledged. In the opinion of the IBAHRI and ILAC, such isolated reforms will not alone be fundamental enough to transform the Kenyan judiciary into a strong, credible and independent institution. Problems of corruption, political influence and patronage in the appointment of judges and in the constitution of the Judicial Service Commission, as well as the general lack of independence of the judiciary from the executive, cannot be addressed administratively but require a radical transformation of the relationship between the judiciary and the executive. If public trust in Kenya’s judicial system is to be fully restored, administrative and technical reforms must be accompanied by institutional reform directed towards establishing the Kenyan judiciary as an independent institution for the fair administration of justice. Such change will require, ultimately, the enactment of a new Constitution.
The IBAHRI and ILAC note that the window for reform is closing, and closing fast. With the next electoral cycle scheduled for 2012, succession politics and electoral political conflicts will soon arise. There is a danger that attention will then move away from the reform agenda. The IBAHRI and ILAC therefore urge the coalition government to expedite its judicial reform programme. The parties are encouraged to consult regularly, to work together to develop consensus on important issues and to demonstrate genuine progress on the implementation of institutional and structural reforms within the justice sector. Only through an unambiguous display of political will to strengthen the rule of law may Kenya satisfy both its international obligations and the popular aspirations and demands of its people.