“Justice delayed is justice denied” is an oft quoted phrase attributed originally to a Mr William E. Gladstone, Prime Minister of Britain at various times between 1868 and 1894, but no less true for becoming a cliché. Justices and magistrates delayed, delaying, or simply not turning up at all deny justice to Kenyans over a century after Gladstone made that famous remark.
Talk to just about any Kenyan lawyer and he or she will bemoan the continuous and lengthy delays in the Kenyan legal processes. Some judges, a Nairobi-based lawyer told the Kenya Forum, have over 100 rulings pending going back over five years. The same lawyer said that he had been promised a judgment in a particular case in 2008 but over four years later he was still waiting.
The massive backlog in cases, however, begins way before a judge starts to put pen to paper, or often doesn’t, to produce a ruling. Day in, day out in Kenya’s courts, judges are late or even fail to turn up at all.
“It is not uncommon”, a lawyer told the Forum, “for court proceeding due to start at 9am to be delayed for two hours or more as everyone waits for the judge to appear”. This not only delays proceedings it results in a massive waste of advocates’ time as they sit in the corridors of the courts unable to get on with their work.
INDUSTRIAL COURT NOT WORKING?
The Industrial Court came in for particularly criticism from lawyers who spoke to the Forum. “The court proceedings are due to start at 10am”, said one, “the judge arrives at 12 Noon but still expects to break for lunch”. Little wonder then that only this week the Labour Permanent Secretary Beatrice Kituyi announced the sacking of four judges from the Industrial Court, although the four are challenging their sacking through the High Court… could take a while.
“At the core of the problem”, said a lawyer, “is the fact that many judges simply do not respect the legal process and do not respect lawyers’ time, or that of court officials, or witnesses.”
“You can complain”, said the lawyer, “but nothing will happen”.
“I even used the service where you can email Chief Justice Willy Mutunga”, continued the lawyer, “but all I got was an ‘auto reply’ and after that I heard nothing.”
The vetting of judges has put them on notice that lax behaviour will not be accepted but lawyers say that as yet this has resulted in little or no improvement in the movement of cases.
To make matters worse, as just about every lawyer will attest, files are regularly lost and witnesses are not produced, often on purpose as part of delaying tactics by one side or another.
Chief Justice Willy Mutunga inherited a largely decrepit legal system and to change it will take time. Kenyan lawyers and indeed many ordinary Kenyans appreciate what he is trying to do.
Mutunga has recently announced several initiatives to help improve efficiency in Kenya’s legal system.
The introduction of “telejustice” is one such initiative, whereby information technology will be used so that judicial officers and litigants will be able to interact without being in court. (Will that help with the judges who don’t turn up to court anyway, asks the Forum?) The provision of audio and video equipment will however be very expensive.
The Judicial Training Institute is also to “offer education and training to staff involved in the administration of justice and train officers on better methods of service delivery and the use of computers and information technology”. Fair enough, says the Kenya Forum, but it still doesn’t help much if the judge goes missing or fails to get around to writing a judgment at the end of the trial.
Willy Mutunga’s latest initiative is to call for the provision of a helicopter ‘to improve service delivery’ and reach ‘far flung courts’. Fine, get the chopper, but it’s going to cost.
SOME SIMPLE ADVICE FOR WILLY MUTUNGA
The Kenya Forum, respectfully of course, would like to suggest a couple or three very simple and cost-effective measures the CJ could take that would dramatically improve the speed of justice, and thereby Justice itself, in Kenya.
“Many judges simply do not respect the legal process and do not respect lawyers’ time”
First CJ, send a short letter to all judges and magistrates telling them that they are expected to be in court ready to hear proceedings at the allotted time and that if they are not… it might not go too well for them when it comes to the next round of vetting judges.
Second, take a couple or three days away from your usual work CJ and call the judges personally to reinforce the message.
Finally CJ, the use of information technology to improve efficiency in Kenya’s legal system is to be applauded but do take a look at your email in-tray and sort out your ‘auto reply’.