This week we have seen the acute breakdown of the Judiciary e-filing portal that fundamentally affected access to justice in terms of the filing of cases. As the Judiciary strives to make its system more reliable and dependable to ensure it does not jeopardise access to justice, it must stand up and firm against a worrying trend by judicial officers which is two-fold; the delayed delivery of rulings and judgements after listing them as such in the Judiciary cause lists and the delivery by promises of “rulings and judgements shall be uploaded on the Court Tracking System (CTS)”.
The Judiciary must constantly remind itself that every institution can easily slide into the worst form of loss of confidence of the general public and the consumers of its services even after a substantial commendable reform if it decides to entrench an informality system that operates within the main formal system. This is what many judicial officers in the magistracy and even the High Court have resorted to.
A ruling or judgment will be set down for delivery today and later deferred even five or six times, the only mild reason you will get as a litigant or an advocate is that the said decision is not ready. Nothing more. As a legal practitioner, there are times you follow the outcome of a simple ruling of let say a ruling on extension of time to file certain court pleadings, an application for stay pending appeal or way less complex applications for a longer period of time than the actual case itself. This is where we are. The late justice David Majanja would determine most of these in barely five minutes. If the Judiciary is genuinely interested in clearing the backlog, it should reflect on just how many judicial officers, especially at magistracy, are wired in the delay of matters.
There was a judge recently at Kiambu Law Courts who would give a simple application for an advocate to cease acting, a date four months ahead, an application rarely contested and is straightforward in terms of its reasons. The Judiciary should introspect on its commitment to speed access to justice rather than just cry foul all through about the structural challenges it faces, most of which are genuine concerns.
The way judicial officers would love to see ‘on the feet, fit advocates’, as advocates and litigants who are users of the courts, we are sad to see judicial weaklings who cannot deal with straightforward issues and spend the least of time. Laziness is a menace that must be dealt with by the Judicial Service Commission, largely on its own motion as per the constitutional mandate.
On the second issue, the judicial officers are prone to simply stating that at the end of the day, all rulings and judgments coming up will be uploaded. This is how all parties who appear in courts ‘get their decisions delivered’ and they innocently vacate court with that hope that more often than not turns out into weeks and sometimes months without the decisions ever getting to be uploaded. The court owes the parties and all stakeholders that appear before it a duty to be factual and honest.
Judicial officers who promise decisions without uploading them months and weeks after delivery violate all known tenets and code of ethics that govern the sanctified space of being on the bench. This judicial laziness and dishonesty need to end. I recently made a joke on a public forum that the situation is thus worse to the extent that there are ‘rulings and judgments’ that have stayed till they are approaching their ‘1st or 2nd birthdays and anniversaries’ in the ‘not yet ready or we shall upload zone’ in the lie-sphere somewhere up here. I have said enough of this menace.
Turning to the danger that this has on our legal system, sometimes even where there is no monkey business, there is a real or perceived window for corruption during this period to produce ‘negotiated rulings and judgments’. The Judiciary goes into disrepute and litigants are justified to impute all manner of motives of why there is a delay. Thankfully, a few judicial officers apologise for late delivery of some decisions, we have seen it both at the High Court and the Court of Appeal. In the Judiciary we buried pre-2010, the menace was missing files, which acutely diminished post 2010, but we have a new form of delay that has a real potential of breeding corruption, bribery and subject justice to auction. There is an added reason why the delay is fatal in appeal process, if a decision is recorded to have been delivered today but only uploaded weeks or months later, it scatters and interferes with the timelines for a potential appeal thereby slaughtering the non-derogable right to fair hearing.
The struggle to extend timelines for filing appeals is unnecessary if the Judiciary can just be diligent and honest in its operations regarding the delivery and uploading of its decisions on the CTS.
It is even more baffling where the court does not verbally read, even in brief, its final orders. You never get to know the outcome until the end of the ‘uploading period’. This is when you meet your fears for the first time. I say these things because of all our limping arms, the Judiciary is still a fortress for all.
