Hold judicial officers to account over distorted proceedings

In the legal world, you probably have heard the phrase, “a court of law is a court of record.” Well, some think that it carries the literal meaning, which is partly true but it goes further than just that. It means that a court is required to keep an official record of its proceedings and decisions, which can be relied upon as an authoritative account of what transpired before it. Simply put, what happens in court is formally recorded, and the record serves as an official account of the proceedings.

This has several implications in law. First, the court maintains records of evidence, pleadings, submissions, rulings, orders and judgments, as required by law. Secondly, the court’s official record is authoritative evidence of what transpired before it, subject to applicable procedures for correcting or challenging the record. Thirdly, where a decision is challenged on appeal, the record of the proceedings enables the appellate court to examine what happened before the lower court and determine whether the law was correctly applied. Fourthly, the official record helps establish what the court decided, the reasons for its decision and the orders it issued and definitely what the parties submitted.

There is however a worrying and now more brazen conduct of judicial officers especially at the magistracy to either record what did not transpire before them or fail to submit the actual record of proceedings. Alternatively, the proceedings often supplied in case of appeal are either too brief, too omitting or just lazily done with spelling errors beyond recognition of any coherent flow.

In some instances, especially at hearings, the flow and sequence of examination in chief and cross-examination are distorted and even more perturbing is that some judicial officers do not capture the most definitive parts of a trial. The situation becomes worse if you peruse the handwritten notes. We can understand that judicial officers have different unique handwritings, but some of them are simply uninterested in ensuring the court is one of record, they simply scribble what no one can ever see.

Even the clerks who type such proceedings barely see what is handwritten hence the chaotically typed proceedings. In this digital era where many court proceedings are done virtually, there is absolutely no reason to fail to transcribe proceedings correctly for purposes of the record.

Recently, upon application for a particular set of audio recordings of a hearing to be supplied for purposes of appeal, I was met with “apologies, upon review of the Teams account of the said judicial officer, we are unable to find the recordings as the same were not submitted.” One wonders why a judicial officer would alter the record in the handwritten notes and fail to submit the recorded proceedings of a hearing for reference to allay any doubts.

The Judiciary Information, Communication and Technology segment that is geared towards the digital transformation of the Judiciary should look more seriously into these issues especially for purposes of appeal and emulate the Supreme Court neatness and thoroughness in terms of proceedings. In fact, they immediately upload the actual typed proceedings of every court attendance on the Court Tracking System.

The same cannot be said of most magistrate and High Court stations, especially the record of the actual hearing of matters. As the judiciary plans to fully ensure there is actual recording of both physical and virtual hearing of cases at both the subordinate court as is with the superior courts, it must ensure that judicial officers do not misconduct themselves by altering the records to justify a particular outcome. Whereas we have an elaborate appellate system that reduces the risk of wrong decisions in facts and law, this appellate train depends squarely on an accurate state of the records.

If a court can be allowed to either lazily prepare records, prepare a record with the tardiness that border sabotage or omit whatever they feel does not support their desired outcome, then the Judicial Service Commission must deal with such cases firmly and decisively.

There is now a common saying among the advocates who deal with appeals that some decisions seem very sound when you read them until you open the record of what transpired at the proceedings which appears to be the actual ‘ground’ where things go wrong. This is particularly concerning because most of the virtual links for court cases in this era on the Teams Platform are often recorded and it notifies all logged in that the meeting is actually being recorded.

Where do judicial officers take those records if they cannot reproduce and guarantee neat, organised and actual proceedings as it takes place. To be sure, this piece is not contending for word to word record of proceedings because that would be too onerous to seek from our courts that already are suffocating in backlog and a myriad of funding constraints.

The least litigants, advocates and all consumers of justice deserve is availability of proceedings in time, guarantee of accuracy of the said proceedings, order and neatness in the proceedings and audio recordings supplied upon request in case of a dispute in the correctness of what was captured in the typed proceedings. This is what a transparent judiciary in the digital era does. Otherwise, with the increased accountability challenges of magistrates and judges in Kenya, we may end up with near fabrications in typed proceedings as the ‘official record.’ Because all the arms of the government are limping and it is the judiciary still on its feet, we have to wail on these issues. The time for reform is now and here!