How Kenya Cleaned Up Its Courts
BY JULY 9, 2016“We found a judiciary that was designed to fail,” said Willy Mutunga, Kenya’s new chief justice, in a speech four months after his June 2011 confirmation to the post. “We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic.”
Many Kenyans doubtless agreed with Mutunga’s assessment. A popular joke,“Why hire a lawyer when you can buy a judge?” summed up many Kenyans’ views of their country’s judicial system. In 2011, Kenya had only 53 judges and 330 magistrates for a population of 41.4 million. There was a massive backlog of almost 1 million cases. Litigants often bribed staff to get earlier court dates or to “lose” case files and prevent hearings altogether. In 2010, 43 percent of Kenyans who sought services from the judiciary reported paying bribes, according to Transparency International.
Few of the judges responsible for managing court stations had any training or experience in administration, and many received no on-the-job guidance. With little knowledge of how the court system worked, the public was unable to demand higher-quality services, and the judiciary itself lacked systems to track cases or to hold judges and magistrates accountable for delays.
The courts were also widely seen as politically biased. Until the passage of a new constitution in 2010, the president had unilateral power to appoint not only the chief justice of the Court of Appeal, then Kenya’s highest court, but also all the members of the Judicial Service Commission, responsible for hiring and disciplining judges.
Kenya’s disputed December 2007 presidential election threw the public’s lack of trust in the judiciary into sharp relief. The ruling Party of National Unity was declared the winner of a close race, but the opposition Orange Democratic Movement accused the government of fraud, and both national and international observers said the tallies had been manipulated. However, opposition leaders refused to settle the issue in court because they believed their party would not receive a fair hearing.
In the weeks of violence following the election, approximately 1,200 Kenyans were killed and up to 600,000 were displaced. After an international mediation process, Kenya’s major parties formed a coalition government and appointed an independent commission to draft a new constitution that would address the underlying causes of the violence — the weakness of the judiciary among them.
The resulting 2010 constitution provided a clear mandate for judicial reform, specifying a restructured court system headed by a Supreme Court and separating the Judicial Service Commission from the executive. Funds to support the reform process came from a doubling of the national budget allocated to the judiciary in the 2011-2012 fiscal year, a $120 million grant from the World Bank, and contributions from other organizations including Germany’s international development agency and the United Nations Development Program.
