Transforming the Courts
“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. “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 agreed with Mutunga’s assessment. A popular saying highlighted persistent corruption: “Why hire a lawyer when you can buy a judge?” With only 53 judges and 330 magistrates for a population of 41.4 million, the Kenyan court system had a massive backlog of almost 1 million cases. Litigants often bribed staff to get earlier court dates or to “lose” the case file and prevent a hearing altogether. In 2010, 43% of Kenyans who used the judiciary reported paying bribes, according to Transparency International.
Problems of low administrative capacity and lack of accountability plagued the judiciary. Few 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 high-quality services, and the judiciary itself had no way to track case status 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.
The 2010 constitution provided a clear mandate for judicial reform through a restructured court system headed by a Supreme Court, and a Judicial Service Commission severed 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 US$120 million grant from the World Bank, and contributions from other organizations including Germany’s international development program, GIZ, and the UNDP.
Mutunga began by assembling a team to assess the judiciary’s challenges and create a reform plan. Two key members were Joel Ngugi, a High Court judge, and Duncan Okello, the chief justice’s chief of staff. The team began to sort through the many previously-proposed reforms — internal reports, the recommendations of civil society organizations, and the work of a 2009 task force. They consulted extensively with judges, magistrates, and staff to ensure internal support for the reform agenda. “Even if you disagree with elements in it for subjective reasons, you cannot claim you were not part of the consultation,” Okello said.
The result was the Judiciary Transformation Framework, issued in May 2012, which identified four pillars of reform: people-centered delivery of justice, including the establishment of customer care desks and stronger complaint mechanisms; increased training and clarified responsibilities; adequate infrastructure and resources; and increased use of information and communications technology.
To oversee the implementation of the framework, Mutunga appointed Ngugi as director of the new Judiciary Transformation Secretariat, charged with coordinating initiatives, tracking progress, and sharing best practices across courts.
The secretariat led 38 workshops across the country to present the new reform program. The workshops brought together judicial officers and support staff — including those, such as cleaners and drivers, who had never interacted with judges on an even footing.
The newly inclusive approach “was a culture shock for them,” Ngugi said. “It immediately announced that things had changed.”
At each of the workshops, judicial officers and staff discussed challenges the judiciary faced and strategies to respond. Ngugi said this process helped demonstrate that “the transformation framework was actually not an alien thing but something they themselves were saying.” The prospect of training opportunities and increased salaries and benefits also made sure the program had buy-in.
The 2010 constitution’s vetting process, where each judicial officer faced a board review to determine if he or she was fit to remain on the bench, also helped head off internal resistance. The judicial officers most likely to oppose reforms — those with histories of corruption, bias, or not working hard — were the ones most preoccupied by the vetting process.
The transformation framework called for streamlined court procedures and clearer processes for litigants trying to navigate the system. Court registrars took the lead on standardizing and communicating previously varied procedures, with the goal of having a registry manual for each court. Each court station was also required to produce a service charter in the form of a billboard, listing requirements, fees, and timelines for each court process.
Physically organizing case files was also a priority — they were often difficult to locate, and it was easy for unscrupulous staff members to remove important documents or hide whole files. The High Court registry reorganized and color-coded its files, and the registrars implemented a tracking system that required anyone who retrieved a file to leave a “tracer card” in its place so others could easily see who had it.
Better monitoring and information sharing were essential. Initially, the reform team had wanted to roll out an electronic case management system to monitor delays, digitally store and share documents, and assign cases to judges randomly to limit corruption opportunities. But many courts had no Internet connections, reliable electricity, or even computers. And because courts varied in their processes, it was impossible to develop a single nationwide system without first standardizing procedures. “We started encouraging [court] stations to develop their own local solutions,” said Ngugi, but “this didn’t solve one of our major problems, which was having [centralized] access to data.”
In January 2013, Mutunga established a committee to develop a performance management system for the judiciary. To get the data necessary to evaluate performance, the committee developed a new case tracking tool, a simple excel spreadsheet with drop-down menus customized for each court’s procedures, known as the Daily Court Returns Template.
At the end of the day, an administrative officer at each station would update the spreadsheet and send a copy to the Performance Management Directorate, sometimes from an Internet cafe if the court lacked a reliable Internet connection. The template allowed the directorate to track case assignments and processing times and facilitated distribution of caseloads. However, the tool did not allow document sharing, and it was difficult to verify the data court stations submitted.
Stronger accountability also required improving the judiciary’s response to complaints as well as greater public engagement. In 2013, Mutunga established an ombudsperson’s office to collect and resolve citizen complaints.
