Files containing criminal proceedings piled up at a courts registry department. [PHOTOS: FILE/ STANDARD] |
By MOSES MICHIRA
KENYA: Files containing years of criminal proceedings are strewn on broken chairs, many more spilled over to the earthen floor.
They have been infested by termites, the invasive insects known to bring down entire buildings.
The same proceedings can form the basis for sentencing a suspect, possibly to death.
But in Machakos Law Courts, snakes and hedgehogs were even found crawling under the files in the dilapidated registry.
Until recently, the Judiciary was carrying a case backlog of up to 20 years, with acute understaffing, a dysfunctional administrative structure and a lack of even basic communication equipment.
Judges, too, would have to make time for the procurement for the Judiciary and still make sure the utility bills had been paid.
Unfavourable grounds
They were also responsible for hiring all judiciary staff through subcommittees.
All the conditions were right for corruption and nepotism, in a deterioration that saw the ills grow so deep as to block any meaningful access to justice.
Chief Justice Willy Mutunga said in a brief last year the Judiciary had been set up for failure.
“We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic.
We found a Judiciary that was designed to fail,” Dr Mutunga told Parliament.
He had an even bigger concern regarding the Judiciary’s institutional structure, where he said the Office of the Chief Justice operated as a ‘judicial monarch’ supported by the Registrar of the High Court.
There were only 42 judges including the Chief Justice, serving a population of over 40 million, working out to a judge for every one million people. Now there are 91 judges, including those working in the Industrial and Environment courts. But India has 14 judges to every million while Germany’s ratio is 249.
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The problem extended to more than just judicial officers. Anthony Kamaru, an advocate working at the International Commission of Jurists, says litigants often had to pay judicial officers to have their cases scheduled, the proceedings typed and even offer security for their files at the registry.
Courts diary
“Money was to be paid at every step; and the bribing still happens, but on a smaller scale today,” he said. If you wanted your case heard, you had to pay the person manning the court’s diary to get a date, Kamaru explains. “It was very common to find missing files because clerks had been bribed to hide all or even have them destroyed.”
Amid all the chaos, thousands of suspects were denied justice in a system slowed almost to a standstill. For those wrongly suspected or charged, it would take years to be set free, when the courts finally established innocence. No one cared if suspects never got to court.
Then there was the 2007 General Election and its bloody aftermath. An enquiry set up soon after the killings ended found out the state of the Judiciary, almost non-existent, was a major cause of the violence that left close to 1,350 people dead. The violence prompted radical changes expected to instill confidence in the Judiciary.
A task force chaired by retired Justice William Ouko collected views from experts and wananchi on what changes were needed to form the basis of the major reforms. A free-standing Judicial Service Commission was proposed consisting of long-serving judges, lawyers and community representatives, whose role would be mostly advisory on matters judicial. The JSC would also champion the welfare of the judicial officials. Within the judiciary itself, judges and magistrates would have clear roles of hearing cases, while the administrative work would be handled by a different office, the Chief Registrar of the Judiciary.
The last two years have seen this new system implemented in part, but now being tested for the precise role — and limits — of each of the three new functions.
With sides now formed, and amid major confrontations, at stake is the future shape and efficiency of a Judiciary that, by all counts, has yet to reach the position of delivering justice for the nation’s citizens.