How to speed up the wheels of justice
Now than ever before, many Kenyans are showing interest in the justice system and the rule of law. The high-profile murder cases, corruption trials, extra-judicial killings and the referendum discussion have got Kenyans from all walks of life commentating on the justice system.
The zeal with which Director of Public Prosecution (DPP) Noordin Haji has been working with Director of Criminal Investigation (DCI) George Kinoti to speed up the investigations has reawakened the lost hope in our justice system.
The media have also been keen to ensure that the citizens are well-informed about what is happening in or outside courts. The media have provided live coverage of cases and expert legal analysis to give more insight into the cases. After what can referred to as a good job by the DPP and DCI, Kenyans’ eyes are now on the courts.
They are waiting to see the day when graft cases will be tried and to completion. They are looking forward to the day when the Asset Recovery Commission will report about significant recovery of assets acquired through corruption. That is probably the day when Kenyans will begin to respect the apparatus fighting corruption. Anything less than a conviction and/or asset recovery is just entertainment to them.
The people want to see speedy conclusion of the high-profile murder cases and those convicted punished for their wrongs. This will build trust in our courts. Families of victims of extra-judicial killings, too, want to see justice served and those culpable facing the legal consequences.
What most Kenyans do not know is that it takes an average of two-and-a- half years for a case to be concluded. This means, if not granted bail and/or unable to fulfil bail and bond terms, an accused person is likely to spend that long in remand. In some instances, accused persons spend more than six years in remand awaiting the conclusion of their trials. Are Kenyans ready to wait this long for justice to be served? Your guess is as good as mine!
According to the Judicial Annual Review, 2017, there was a backlog of 315,378 in 2016/17. There are some valid reasons for this. The major one is the shortage of staff. There are, for instance, only 459 magistrates against the required number of 687.
So what can be done? To speed up trials, Active Case Management should be embraced. This can simply be defined as a concept that the court schedules the proceedings in any matter. The court has a wide range of powers in regard to Active Case Management and the directions given by the court after the issue of proceedings should provide a framework and a schedule for dealing with a case. The proceedings could include the filling of the case, a response and the pre-trial conferences. Active Case Management in Kenya is anchored on Kenya Gazette notice No. 1340. They provide guidelines for a judge/magistrate on the scheduling for the submission or completion of the relevant pleadings, court appearances, and other matters.
Each stage has a timeframe in which it must be filed with the court or completed. These guidelines should be replicated in the anti-corruption and murder cases and implemented fully.
However, what often happens in our system is “inactive case mismanagement”. A case is filed and nothing moves forth. The next dates are set without clearly examining the consecutive trial proceedings and dates. Our courts are also a victim of unnecessary adjournments by the parties.
A survey conducted by the Judiciary in 2014 found that the parties’ unpreparedness accounts for 44.78 percent of case delays and the courts not being in session. Delays in court cases are occasioned by missing investigating officers, unprepared prosecutors, absconding witnesses and unnecessary adjournment requests by the defence. The probation officers have been cited as the leading reason for delays in court processes, accounting to 18.34 percent of the case backlogs.
There is usually a pass of baton amongst the court officials calling for an adjournment in a matter. There are a few times that I have seen parties being put on the spot by a judge/magistrates to explain their grounds for seeking adjournments but many are the times the bench allows this on frivolous grounds.
Active Case Management ensures that all the matters in court are dealt with justly, expeditiously and at a proportionate cost. We all agree that justice delayed is justice denied. And until we embrace the Active Case Management where we can ascertain the possible time for case closure, then we should brace ourselves for more feet dragging, delays and frustrations in the courts.
This article was first published here