by Isaac Nyangeri, Kenya, September 1997
THEME = JUSTICE
Prior to colonisation, each different tribal community had elders who ensured that the tribal customs, traditions and laws were followed. The elders also settled tribal disputes and, whenever necessary, decided on what punishment to inflict.
When the British colonialists arrived on the scene, they formed, all over the Protectorate, what were known as African Courts. This was in the early 1920s. These African Courts were made up of elders, selected by the chiefs and approved by the British District Commissioners. The selection was made along tribal lines.
In 1972, the African Courts were phased out, and District Courts were installed. Initially, these District Courts were presided over by Lay Magistrates and later taken over by Resident Magistrates. (Lay Magistrates are citizens appointed to hear cases. They have no special training in law and are not trained as advocates. Resident Magistrates are trained and qualified as advocates from recognised universities. They hear cases in their respective courts [at district level] during working days, as opposed to other courts which function once or twice a week. Chief Magistrates have the same training as Resident Magistrates. The only difference is one of rank, Chief Magistrates being above Resident Magistrates).
A magistrate or judge must possess a Law Degree from a recognised university. In addition, for a judge or magistrate to operate in Kenya, he or she must attend the Kenya School of Law, and only then can they be admitted to the Bar.
The appointment of magistrates is carried out by the Judicial Service Commission. Judges are appointed by the Head of State (The President), acting on the advice of the Judicial Service Commission.
Controversy has surrounded the issue of judicial appointments in Kenya. There have been complaints, that judicial appointments are dominated by the Executive, and that judges in particular are appointed more frequently from the ranks of magistrates, than from among lawyers in private practice. As one lawyer puts it bluntly: "Magistrates are rewarded for "services rendered to the system", by being appointed judges to the High Court".
Accusations abound, that the Commission's duty of recommending judges for appointment to the High Court, is merely theoretical. Why? Because members of the Commission are themselves appointed by the President, and their recommendations are not legally binding upon the President. In practice, people say that it's the Executive plus the Chief Justice who select judges.
Some members of the legal profession are of the opinion that in the appointments system, there must be a way in which the views of an independent body such as the Bar, can be considered. Others disagree. They say that opening up decisions on appointments to other bodies, is a recipe for abuse, because candidates would feel impelled to lobby for appointments.
It should be noted that Chief Justice, Majjid Cockar, has exonerated the Executive from accusations that it interferes with the Judiciary. Justice Cockar says: "There is no basis for such accusations".
In 1988, a Constitutional amendment, removed security of tenure from members of the Judiciary. In 1990, after substantial pressure, (both national and international), the Constitution was again amended to restore tenure protection. It is now a requirement that judges and other members of the Judiciary, can only be removed by the decision of an appropriate tribunal.
But, there are still criticisms, because this five-member tribunal is appointed by the President. It is therefore argued, that the President can determine the outcome of the tribunal, through a "selective" selection of its members. Judges who are removed, encounter difficulties in finding alternative employment. This is due to the British custom, adopted in Kenya, which bars former judges from practising in their former courts.
By 1991, the demand for political pluralism was making itself heard in Kenya, and this was the time when the judiciary faced most criticism. The Kennedy Memorial Centre for Human Rights, published a scathing report: "Justice Enjoined: The State of the Judiciary in Kenya". The report stated that: "If the rule of law is to govern Kenyan society, there must be independent judges, committed to upholding both the letter and the spirit of the constitutional guarantees, of fundamental individual rights".
Some judges have resigned, citing interference in their duties. Already, in 1987, Justice Francis Schafield handed in his resignation after a case he was hearing, was interfered with. Before Justice Schafield could complete the case, Chief Justice Cecil Miller intervened and transferred the case to another judge. Justice Miller later confirmed, that he had withdrawn the case from Schafield, after receiving certain "secret documents" from the Attorney-General, Justice Matthew Muli.
In early 1997, Justice Richard Kwach withdrew from a case he was hearing, saying that he could not proceed as he was unable to make an independent judgement. He later declined to travel to Mombasa for a seminar, saying he was ill. Informed sources said there was a plot to kill him on the way.
