How Sh12 billion World Bank loan has helped many access justice
By Kwamchetsi Makokha
| August 21st 2021
A red, spray-painted evacuation order on March 1, 2021, sealed off the sole court building in Kericho County.
What had started as an innocuous hairline fracture running from the first floor down a pillar to the screed of Court No 1 grew into two visible cracks from roof to floor.
This week, a seven-day ultimatum for Chief Justice Martha Koome to resolve the lack of a court in Kericho expires. The Law Society of Kenya (LSK), Rift Valley Branch, gave the ultimatum after the Court Users Committee resolved to put in abeyance all the 1,400 cases in the county after the courthouse was condemned.
Operations had temporarily moved to a county building as well as Riverside Homes at Corner C on the Kericho-Kisii highway, after Acting Chief Justice Philomena Mwilu shut the law court in March and ordered it evacuated to “avert a potential disaster”. The alternative premises are neither adequate nor suitable for court needs as they lack custom requirements such as holding cells for suspects and registries for the secure storage of court documents. The crisis has brought the state of the Judiciary’s physical infrastructure into sharp relief.
A March investigation of the building’s integrity found not only cracks in the walls, but that the first floor was sagging, and the entire block was swaying on loose suspension joints between the walls and columns. Leeds Engineering Company, which carried out the investigation for the State Department for Public Works, found that modifications to the building in 2014 had weakened the four blocks at the Kericho Law Courts and undermined the integrity of the structure.
At the time of the investigation, the Government – which had hitherto been responsible for the construction of all courts – had not provided the architectural plans of the building, and so the investigators could not determine who designed the structure or when it was built in 1989. Kericho Law Court is a metaphor of the building crisis that has dogged Kenya’s Judiciary since independence.
It is a legacy of neglected, temporary colonial structures standing on land routinely seen as fair game by grabbers. Around the country, the frenetic construction of 61 urgent court projects has been under way in a struggle to rescue the Judiciary from physical decay and disrepair.
The ambition of the Judicial Service Act to establish a High Court in each county, and a magistrates’ court in every constituency has been progressing at a steady clip. So far, there are 39 High Courts – eight short of target – and nearly half (127) of the 290 magistrates’ courts required.
Court construction has been the beachhead of the Sh12 billion World Bank-financed Judicial Performance Improvement Project (JPIP), launched in December 2012. The loan – to be paid off in 40 years with a grace period of 10 years – has been the financial backbone of the Judiciary transformation to increase access to justice, speed up dispute resolution and improve efficiency, effectiveness and transparency in the institution.
The JPIP has financed the construction of 29 new courts in places where structures built by the colonial government more than 60 years ago are literally falling apart. The government’s annual development budget allocation to the Judiciary, a yoyo oscillating between Sh2 billion at the best of times and Sh50 million at the worst, is expected to build the other 33 courts. In fact, over the past seven years, the Sh2 billion World Bank funding has comprised over 90 per cent of the Judiciary’s development budget. “The (court construction) projects have faced major challenges due to underfunding,” says the State of the Judiciary and Administration of Justice Report, 2019/2020, which adds: “Two of the Government-funded projects have actually stalled.”
Kericho has not been on the priority list for at least 10 years, because its needs seemed extravagant in the face of the immediate need for courtrooms, ablution blocks and registries for safekeeping case files. The Judicial Service Commission (JSC) has reportedly approached the National Land Commission (NLC) with a request to recover Judiciary land that have been hived off and privatised, and the Kericho Law Court is in its list. The unavailability of land for court construction or expansion in Kikuyu, Ngong, Wanguru and Webuye compelled the Judiciary to deploy refurbished shipping containers to serve as courts. A container is similarly being used as an archive in Meru and Eldoret while in Bomet, it is used as a holding cell for children.
So far, JPIP has completed 14 new High Court buildings in Kitui, Chuka, Vihiga, Nyamira, Nanyuki, Isiolo, Kajiado, Siaya, Kapenguria, Maralal, Garissa and Makueni as well as Kakamega and Nakuru, as works are being finalised on courts in Kwale, Voi, Wajir, Ol Kalou, Kibra and Mukurweini and Mombasa. The old court in Mukurweini, which public health officials had condemned as unfit for habitation, was rescued after JPIP engaged the National Museums to preserve some parts of it and set aside some stones for use in the new building. Another eight magistrates’ courts have been constructed.
The court construction has not just expanded the footprint of the Judiciary across the country into hitherto marginal areas, but has also given a facelift to sour rural outposts.
Modern court buildings must now be more thoughtfully built to accommodate as many sections of the populations as possible.
Two pillars of a semi-elliptical arch adorn the entrance to the Sh347 million ultra-modern Nakuru Law Courts to announce the grandiosity of the four-storey building dwarfing the adjacent county police headquarters. It houses not only courts but also offices for justice sector actors like probation, police, prosecution and prisons, and has separate lounges for advocates, judges and magistrates. New court constructions now strive to meet constitutional standards for human rights and dignity such as separate cells for men, women, and children; ramps to allow mobility for persons with disability; children-friendly courts; and lactating rooms for staff and the public.
Fears that establishing a High Court in every county and a magistrate’s court in every constituency would proliferate judicial cathedrals in the desert have been assuaged by the demand – at least 100 new cases were filed in all the new stations.
Living long distances from urban settlements had resulted in entire communities falling through the cracks of the country’s justice system, and effectively entrenching a legal apartheid that upheld the rule of law in towns and a rough informal justice at the peripheries. Before the construction of the High Court in Garissa, a murder suspect in Mandera town on the Somalia border would have to travel 800km to Embu High Court to take plea.
Building is slow and tortuous work bringing together architects, quantity surveyors, engineers, and contractors who can create a veritable Tower of Babel. For a public building expected to withstand heavy human traffic, decisions can be painstakingly slow. Expenses keep rising with the passage of time as does the cost of materials, creating cracks for corruption. When JPIP began in December 2012, it was expected to wind down in five years but has been extended to close in October 2021.
Remarkably, although courts have taken longer to build than anticipated, during the seven-year lifetime of the project, more than 20 courts have been completed. The project has reduced the average distance to court from 194.5km to 140km, and is considered a success story. On the other hand, no single Government of Kenya-financed court construction has been started and completed.
On the World Bank website, JPIP – only the second such project in the world, and the lone one on the continent – is rated as a ‘high risk’ undertaking. The institutional weaknesses in the Judiciary caused significant delays in work, necessitating an extension of time. The next instalment of this article reveals how building courts started the Judiciary on a journey of change to embrace evidence-based decision making, performance management, and customer focus.
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