When Chief Justice David Maraga issued a statement decrying MPs’ move to reduce the Judiciary budget, he was speaking for all Kenyans not just the Judiciary. He was simply saying the cuts were fundamentally going to affect the people of Kenya directly.
One of the fundamental provisions in our Constitution is access to justice by all Kenyans. Access to justice in its narrowest sense represents the formal ability to appear in court. Broadly speaking, it engages the wider social context of our court system, and the systemic barriers faced by various members of the community.
Internationally, access to justice is more than improving an individual’s access to courts or guaranteeing legal representation. It is usually defined as the ability of people to seek and obtain a remedy through formal or informal institutions of justice for grievance in compliance with human rights standards. People’s rights are abused at all levels of governance structures and there is need for courts to step in as an independent arbiter.
The building of more courts in the 47 counties will bring justice closer to the people. There is no access to justice where citizens (especially marginalised communities) fear the system, see it as alien, and do not have access to it.
Where the justice system is financially inaccessible and judicial officers occupy buildings and courts that are condemned or unfit for habitation, then the people of Kenya are being denied their right of access to justice. Access to justice supports sustainable peace by affording the population a more attractive alternative to violence in resolving personal and political disputes.
Parliament must therefore be reminded that this is not an area for settling scores among the arms of governments. Many courthouses and police stations only exist in urban, populated areas, leaving the rest of the country without proper access to the formal justice system.
It is difficult to transport judges, prosecutors, defense counsel, court administrative staff and officials, police as well as logistical/security support to areas where the justice system has ceased to function. Where there is no justice system, chaos and impunity thrive and violence is the order of the day.
It is noteworthy that the Judiciary has been struggling to come up with mobile courts, albeit unsuccessfully because of lack of funds and structural capacity. That means areas where emergency and acute needs and services are required largely go unattended.
There is need to urgently provide long-term solutions to access to justice challenges. The Judiciary’s efforts to build courthouses and related infrastructure outside urban areas should be commended. Parliament and the Executive must support these efforts.
The late Justice Lewis Powell Jr of the US Supreme Court said, “Equal justice under law is not merely a caption on the facade of the Supreme Court building; it is perhaps the most inspiring ideal of our society. It is one of the ends for which our entire legal system exists. It is fundamental that justice should be the same, in substance and availability, without regard to economic status.”
It is noteworthy that the government has allocated Sh400 billion to Jubilee’s Big Four agenda, which is the main focus of President Uhuru Kenyatta in his second and final term in office. The four pillars — manufacturing, universal healthcare, affordable housing and food security — cannot be achieved without access to justice because whenever there are disputes in these areas they will have to be resolved in the courts of law.
Kenyans must therefore come out and support Maraga’s quest for more money to build more courts. Without equal access to the justice system, many low-income Kenyans struggle with legal problems that negatively affect their livelihoods, health, housing, marriages and families. If we do not ensure the poor have access to the judicial system, they become disenfranchised and a target for the unscrupulous.
Former president, East Africa Law Society, and an Advocate of the High Court of Kenya