Justice Kwach was also among the members of the Commission of Inquiry, probing the brutal murder of Dr.John Ouka, Kenya's Minister for Foreign Affairs. The Commission, led by Justice Evans Gicheru, assisted by Justices Kwach and Akilano Mdade Akiwumi, was appointed in 1990. The Commission was just 246 days old, when President arap Moi ended its mandate. These particular judges were held in high esteem as the symbol of independent judiciary. They were praised for showing "the highest sense of patriotism and integrity committed to the rule of law and preservation of justice".
A magistrate told me that "in Kenya, the courts are independent and impartial. There may be a few cases of interference from the Executive, but each individual magistrate or judge should know how to handle the case". The first magistrate I approached on the subject, declined to be interviewed, saying that I had to get permission from the Registrar in the Chief Justice's office. "It's not that we're hiding anything", he said, "but it's protocol".
Chief Justice Cockar has clarified the extent of judges' independence while hearing a case. He says that "independence of the judiciary is confined to all thoughts, actions and decisions relating to the particular case being dealt with by a member of the Bench. And this lasts until a decision is given."
A Workshop sponsored by the United States Agency for International Development, was held some time ago, bringing together magistrates from fifteen districts in Kenya. The Workshop had as theme: "Towards Efficient Justice". Among other things, the Workshop discussed corrupt practices among magistrates, court clerks and prosecutors.
Disappearance of case files handled by court clerks is current practice. It's clear that a certain amount of money changes hands, to ensure that a particular file conveniently "disappears". In fact, corruption among court clerks has become so common, that a joke going the round of legal circles, stated that judges' remunerations were increased, so that their salaries could be at par with their court clerks' "earnings".
Prosecutors have been blamed for taking complaints for granted, and for failing to understand what lies behind a particular complaint. During the Workshop, Justice John Mwera said that court prosecutors should undergo legal courses, to enable them to understand the environment they operate in. They should be issued with certificates or diplomas of competence after these courses.
There are subordinate courts which are divided into first and second class. These courts hear both criminal and civil cases. Another type is the Kadhi courts which deal with Muslim matters. Then there are the High Courts which have unlimited jurisdiction over all cases, including appeals from subordinate courts. The highest court in the country is the Court of Appeal.
Lack of effective communication in court rooms is decried. There have been calls for the simplification of terminology in courts. According to Prof.A.Gaskins (Faculty of Law, Moi University), illiterate people have great difficulty when they appear in court, because they can't understand the legal terminology (plus the fact that it contains a lot of Latin!). Lawyers and judges are calling for a simplification of the legal language, so that everybody can have adequate recourse to the law.
At this point, it should be recorded that an effort is being made in Kenya, to solve disputes by arbitration, rather than having to undergo a lengthy legal case. Arbitration is the process whereby parties involved in a dispute, agree to refer to the judgement of a respected neutral third party, rather than having their dispute resolved in an open court of law.
However, generally speaking, arbitration has not yet caught on in Kenya. Those seeking arbitration are mainly in the construction and insurance industries. Registered arbitrators are few, hence not many people have access to them.
Sometimes, law enforcement agencies have to arrest people. The Constitution takes this into consideration in Chapter Five - The Bill of Rights. This states that an individual should not be detained or imprisoned without trial. Upon arrest or detention, the individual must be informed as soon as possible of the reasons for the arrest or detention. The person arrested must be taken before a court within 48 hours of being arrested, unless this happens over a weekend or public holiday. In cases of serious crimes like murder or treason, one must be brought before the court within fourteen days of arrest.
There have been numerous complaints about the inadequacies and loopholes in the Bill of Rights. The fundamental rights of citizens are guaranteed in Sections 70 and 83, but they are modified by certain limitation-clauses which require careful interpretation. In practice, it seems that rules relating to the arrest and detention of suspects are not being followed. Ignorance has been cited as a major cause of arbitrary arrests. Mombasa Chief Magistrate, Aggrey Muchelule, says: "A police officer believes he is all-powerful, and members of the public entertain this belief".
Yes, Kenya has the necessary legal framework for guaranteeing a citizen's rights, but it is the putting into practice of this legal framework which leaves room for improvement.
END