The Changing Landscape of Justice in Kenya: A 60-Year Journey
The Changing Landscape of Justice in Kenya: A 60-Year Journey
By Hon. Justice Martha Koome
The changing landscape of justice in Kenya reflects the social and political transformation of our country over the last 60 years. The main goal of these transformative initiatives has been to improve the institutional performance of the Judiciary and to enhance access to justice for all Kenyans.
At independence in 1963, the Judiciary was perceived as an extension of the colonial government, often favouring colonial interests in its decisions, creating the need to indigenise the institution by increasing the representation of Kenyan nationals in key judicial positions. This process was slow and gradual, but it has eventually resulted in the Judiciary reflecting the true face of our nation.
From the late 1990s to the early 2000s, the government initiated a comprehensive governance and justice programme, known as the Governance, Justice, Law and Order Sector (GJLOS) Reform Programme. GJLOS recognised the importance of governance, justice and legal sector reforms for economic recovery. The enactment of the 2010 Constitution gave a fresh impetus to the quest to position the Judiciary as an independent and effective guardian of the rule of law. The Constitution significantly restructured the Judiciary, introducing measures to enhance its independence, accountability, and transparency. It also established the Judicial Service Commission (JSC), as an independent body responsible for promoting and facilitating the accountability and independence of the Judiciary.
In the post-2010 era, the Judiciary has made great efforts to ensure grassroots presence of courts in most parts of our country, which has had a positive impact on access to justice. In the past, justice was a privilege of those who could afford to travel to major towns, with the High Court mostly found in the then provincial headquarters. Today, the Judiciary has expanded its reach, and justice is more accessible to Wanjiku. Our target is to have a High Court and Courts of Equal Status in all 47 counties and a Magistrates’ Court in the 290 constituencies.
Today, we have High Court stations in 41 counties out of 47 counties, with five more counties having a High Court sub-registry. We also have 127 Magistrate’s Courts stations. This has increased access to justice by bringing judicial services closer to the people. The Court of Appeal has been decentralised to the regions, with permanent benches in Kisumu, Nakuru, Nyeri and Mombasa, in addition to Nairobi. This is a contrast to the pre-2010 era, when there was only one permanent Court of Appeal bench based in Nairobi. We also have 51 mobile courts, with most of them serving the arid and semi-arid parts of the country. The aim is to ensure that no Kenyan travels for more than 100 kilometres to access justice.
In order to enhance its responsiveness to the justice needs of vulnerable and marginalised groups, the Judiciary has also created tailor-made courts such as the Small Claims Courts, the Sexual and Gender-Based Violence (SGBV) Courts, and the Children’s Court
We have also embraced digital transformation, moving from paper-based to digital courts. This has been achieved through initiatives such as e-filing, virtual court proceedings, and the Case Tracking System (CTS). These initiatives have increased transparency, accountability, and reduced delays and corruption in the dispensation of justice. E-filing has been rolled out across the country, with 11 counties already using the system and the target is to have all courts on board by February 2024. The Judiciary is also working towards linking its system with those of other justice agencies. This will improve coordination and expedite the administration of justice.
The Judiciary has opened up its operations to public scrutiny and stakeholder participation. It has regularly released the annual State of the Judiciary and the Administration of Justice Report (SOJAR) to enhance transparency and accountability. It also participates actively at the NCAJ Council at the national level and Court User Committees at each court station to provide a platform for dialogue and collaboration among justice sector actors.
We have adopted data-driven decision making to enhance the performance and service delivery by the Judiciary. The daily case returns provide real-time data on the status of court proceedings, enabling informed decisions such as deployment of judicial officers and judges.
The Judiciary institutionalised performance management in 2016 to monitor and enhance the productivity and effectiveness of judicial officers and staff. In addition, we have invested in Continuous Judicial Education through the Kenya Judiciary Academy, which ensures the constant enhancement of the knowledge, skills and competence of judges, judicial officers and staff.
We have embraced a multi-door approach to justice delivery, recognising that courts are not the only avenues for resolving disputes. The Judiciary now facilitates the use of other modes of dispute resolution such as mediation, arbitration, conciliation, and Alternative (traditional) Justice Systems (AJS).
The courts have over the years developed progressive indigenous jurisprudence that is increasingly being cited positively by scholars and other courts around the world. Due to this, other judiciaries from around the region are increasingly paying bench-marking visits to the Kenya Judiciary to learn from our jurisprudence and innovative court practices.
However, the Judiciary still suffers the challenge of inadequate funding hindering it from operating optimally. As we reflect on our nation’s triumphs and challenges over the last 60 years, we must recognise that justice is a basic need, just like education and healthcare. Therefore, we should provide commensurate funding to the delivery of justice.
In addition, we must be vigilant to thwart creeping threats to roll back on gains on judicial independence. Kenyans must remain vigilant to defend judicial independence, which is a sacrosanct principle of our Constitution. Judges and Judicial Officers must exercise their constitutional mandate without fear of persecution. The Constitution protects Judicial independence and as we work towards protecting the rights and freedoms of Kenyans, we draw strength from that protection. My office and the Judicial Service Commission will continue to protect Judges and Judicial Officers from harassment or any form of aggression on account of decisions made in their continued duty to defend and uphold the Constitution. Indeed, that is what the spirit of freedom commands.
It is therefore undeniable that the Kenyan Judiciary has achieved remarkable milestones in 60 years, which have improved access to justice, efficiency, and accountability. The transformation project is ongoing, with a clear commitment towards a people-centred justice system that is accessible, efficient and responsive to the justice needs and aspirations of Kenyans.
(Hon. Justice Koome is the Chief Justice and President of the Supreme Court of Kenya)