Professional misconduct by court staff sabotages judicial reforms

Gross misconduct among judges and other judicial officers, staff shortage and budget cuts still undermine the delivery of justice to Kenyans even as the court system reduces case backlog.

In the 2018/2019 fiscal year, 11 Judiciary staff were interdicted, 94 suspended and 25 issued with show-cause letters after 130 new disciplinary matters were registered with the Judiciary. The previous year, more than four times as many employees (49) were interdicted but fewer were suspended (38) or issued with show-cause letters (eight). Eight others had their salaries stopped.

Two in five employees who faced disciplinary actions were charged with forgery, the most common offense, followed by absenteeism (more than a quarter) and corrupt practices (11 percent). Everyone who was charged with fraud, misappropriation or loss of funds, forgery or giving false information were either interdicted or suspended. But all who were accused of work negligence or intoxication during work hours were asked to explain why a certain course of action should not be taken against them.

During the year under review, the Judicial Service Commission (JSC) received 162 complaints and petitions against judges, of which more than three-quarters were concluded, leading to action on twenty-five cases. Of these, four were forwarded to the president to appoint a tribunal

Over half of the cases received within the year (53) were resolved within six months, suggesting that the Judiciary is keen on addressing unprofessional conduct among staff.

More than half (72) of the disciplinary cases were against clerical officers while 10 percent (13) involved support staff.

During the year under review, the Judicial Service Commission (JSC) received 162 complaints and petitions against judges, of which more than three-quarters were concluded, leading to action on twenty-five cases. Of these, four were forwarded to the president to appoint a tribunal. One of them, the tribunal that investigated the conduct of Supreme Court Judge Jackton Ojwang’, declared him innocent. A second tribunal was appointed to investigate the conduct of senior justices Lucy Njoki Waithaka of the Environment and Land Court (ELC)), Njagi Marete of the Employment and Labour Relations Court (ELRC) and Martin Mati Muya (High Court) after the commission recommended that they be sacked. A labour court barred the tribunal from investigating Waithaka until a case she filed was determined.

Five other petitions were dismissed after hearings, four were withdrawn by the respective petitioners while five were awaiting the commission’s decision after hearings were completed. Hearings are ongoing on seven complaints. But a majority of complaints against judges, 111, were dismissed by the commission at the preliminary evaluation stage for touching on the merit of the case and independence of a judge. Some complainants were advised to pursue appeal or review.

Even though the Chief Justice kept a promise he made at the start of his tenure to drastically reduce case backlog over five years, complaints about slow and poor service continue to dog the Judiciary.

In the fiscal year ending June 2019, the Judiciary Ombudsman cumulatively received and processed 1,799 complaints, a two-thirds jump from the previous year and more than double (125 percent) the cases in 2015/2016, a year before Justice Maraga got to the helm of the Judiciary. The increase could be because more people are aware of their rights, according to the Judiciary. Out of these cases, more than half (1,064 or 59 percent) were processed and closed successfully.

Poor service, slow service and missing files made up over two-thirds of the complaints filed with the ombudsman in the last four fiscal years. Indeed, some courts such as Migori Law Courts listed one of its main challenges as loss of court files. Kibera Law Courts reported that about half of police files are usually missing in court. Kisumu Law Courts also pointed out that missing police files were preventing prosecutors from proceeding with cases.

Complaints about lack of allocation of dates increased almost 20 times, in the year ended June 2019 over the previous year, the largest increase, followed by cash bail refunds that expanded four times and missing files that went up by more than 80 percent. Of the top 10 most common complaints, progress was only made on delayed rulings/judgments that reduced by about a fifth.

In the middle of last year, backlog cases over five years stood at 39,781, a decrease of more than three-quarters (77 percent), from 170,186 suits in January 2017, the onset of the Sustaining Judiciary Transformation blueprint that emphasises improvement in the speed and quality of service. The largest decline by court was recorded in the High Court (83 percent) followed by the Magistrate’s Court (76 percent) while the lowest decline at four percent was reported by the Environmental and Land Court.

Overall, at the end of the 2018/2019 fiscal year, the total number of cases that had been in the court system for more than a year (backlog) stood at 341,056, a nine percent reduction from 372,928 the previous year. More than two-thirds of the cases were aged between one and three years, more than a fifth between three and five years and 12 percent were over five years.

Typically, courts seek to resolve cases filed before them within the shortest possible time because backlog cases depict delayed justice and inefficiencies in the entire justice chain. “Increase of case backlog over time is occasioned by resolved cases being less than the incoming matters, a phenomenon that is aggravated by an interplay of factors within the justice sector institutions and social economic factors at the periphery of justice sector institutions,” reports the State of Judiciary and Administration of Justice Annual Report 2018/2019.

Among those factors is an acute staff shortfall in the Judiciary of nearly half (45 percent). By the end of June last year, the Judiciary had 5,584 employees, against the approved 10,243. Among those needed were Court of Appeal judges (11), High Court judges (118), chief magistrates (22), senior principal magistrates (91), principal magistrates (142), senior resident magistrates (192), resident magistrates (207), and deputy registrars (59).

In the latest Judiciary report, several courts reported that a staff shortfall was the biggest hindrance to service delivery. Bomet Law Courts complained of no presiding judge at the station and hence a backlog build-up in the High Court, while Embu Law Courts too mentioned a shortage of judicial officers at the court station. Maseno Law Courts outlined the need for an additional judge for the ELC and ELRC in order to adequately serve the counties in the region. Embu Law Courts also highlighted a shortage of judicial officers. Kisumu High Courts made the case for an additional judge for the ELC and ELRC to reduce the case backlog and increase access to justice for other counties in the region.

By the end of the fiscal year 2018/19, there were 569,859 pending cases − what remained unresolved at the end of the year − which comprised 249,264 (44 percent) criminal cases and 320,595 (56 percent) civil cases.

Pending cases together with new filed cases show the growth of courts’ workload and hence an increase implies the need for the Judiciary to institute measures to increase its workforce and infrastructure.

But despite limited and inconsistent funding for the automation programme in the courts over the last five financial years, the justice sector has used information and communication technologies to enhance efficiency, access, timeliness, transparency, and accountability, which has contributed to the significant decrease in backlog cases.
The Judiciary development budget reduced by almost a third to Sh3.2 billion from in the year ended in June 2019 from Sh4.16 in the fiscal year 2016/2017. The government’s contribution to the budget drastically reduced by 90 per cent from Sh1.45 billion to Sh147 million over the same period while the recurrent budget was stable.

A large proportion of the development allocation was from the World Bank under the Judicial Performance Improvement Project, amounting to Sh2.99 billion.

Just one in five shillings spent by the Judiciary in the fiscal year 2018/19 went to development projects. The Judiciary receives less than one per cent of the total budget that is allocated to the three arms of government.

Access to justice requires court buildings with adequate court rooms, registries, chambers, offices and public waiting areas. Physical access of litigants to courts without incurring huge travel costs is also critical. But the budget cuts have resulted in many critical projects, especially those funded by the government, stalling or recording minimal and slow progress. Only construction at Hamisi Law Courts and Iten Law Courts that started in 2015 and Mombasa Law Courts, initiated in 2014, were completed in the period under review.

In total, 469,359 cases were resolved by courts between July 1, 2018 and June 30, 2019 against a total of 484,349 cases that were filed over the same period. This translated to an overall 97 percent case clearance rate. The most efficient court was ELC with a clearance rate of 159 percent, followed by ELRC (158 percent) and High Court (121 percent).