Citizens could bring their complaints to the office, located in downtown Nairobi, call, or send text messages, letters, or emails. Staff logged complaints and a deadline for response or resolution into a database used by the Nairobi office and liaison officers at each court station. Inadequate responses or patterns of complaints could be grounds for disciplinary action against judges and administrative staff.
However, getting citizens to use the resource was a challenge. Kennedy Bidali, the first ombudsperson, believed his team received only a fraction of the complaints they could help with. “We’ve tried the usual,” he said — from appearing on radio and television programs to distributing written materials and T-shirts — “but it’s not sufficient, and it’s not easy.”
Mutunga believed greater public participation would help create pressure to better deliver judicial services. Court Users Committees (CUCs), which had existed at many courts since 2006, were “one of our vehicles to communicate to the citizens,” said Reuben Nyakundi, a High Court judge. The CUCs brought together the local judge or magistrate and others involved in the justice system including police, civil society organizations, and community leaders. The transformation framework made the users committees an official part of the justice system, and used them to collect information about local-level issues and performance. In addition, when the judiciary introduced a new policy, such as new procedures for traffic arrests, committee members helped inform their communities.
In spite of these promising efforts, the judiciary’s handling of the 2013 presidential election and ongoing corruption scandals raised questions about the direction of reforms. After a close presidential race, the losing candidate, Raila Odinga, challenged the vote count in the Supreme Court.
The court dismissed Odinga’s petition and unanimously ruled that the election had been conducted in accordance with the law and the constitution. The decision received intense criticism. George Kegoro, executive director of the Kenyan section of the International Commission of Jurists, criticized “the frailties of the process,” saying that both how the court handled the case and the substance of the judgment “have been at the heart of a huge loss of confidence in the judiciary.”
Public trust in the judiciary was shaken further when in August 2013, the chief registrar was alleged to have made improper payments totaling KSh2.2 billion (US$25 million at the time). She was dismissed, along with several other senior administrative staff implicated in the scandal.
The high-level administrative corruption drew attention to the persistence of graft throughout the judiciary. The reform program struggled to correct the problem, and in August 2015, Mutunga gave a much-publicized speech at the annual judges’ colloquium, expressing concern about “reports on an upsurge in this immoral scourge.” In February 2016, an internal probe recommended that Supreme Court Justice Phillip Tunoi be investigated further over allegations that he received a Ksh200 million (US$2 million) bribe to influence an election petition.
Four years after the judiciary began its drive for reform, several key initiatives in the judicial transformation strategy were underway, but most were in the early stages of implementation. Courts were working on standardizing procedures, drafting manuals that specified expectations and instructions. The High Court had finalized and published its manual, but as of October 2015, the manuals for the Court of Appeal and magistrate’s courts were still undergoing review by judicial officers and staff.
The institutional pressure and streamlined procedures also helped begin to clear the massive backlog, which stood at 311,800 cases as of 2014. “We’ve recorded tremendous progress, especially on lost files,” said Okello. “I think that institutionally, knowing that somebody was paying attention put people on their best behavior.”
The judiciary hired more than 200 new judges and magistrates and established 25 new court stations since 2011, in an effort to increase capacity and access to the judiciary in remote areas.
Each court was required to set up a CUC and create a customer care desk and service charter, though the quality of these varied from court to court. In four years of operation, the Office of the Judiciary Ombudsperson handled more than 21,000 complaints and suggestions.
Public perception of the courts improved significantly in the early years of the reform effort, with Gallup citing that 61% of Kenyans had confidence in the judiciary in 2013, as compared to 27% in 2009.
The gains in confidence eroded over time, however. From November 2013 to April 2015, Ipso polls found that the number of Kenyans expressing “a lot of confidence” in the Supreme Court fell from 28% to 21%, and 21% to 12% for other courts — possibly reflecting high-profile controversies over corruption and the presidential election decision.
The focus on cultural change had paved the way for more concrete reforms, said Chief Registrar Anne Amadi. “We are more conscious of the fact that judicial authority derives from the people,” she said "Every morning, when you're coming to court, you're coming to deliver justice; and you have to be able to demonstrate that you delivered it."
Many cited Mutunga’s personal leadership as critical to the reform effort. With his retirement set for June 2016, much depended on the next chief justice. Mutunga said that some reforms, like increased salaries and data-driven decision making, would be difficult to reverse, but others, from cultural changes to fighting corruption, required sustained support.
“The foundation has been laid,” said Nyakudi. “Now we have to build on it.”
Caroline Jones and Maya Gainer developed this abridged version based on the full case study, Transforming the Courts: Judicial Sector Reforms in Kenya, 2011–2015, drafted by Maya Gainer.