Why justice reform agenda should be more systematic than episodic

One way to describe the moment facing the Kenya Kwanza administration today is that of a student experiencing the first days of school; but already confronted by marks awarded for a future exam. Or, in easier African language, we think we know how the day will turn out early in the morning.

Not being a fan of the "first 100 days" bandwagon, I retain the unpopular stance that the work really begins in 2023. Of course, there will be much activity between now and Christmas. On the economy - which was Kenya Kwanza's campaign lynchpin - watch out for three telling signals.

First, the 2022/23 supplementary budget estimates. Has that Sh300 billion in cost savings been found, or has reality prevailed around a decision to focus on "good, not less" spending? After all, how much austerity can we afford during these increasingly recessionary economic times? We should not forget that the public spending shilling is still a key driver of economic activity.

Second, and related, "money in the pocket" pronouncements. Think about the much-awaited Sh50b Hustler Fund. Or the pending bills "liquidity instrument". The headline number here was Sh650b in June 2022. Now, will the instrument cover Sh50b (amounts owed by ministries, departments and agencies) or Sh340b (to include parastatal contractors and suppliers)? One assumes Sh160b in unremitted parastatal statutory deductions and pension arrears will be dealt with differently, but what happens to Sh150b owed by counties?

Third, some news from the IMF on its most recent mission, which is supposed to lead to a fourth instalment - about Sh29 billion - of that loan we took from them in April 2021. We tend to over-dramatise this, but we are the ones who signed up and committed to raise revenue (and prepare a medium-term revenue strategy while at it), cut spending (while protecting social spending), lift the veil on "tenderpreneurs" in public procurement, scrap fuel subsidies, publicise a proper forensic audit of Covid-19 spending, return Kenya Power to profit and fix parastatal governance in general.

There might be a fourth signal which brings it all together. The "Front Five" Kenya Kwanza manifesto (agriculture, MSMEs, housing, healthcare, digital/creative) premised itself on six target criteria. Bringing down the cost of living. Eradicating hunger. Creating jobs. Expanding the tax revenue base. Improving the foreign exchange balance. Inclusive growth. Even at this early stage, how does this checklist look with the world already signalling a more difficult 2023 than 2022?

I make reference to the manifesto here because - outside of executive fiat - much of what we have seen from Kenya Kwanza so far is speeches and declarations. Clearly, this will change when the administration's agenda is translated into policy, programmes and projects in real plans and budgets.

Economic recovery

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Meanwhile, the fourth Medium-Term Plan under Vision 2030 (MTP IV - 2023 to 2027) is largely complete. Treasury's (post-Covid) Economic Recovery Strategy/Stimulus Programme is still running. The 2022 Budget Review and Outlook Paper (for fiscal 2034/24 onwards) was issued in September while we were busy processing the Supreme Court's "hot air" and "wild goose chase" findings. It will be interesting to see how it all aligns. So that the forward agenda seamlessly flows with ministerial priorities, away from the excitable promises new ministers are already making.

But it isn't just the economy that we are watching. Recent media coverage has pointed us sharply towards the state of the criminal justice system in Kenya. From the past week alone, we have emerged unsure as to which agency to believe between the respective Directorates of Public Prosecutions and Criminal Investigations. Or rather who between DPP Noordin Haji and George Kinoti, our erstwhile DCI is the good or bad guy. This is just the tip of a larger iceberg where the little people disappear for unknown crimes, and the crimes disappear for the big people. Shouldn't we be spending as much time discussing crime and justice as we do the economy? Other than "if it bleeds, it leads" media headlines, what are all the recent stories telling us, again? Two sets of fears are apparent. First, the growing consensus is that Chapter Six is as dead as a dodo. We can talk about enforcement of Article 10 values and principles, and the strengths and weaknesses of the Leadership and Integrity Act until the cows come home.

Or we might reflect on this quote by Frederick Bastiat, the 19th century French thinker, "when plunder becomes a way of life for a group of men in a society, over the course of time they create for themselves a legal system that authorizes it and a moral code that glorifies it.". Recall former Chief Justice Willy Mutunga's 2016 remarks about Kenya as a "bandit economy".

The second fear is more difficult and frightening to describe, so we shall go with the term "extra-judicial killings". This phrase captures images of killer police squads, units or teams, arbitrary and summary executions, shoot-to-kill orders and disappeared young men. It represents the absence of a criminal justice system, not a failed or failing one. It's the police vs the people.

The typical response is to call for any one of the "r's" - from revenge to reform. Yet mindsets are hard to change. The phrase "justice is incidental to law and order" attributed to US spymaster J Edgar Hoover will find favour in more Kenyan places and spaces than you think. Indeed, Martin Luther King Jr's very different perspective that "law and order exist for the purpose of establishing justice and when they fail in this purpose, they become the dangerously structured dams that block the flow of social progress" may require a very strong dose of civic medication, sorry, education.

Speaking of mindsets, we have not heard Kenya Kwanza's leadership use the words "corruption" or "integrity" in any speeches and declarations since inauguration. They have been more vocal and aggressive on the second fear by clearly seeking to cleanse the DCI, which has brought us to an unseemly war of words with Azimio. Kenya Kwanza had several things to say on justice, security and human rights in their manifesto. There were commitments to end extra-judicial executions by security services; end police abuse, especially among urban youth and create an ombudsman to monitor human rights violations.

There were commitments to ratify and domesticate the international convention for protection of all persons from enforced disappearances; institutionalise rights-based approaches to counter-terrorism; implement the Legal Aid and Victim of Crimes laws and alternative justice systems policy and enhance rehabilitation and reintegration aspects of the prison system.

Then they promised us two "truth and nothing but the truth" vehicles. First, within 30 days, a quasi-judicial public inquiry to establish the extent of cronyism and state capture in the nation and make recommendations. Second, a special tribunal to address gross human rights violations and enforced disappearances (including actions taken by police and military actors in Northern Kenya).

And now we have the Azimio coalition calling for its own independent commission of inquiry into extra-judicial and other unexplained killings and executions in Kenya. Lest we forgot, we have the TJRC report on shelves somewhere, even before we get to older reports from Akiwumi to Alston.

Where could this crime and justice story go? On extra-judicial killings, Kenya Kwanza would appear to have stepped back from its manifesto and gone straight into operationalising changes through executive decisions (isn't the DCI independent?). On the other hand, Azimio now seeks an independent inquiry. Without a middle ground, this subject will continue to generate more heat than light, which means any fix is likely to be episodic, transient and administration-specific.

The smarter idea might be to learn from the past while seeing the big picture. Criminal justice reform, and justice reform broadly, is best delivered as a systematic process rather than a series of discontinuous tasks. This was one drawback with the multi-agency task forces created by the previous administration to deal with issues such as terrorism, money laundering and graft. The one agency that cuts across the justice sector, the National Council on the Administration of Justice is neither attuned nor active enough to drive reform.

Also, most justice, security and human rights institutions are independent under the Constitution, even though their work flows across the same chain of justice. Twenty years ago, a sector-wide reform effort titled the Governance, Justice, Law and Order reform programme successfully brought these institutions into a single "policy to action" space to deal with governance, security, law and order, policing, penal, justice and human rights reform. Might there now be an opportunity to systematically do this again for a chain of justice cluster that cuts across government? This could be the first step in a long journey towards "justice as fairness".