The legal fraternity is reeling with grief following the murder of Hon Monica Kivuti in open court on June 13 by an aggrieved accused person’s husband. After two weeks of closure of Makadara law courts, the Chief Justice has released a statement on the resumption of services at the court.
The CJ’s statement also contained what read like new security measures for all courts countrywide. She said the Judicial Police Unit, in consultation with the Inspector-General of Police, must reinforce security in all court stations by ensuring strict search protocols. No persons may be armed except for officers on duty assigned to provide security at the Court stations. This is certainly welcome.
As we embark on the task of making court stations safe, the Judiciary and the public should also consider a few more things about the expected scope of coverage of these measures and why they are important.
Court security system
There is hardly any information on the Judicial Police Unit and its legal and institutional framework, yet it is critical that we understand the workings of the JPU. As the CJ said, we expect the JPU to help the Judiciary establish responsive security policies and procedures for our courts. Therefore, for example, how many officers are deployed to the JPU? It is necessary for enough officers to be deployed to this unit to ensure uniform and consistent application of security policies in all courts. Also, the JPU must ultimately be under the command of the Inspector-General of Police, despite whichever arrangement is reached to implement of these measures – all police must be, as the Constitution says.
The United States National Centre for State Courts 2022 report, “Steps to Best Practices for Court Building Security”, outlines several essential things to consider in guaranteeing court station safety. One is establishing a security committee’ for each court. The JPU would benefit from the membership of such a committee. A security committee in the US is chaired by a judge and includes a member of the primary security provider, a representative of that county, or any other funding source. These committees deliberate on issues related to security within the court station and are be concerned with ‘who does what, by when, and what resources are needed’.
We can adopt a similar system and have the heads of the station, a representative of the court station’s JPU, a representative of the Judiciary for purposes of funding and resources and representation from the local Court Users’ Committee. The CUC brings together actors and users in the justice sector and it coordinates functions among the justice sector actors and users. The head of the court chairs the CUC, which develops effective security protocols and help with the seamless uptake of security measures.
The CJ has also proposed mandatory search protocols and that only officers assigned to the particular court are to be armed, to provide security for court stations. The Judiciary must exercise extra diligence as custodians of the court. It must mandate periodic mental assessments for the officers ‘accredited’ to have guns within its premises and for confidential reports submitted to the heads of stations where an officer has been flagged. Immediate action must then be taken to ensure any officer suffering from some mental disturbance gets treatment and is cleared before resuming duty. Additionally, judicial officers, judicial staff and all members of the public must be subject to these searches, with no exceptions.
The Judiciary must also conduct regular security risk assessments for all judicial officers to ascertain each officer’s individual security vulnerability. This will include officers working in remote areas at risk based on the notoriety of the case the officer is handling. There should be a policy requiring threats and incidents to be reported to the JPU and the court’s administration immediately. The JPU must have a reasonable capacity to prioritise the investigation of all threats and incidents, and steps must be taken to mitigate any credible threat.
Mandatory continuous security and safety education programmes for judicial officers and court staff must be carried out, and the topics covered should include de-escalation of threats, security assessments, judicial protection, particular issues in security for domestic violence cases, incidence response, dangerous individuals and security protocols during high-profile travels, mental health issues, home safety techniques, suspicious packages, bomb and other threats, as well as self-defence and emergency evacuation.
Court buildings
Another thing to be considered is whether the Judiciary has protocols that guide the design and construction of court stations to ensure that they are safe. Most of the courts in Kenya were not made with security protocols in mind. The large volumes of people visiting the courts – oftentimes disgruntled and often law-breaking citizen – make this protocol very critical. All courts must now instal X-ray imaging systems at the public entrance screening stations, with at least one trained officer assigned full-time to screening.
There ought to be only one entrance through which the public can enter the court building, and any other entrances must always be secured – so those with harm in mind cannot come through another entrance. Signage must be put up at the main entrance alerting the public to what items cannot be brought to the court station, i.e. knives, guns, scissors, etc., and security sweeps should be done daily for the whole court station in the morning before letting in the public. A temporary table and other physical structures can serve as screening stations where there are no systems. The screening stations, building entry, and exits must be unobstructed to allow for appropriate visual assessment and security response and direct means of communication between the screening personnel and the court available.
There should be different zones of circulation throughout the court station, which must be clearly defined and maintained, and all judicial officers and staff must wear prominently displayed badges with a photo and identifying information. This will prevent unauthorised access to critical rooms such as storage areas that might contain dangerous objects and substances like weapons, electrical supplies, data centres, and cameral access points. Or flammable material to burn it all to ash. The CJ has now made it mandatory for all judicial officers and staff to wear name tags while on the court premises, while other court users will have to provide identification documents to access courts.
The CJ has restricted access to judicial officers’ chambers and has instructed court stations to work with the CUCs and submit any requests to enable this. I hope this will not be another barrier to accessing judicial officers, for instance, for legitimate private consultations. Court stations and CUCs are to make requests for any other necessary security infrastructure gaps for consideration. Maybe the Judiciary will engage a consultant to vet all court stations for any infrastructure gaps and come up with a figure that can then be used for more funding advocacy by stakeholders.
Conclusion
Security incidents and breaches are normal, but the damage can be minimised and mitigated by exercising due diligence and applying best practices. However, any disruption to the functions of the court impedes access to justice. The right to access to justice has never been more exposed now that we are conducting courts virtually and files and pleadings are all filed online. The Judiciary must invest in cyber security as a matter of urgency to mitigate against cyber-attacks that could cripple judicial proceedings in a flash.
However, courts are public spaces, and any measures to mitigate against security risks must guarantee and not unreasonably impede public access to the court. The Constitution protects access to justice and the right to a fair and public hearing.
The author is a litigation counsel at Katiba Institute and a probono advocate at Makadara criminal courts