It’s unfair to judge the Judiciary this harshly

There is a misconception among many political pundits who equate dispensation of justice in courts to raw politicking. The two are as different as chalk and cheese. Unlike politicians who pontificate at every forum, including and not limited to funerals, churches, barazas and their debate chambers whenever they have the opportunity, judges and magistrates speak through their pens in their judgments and rulings. Judicial officers are guided by a judicial code of conduct that directs them on how to present themselves and does not allow them to overreach certain parameters that may compromise their positions as neutral arbiters in resolution of conflicts.

Judges do not have any other forum through which they can defend their work and or ask for public support whenever they are vilified. Unlike politicians who have the opportunity to tell all manner of tales about their work and how it affects members of the public, the courts are silent dispensers of justice that may not make it to the mainstream news channels however colourful. It is, therefore, unfair to compare the performance of the courts and politicians in regard to their outputs and or lack of it, and how it affects service delivery for members of the public. While politicians will shout their achievements, judges will let their judgments and rulings speak for them.

In the State of the Judiciary and the Administration of Justice Annual Report, 2018/2019 (SOJAR) that was released a few weeks ago by Chief Justice David Maraga in the presence of President Uhuru Kenyatta, it was revealed that at June 2019, a total 186,716 cases of over five years had been cleared in all courts, translating to an achievement level of 110 per cent. In total, during the year, 469,359 cases were resolved in all courts. This comprised 300,728 criminal cases and 168,716 civil cases. Another 2,521 cases were resolved by tribunals, impacting on reduction of cases backlog.

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The SOJAR report further reveals a wonderful performance by the courts that is ignored by political analysts, who instead choose to roundly vilify the Judiciary while at the same time exonerating other actors in the justice sector that must compliment the work of the courts to complete the cycle. Further, judges are not allowed to discuss the merit of the cases or any other details at any other forum apart from their courts and chambers when delivering judgments, rulings or giving directions. It is, therefore, wrong for political commentators to lay equal blame for leadership misapprehension in the country on the courts and the politicians in equal measure.

The courts work in tandem with other justice sector players to achieve their goal, which is hearing and determination of cases brought before them. This can only be achieved through collaboration from the initiating stage of a case to its final conclusion. For instance, in a criminal case, the police and or, EACC must conduct proper investigations and make sure their cases are water tight before charging suspects.

The DPP must also investigate and put the case in order before preferring charges. That way, courts will apply themselves on cases before them as per the law. Without sufficient evidence, courts will not proceed with cases and deliver judgments, if they do, it will be a travesty of justice. Courts of law are the custodians of justice, and therefore the law of evidence must always be upheld. Political pundits must understand how courts work before they pass their own judgment without having facts of what happens in a typical case in a court system like ours.

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Case backlog, which the Judiciary has managed to bring down considerably in the last reporting year, as evidenced in the SOJAR, is, therefore a result of all the players in the justice system, and not the Judiciary alone. Take the case of the DPP asking for more time to find witnesses or the DCI seeking more time to collect and firm up evidence when the court is ready to proceed; do you blame it on the judge when that case delays in the system?

That the Judiciary is only a part of the chain cannot be gainsaid. If the other players fail in their part, blame should be apportioned appropriately, and not lumped on the Judiciary. The courts do not arrest, investigate or prosecute. Political analysts must know judges and magistrates hear and determine each case on its own merit. Judges will not make an appearance on a radio or TV show to explain, the way politicians do when they are questioned about their performance. Hence, political commentators must get facts from the courts to be informed in their opinions.  

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One political pundit in his column in a daily newspaper equated the Judiciary to a cannibal that is shrouded in mystery and traditions that protect its own and hides under the cloak of independence. Such adjectives should not be levelled against an institution that is the custodian of justice. They only serve to erode the confidence of the public in the institution that serves as a neutral arbiter to our disputes whenever they arise. Judicial independence is a constitutional provision. In article 160 (1) it states: “In exercise of judicial authority, the Judiciary, as constituted by Article 161, shall be subject only to this Constitution and the law and shall not be subject to the control or direction of any other person or authority”. Therefore, it is malicious for a political analyst to use space donated to him by media to disparage the Judiciary.

The Judiciary may have its own shortcomings, but just like any government agency, its work ethic is dependent on the general social, political and economic environment existing in the country. The same political pundit accuses the Judiciary of lagging behind in its digital pursuits. He opines that the Judiciary has chosen to remain analogue as a way to frustrate the quick motion of cases and support corruption. Nothing can be further from the truth. The CJ, in his appeal to the President, asked for more funding to enable such programmes to be effected. The economic situation at the moment is not favourable to many such programmes. Just like Uhuru said, it is not only the Judiciary that is affected by lack of finances, and upon availability of resources, the digital programmes will be implemented.

This is not to say the Judiciary is in limbo regarding its digitisation efforts. Implementation of the Judiciary operation support system comprising various components of digitisation such as electronic filing and case tracking is underway. The Judiciary has also developed an ICT policy to guide its ICT activities, as well as a Judiciary ICT Master Plan to guide implementation of ICT projects.

Political commentators should take time to understand the courts before penning misleading commentaries that only serve to erode the confidence of the public in the courts.

The writer is a Public Communication Officer at the Judiciary.

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JudiciaryChief Justice David Maraga