From: odhiambo okecth
Date: Tue, Oct 13, 2009 at 2:52 AM
Ambrose Redmoon once said that courage is not the absence of fear, but rather the judgment that something else is more important than fear. We have taken the step to examine what ails the judiciary because our pleas to many practicing advocates to take the bull by the horn is met with fear and trepidation. Many advocates would not wish to raise their heads above the water. They want to exist like submarines so that they are not earmarked. It is not that we do not fear the judges and magistrates. We fear for the judiciary more. Someone must tell the Emperor that he is naked. The reputation of the judiciary in Kenya is cascading fast towards that of the police. The Kenyan population lost confidence in the police long time ago. That is why they take the law into their hands. Equally few believe that they can get justice before the courts of law. Loss of confidence in the judiciary is encouraging extra judicial dispute settlement mechanisms such as Mungiki courts. So what ails the judiciary?
Judicial systems within the Commonwealth tend to be very conservative in nature. They are based on English law which itself is based on common law that grew from the English feudal systems. The system was defined through the master and servant relationships. This means that the law was skewed against the servant. Only the law of equity attempted to stem this imbalance. Kenya which as a protectorate and colony adopted the English laws mainly via India tends to be even more conservative. When conservatism is blended with corruption and assumed infallibility it makes lethal concoction of justice. Let us explain. On average judges and magistrates (the bench) in Kenya thrive by harassing advocates (the bar). Either because they are lazy, incompetent or both, some judges and magistrates deride advocates who try to complicate matters by citing precedents and pinning the bench. They hate burning the midnight oil trying to decipher the principles espoused in the decided cases. Any student of law knows that the law grows through precedents. Advocates rue their profession when they encounter some vengeful members of the bench. These are judges and magistrates who hate assertive advocates. Corrupt members of the bench have been known to turn accused persons or litigants against their advocates by demanding some consideration in exchange of favourable judgments. They belittle the role of the advocates. Where benefit has accrued cases are fast tracked. Judgments are made in rehearsed pantomime and woe upon cases following the normal procedure. These are postponed for eternity. Cases of corrupt judges and magistrates are not restricted to Kenya or to this age. Many Centuries ago the British Poet Alexander Pope observed – “The hungry judges soon the sentence sign, and wretches hang that jurymen may dine.”
We hasten to observe that great judges are distinguished not by the positions they hold or the awesome power they wield over advocates but by the enduring judgments they make. These are incorruptible men and women who are committed to dispense the law and who are thorough, painstaking, learned and clear. They have a thorough grasp of the existing rules and principles. They give masterly judgments. Lord Denning, one of Britain’s longest serving and most respected appeal judges was immortalized by his liberal judgments that strengthened the law of equity. When he died he was eulogized as a legal innovator who did not feel restricted by literal interpretations of statutes. It was said “His judgments were a model of lucidity. He was prepared to use the law for its true purpose — in the interests of fairness and justice.” His compatriot Judge Baron Atkins equally distinguished himself as one who relied on testing the law against the demands of common sense and the interests of the ordinary working man. He introduced the principle that ties cause and effect in the landmark case of Donoghue v. Stevenson concerning the alleged adverse effects from an alleged snail in a bottle of ginger beer served in a cafe in Paisley. The case established the modern law of negligence in the UK and, indirectly, in most of the rest of the common law world, with the major exception of the US.
Kenya has also its respected and learned judges who have made landmark judgments. The late Justice Madan was a much respected judge who made bold decisions. Others like Judge Cotran defined the place of customary law in our legal system. Recently Judge Phillip Waki demonstrated that we have men and women who can be relied upon to define the next course of Kenya’s history. Although his was not a legal judgment, he gave legal guidance in a Tsunamic issue threatening to tear the nation asunder. Like him there are many more wise, learned and dedicated judges and magistrates to whom we give our tribute. . But our regret is that they do not seem to have adequate opportunity to influence the course of timely justice for all. Instead they remain buried within the rot that depicts the judiciary in Kenya as not only oppressive to the vulnerable and marginalized but also as the greatest agent of poverty creation and promoter of inequality in Kenya.
For all intents and purposes the judiciary has resisted pleas to reform. If it responds at all it stirs into incestuous measures to blindfold the ‘ignorant’ public. It fails to recognize that in this modern day and time, the citizens know and understand the law. When a case is decided wrongly, they know but are helpless to do anything about it. It is not only the Magistrates and the Judges who are read in law. Many in the public are well conversed in law and can detect cases where there is out right judicial manipulation. The citizens Jury has now decided. Like any other arm of the government, the judiciary must undergo radical transformation.
The Government has embraced the concept of performance contracting for her employees as a means by which output can be measured by the people. It has also gone a step and decided that such performances must be evaluated by the public, the people who consume such services. Performance contracts go hand in hand with Rapid Results Management Concept where deliberate effort is put in place within a set time frame, preferably 100 days, to achieve results. Rapid Results Initiative are hence used to establish results based culture in the delivery of service while enhancing the management and implementation skills required for producing results. The citizens are prescribing such measures to overcome the cancer of pending cases where decisions have been made after 20 to 30 years.
It is gratifying to note that several sections of the Government have signed Performance Contracts to enable the public, who are their principal employers, to vet their output. This concept has been resisted by the Judiciary. We want to put a case that should compel the public to insist that members of the judiciary are subjected to a rigid regime that ensures Rapid Results that will ensure that the public regains confidence in the dispensation of Justice in Kenya. Several cases have been pending at our registries all across the country with litigants complaining of either delays in judgment or misapplication of justice. Very simple cases that should take only a day to decide are delayed for as long as 10 years. Yet, the public cannot query what actually goes on in the courts. The citizens cannot understand the cause of such delays especially where Magistrates and Judges come to the courts late, listen to a few cases as they drone in monotones that are incoherent to the litigants, and then promptly disappear. They act like conveyor belts giving new dates for all the files that are placed in front of them. Cases of people traveling from far distances get shallow attention as the Magistrate or Judge promptly give fresh dates for hearing, without taking into account that litigants have traveled from far. Litigants are punished instead of receiving justice. We also have cases of outright incompetence from the men and women sitting in the Bench. We feel that this has been occasioned by the secretive ways in which they are appointed based not on their professional competence but on their friendship to the appointing authorities.
A time has come for the judiciary to take judicial notice that the citizens will, if nothing is done to their satisfaction, rise against the system and ensure that impunity, corruption and perfidy are eliminated for ever in our courts.
Mr. Kinuthia Wamwangi is a Local Government Consultant, while Odhiambo T Oketch has extensive experience in Performance Contracting and rapid Results Initiatives and is the Chairman- Stakeholders Evaluation Team at the City Council of Nairobi.
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Subject: REFORMS: WHAT AILS THE JUDICIARY?
To: jaluo