The case build-up in the Kenyan Judiciary at the end of June 2019 stood at 341,056 cases. This is according to a policy brief titled The Case Backlog Problem in Kenya’s Judiciary and the Solutions.
Of these backlogs, 66 per cent are between one and three years; 22 per cent between three and five years and 12 per cent are above five years.
Notably, 44 per cent of all case backlogs have been pending for longer than three years. The average pendency during the five-year period preceding 2019 was 507,850, with new trends indicating significant improvement in dealing with the cases.
With such staggering backlog, pendency and delay of judicial proceedings, the Judiciary needs a radical paradigm shift.
An audit of case backlog by the Justice and Legal Affairs Committee of the National Assembly established that inadequate judicial officers and derisory budgetary allocation is the pivot around which case resolution and delay hinges. But there’s more.
It has become difficult to defend some customary practices, particularly when they have outlived their significance. For example, courts have occasionally been turned into amphitheaters in which protracted battles are dramatically eternalised.
Given this background, Chief Justice Martha Koome has called on judicial officers to take individual initiative and responsibility to ensure case backlog is dealt with on a priority basis to manage inordinate delay in delivery and administration of justice. Koome reminded judges that case management should be court driven by, among other things, reducing the number of adjournments, striving to resolve cases with fewer hearings and discouraging interlocutory applications and preliminary objections.
It’s here that learned friends, being officers of court, have a role to play in fighting pendency. Lawyers can, for instance, play an important responsibility in this by persuading clients to resolve disputes at pre-litigation stage. But habits die hard.
A two-judge bench of the Supreme Court of India has persuasively simulated the practice espoused by the US Supreme Court that requires lawyers to restrict their oral arguments and legal submissions, including citations that carry only one best judgment on the issue to half-an-hour and three pages respectively.
The BBI appeal before the Appellate court was set for a four-day open hearing that was live-streamed. This is in response to the practice of lawyers arguing a case ad infinitum [to infinity/ for long].
Lawyers appearing in the US Supreme Court are given 25 minutes to argue a case and five minutes to respond to the other side’s thesis. This is grounded by Rule 28 of the US Supreme Court Rules on oral hearing, which limits each side to half-an-hour merits mention.
In Europe, the right of fair trial and public hearing within a reasonable time is mentioned under Article 6 of the European Convention on Human Rights.
A comparable provision under Article 50 of the Constitution of Kenya deals with the right of every person to have any dispute that decided in a fair and public hearing without unreasonable delay before a court established under the Constitution.
Article 47 protects the citizen against arbitrariness of the administration. It provides that every person has the right to administrative action that is expeditious, efficient, lawful, reasonable and procedurally fair.
Inexplicably regular malingering and adjournments can be ascribed to the gaming behaviour of parties and other stakeholders in a case as have interest in eternalizing the proceedings.
Indulgent outlook by courts on delaying strategies oils this power grid where devious litigants and lawyers scheme jointly to disallow just and fair termination of cases within reasonable time.
The gravity of the issue merits practical guidelines to deal with inordinate and unwarranted delay on the part of the defendant, prosecution, or any litigants of a case or their lawyers.
The use of alternatives and diversion to prosecution by applying administrative sanctions, including but not limited to demotion, surcharged for the laws, withholding of promotions or giving warnings and restitution may aid, if employed meritoriously.
By CJ Koome signalling the intent of the higher judiciary, it’s hoped that such guidelines will bring in checks, balances and discipline among erring parties and stakeholders.
Time, human and financial resources are limited public goods to be utilised by the Judiciary to achieve the highest common benefit.
Access to justice is a social good with a quantitative facet of happiness. Starving the judiciary of finances has a proximate connection with backlogs. Yet, other causes like practicing rules habit of lawyers, judges and administrative inefficiencies such as the delayed appointment of judges needs review.
The Judiciary should take a leading role in flattening the pendency curve through effective running of the judicial process.
Dr George Nyatundo is a legal scholar in India.
Dr Felix Asande is a lecturer, School of Law, University of Embu.
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