Four hundred judgments to write, no pens or paper

By NLM Writer

O

ne of the promises that Chief Justice David Maraga made to Kenyans when he took office was that he would do everything in his power to reduce the backlog of cases that has historically dogged Kenyan courts. To his credit, he has continued in Mutunga’s footsteps in expanding the physical infrastructure, pushed for the employment of more judges as well as, in a host of circulars setting targets for Judges and Magistrates, compelled them to deal with backlog. 

But now, alongside his sudden mildness, government policy threatens to derail him. In a recent notice to government operatives, the Uhuru government has drastically cut government spending to save funds for the President’s Big Four Agenda. The biggest casualty is the Judiciary whose funds have been slashed by up to 50 percent. Where the arm was barely surviving, daily operations have become an outright struggle. And the public suffers along with it.

At Makadara, for instance, a highly placed source revealed that the station has been left to run on a measly monthly budget of Sh10,000. Essentials such as foolscaps, printing paper and pens are a rare commodity with luxuries such as tea for the overworked magistrates soon to be a thing of the past entirely. A stroll around the courts paints a grim picture that nobody would expect of the busiest criminal court in the region.

“He (Maraga) was brave at first, a breath of fresh air. But as attacks from the Executive have grown relentless he has coiled back into his skin leaving the institution exposed.”

A rim of paper is expected to sustain the whole station for an entire week. Knowing the importance of the commodity, court clerks have been reduced to “stealing” chunks for their various courts and hiding them away so that they have something to print court pronouncements on. At the typing pool, secretaries literally turn away anyone who shows up without their own paper. On occasion, they even inspect users to ensure that no one has made away with their paper. 

Magistrates are left in a catch 22 situation. On one hand resources simply aren’t available and on the other they have an obligation to honour the CJ’s directive that at least four judgments are read out every week. Insiders say that on a number of occasions, magistrates have been forced to postpone their decisions or deliver shallow “straight to the point” judgments in order to combat the shortfall. With the new directive, things are only going to get worse. Already the more progressive magistrates are digging into their own pockets if only to ensure that lack of the commodity doesn’t hamper their productivity.

Internet is another issue. In Makadara, it is virtually non-existent which is increasingly reflected in the decisions – many of which are increasingly shallow. The situation has forced magistrates to purchase their own internet even as others resort to using nearby hotels as satellite offices for research.  

“The irony is that while they are derided for writing bony judgments, no one seems to care about availing the requisite tools for producing standard decisions. Colleagues have been reprimanded for their style of writing. Some of them are on warnings,” one of the jurists reveals.

“The most annoying bit is the high court will undo our work on technicalities and many times compel as to hear matters afresh not aware for the difficult conditions we work in and the impracticality of applying the Constitution as it is sometimes.” 

Too much burden

The situation is particularly dire in the Chief Magistrate’s Court which, by nature, handles complex matters. During the recent purge by the Sharad Rao Committee, a magistrate was granted six months off to allow him clear pending judgments which were numbering up to 400. Frustrated, the magistrate didn’t write even one.

It is easy to dismiss him as lazy until one has been to a place like Makadara and seen that courts sit well into the night. The frustrations that accompany the job are too many and some just give up. “The Chief used to sit so late that I would leave home to come lock the courtroom at 10pm when he was done” says one of the clerks who spoke to the Nairobi Law Monthly. “He doesn’t stay as late nowadays.”

To ease the burden, a plan has been mooted to introduce case clerks and court observers in every court to help magistrates write their many rulings. Indeed, a pilot project spearheaded by the Kenya Law Reform Commission and the University of New York is underway with a view to convince government that assisting magistrates can only be good for justice delivery. But with government’s reluctance to invest in anything other than the Big Four, there is little hope of their proposals coming to life – not in the foreseeable future at least. 

For the most part, government seems to be speaking from both sides of the mouth. On one hand they acknowledge the need for more personnel and go ahead to expand the Bench. On the other, they are unwilling to invest in the system to guarantee a conducive working environment. In a marker of the greatest irony, there are new magistrates but no courtrooms – sessions are held in chambers. 

To serve the numerous clients of the state, magistrates are forced to show up at work at day break and leave late in the afternoon: only then can they find time to listen to matters and still have time to write. As if the conditions aren’t difficult enough, they now have to buy their own stationery as well as find their own internet.

Probation officers too have caught the disease. While speaking to one of the magistrates, a probation officer walked in with prayers that the court grants an adjournment to allow him more time to prepare a probation report. The grounds were that his office had been seriously hampered by the cash crisis to the extent that officers had to dig into their own pockets in order to generate the reports.  The learned magistrate denied his wishes citing the immense peril it would cause the accused person. But that also meant that he proceed to assess the accused without the report, which fact meant harm anyway. 

It leads one to ponder, why is that the Judges and Magistrates union can’t go a step further and simply deny the state audience or down its tools altogether?

But this isn’t even the most frustrating bit. What bothers many amongst the Bench is the lowly position the Judiciary seems to occupy in the hierarchy of arms and the speed at which the Executive will throw jurists under the bus when they don’t play ball.

Another magistrate who spoke to this publication on condition of anonymity revealed how a court has been unable to enforce a judgment decree issued in favour of the Teacher’s Union, leaving the judge to confess his helplessness. 

“It happened back in the day when I was still sitting at the State Law Office; to this day, the State has never settled the award.”

It is not an isolated case either. With the Judiciary lacking the machinery to enforce its orders and being constantly at the mercy of the Legislature which determines its budget, powerful state officers continue to urinate on the courts at will. The Miguna Miguna saga is one obvious incident where the Executive continues to defy the orders of the courts at will. 

It leads one to ponder, why is that the Judges and Magistrates union can’t go a step further and simply deny the state audience or down its tools altogether? While some would interpret it as a betrayal of their oath, surely a strike of such magnitude would compel a change of attitude from the executive. As it were, jurists aren’t convinced of the direction of the judiciary under CJ Maraga, with those spoke to the Nairobi Law Monthly terming him as a weak leader who would rather pander to the state.

“He was brave at first, a breath of fresh air. But as attacks from the Executive have grown relentless he has coiled back into his skin leaving the institution exposed.”