Rebuilding Confidence in the Kenya Judiciary: Civic Relation, Public Communication & Accountability of the Judiciary

REBUILDING THE CONFIDENCE IN THE KENYAN JUDICIARY

CIVIC RELATION, PUBLIC COMMUNICATION & ACCOUNTABILITY OF THE JUDICIARY

A paper delivered during the Judges’ Colloquium on the 17^th August 2011 at the Serena Hotel Mombasa by Hon. Mr. Justice Aggrey O. Muchelule.

INTRODUCTION

On August 4, 2010, Kenyans voted in a national referendum in favour of a new constitution, concluding a push for constitutional change that began more than 20 years ago. Constitutionalism and the rule of law are the central features of the political democracy envisaged in that dispensation. One of the imperatives of the Constitution is to insulate the judiciary from undue influence by other actors and restore its legitimacy and, most importantly, public trust.

It must be underscored that an independent judiciary, the essential guardian of the rule of law, is the kingpin of the scheme of checks and balances through which the separation of powers is assured. Otherwise, there is no other guarantee that the other branches of government will respect the rule for law and act within established legal norms, processes, and institutions. The Constitution is thus not merely hortatory but the fundamental and supreme law of the land, the real and living document that guides, defines, and permits all actions by the state. No individual or official of the state is above the law or can act in defiance of constitutional prescriptions. This is what separates democratic states from undemocratic ones. It is the difference between tyranny and freedom.

A Judiciary that upholds the rule of law serves a political function in the state by providing a neutral arbiter of disputes outside the political processes, hence creating an important apolitical arena of state action. The Judiciary protects and enforces legal and human rights, enforces the contracts of laissez faire economy, defines and interprets the law, imposes and releases individual actors of legal responsibility, free from political interference. In all these judicial legitimacy is crucial.

Judicial legitimacy is important for precisely the reasons that the judiciary itself is important. If a judiciary cannot be relied upon to decide cases impartially, according to the law, and not based on external pressures and influences, its role is distorted and public confidence in government is undermined.

This paper is intended to help reflect on problems of public confidence the judiciary is dealing with and to interrogate the role that the civil relation and public communication can play in the effort to achieve the desired judicial accountability and public trust in the institution.

JUDICIAL ACCOUNTABILITY

For decades, the focus was on the demand for increased independence which was perceived as central to strengthening judicial performance. More recently, it has been joined by another element, the demand for greater judicial accountability, with some critics arguing that absent this second factor, the drive for independence may go too far, producing a variety of new problems. This may come as a nasty surprise to the judiciary. Finally having escaped from the control of the executive, legislature, political parties, and nongovernmental elites, the judiciary now finds itself subject to demands for new kinds of responsiveness.

The complaint that independence may lead to its own abuses is of more recent vintage, as is the argument that the judiciary like other branches of government should be subject to a responsibility for its action. As discussed below, accountability should not be understood as the diametric opposite of independence; the interaction of the two concepts is more complex. Five factors feed into this development:

• The explosion of the myth that the judiciary’s role can be limited to the neutral application of the law and the recognition, even in systems where this is theoretically not supposed to happen, that the judiciary has an important place in deciding what the law is and how and where it will be applied.

• The expanding importance of ordinary judicial decisions and of their impact on the lives of citizens. Even, or perhaps especially, in an era of reduced governmental intervention, increases in the type and number of social conflicts and the reliance on law to resolve them give the judiciary greater power.

• The emergence of constitutional democracy with its reliance on courts to control the actions of other branches of government and to decide conflicts among them or between them and citizens.

• Changes in public attitudes toward authority –the judiciary may be the last to feel this, but in democratized societies, publics expect their officials to explain their actions, no longer taking them in faith. Arbitrary decisions whether by executive, legislature, or courts are no longer accepted.

• The growth of the judiciary itself, so that informal systems of internal control and decision-making no longer guarantee predictable and standardized outcomes.

In short, the emphasis on accountability is a consequence of the new weight accorded to the judiciary in an era where the rule of law, rather than arbitrary government intervention, is the means for maintaining social control and where that control is itself threatened by new forms and new dimensions of societal conflict. The overriding logic behind its introduction is that organizations which have to recount and explain their actions will be less likely to err in the first place.

Relationship of Independence and Accountability

In discussions of these concepts, two questions frequently emerge: whether the two elements are inevitably in conflict, or whether they are really not coterminous. The questions, which seem to go in opposite directions, arise from a common tendency to define independence and accountability in terms of relations among branches of government. Indeed if the judiciary is to be both independent of and accountable to the executive and legislature, then there is a certain circularity of argument. However, whereas independence is properly conceived as relating primarily to judicial-governmental relations (and secondarily to judicial relations with other powerful elites), judicial accountability is better understood as referring, as it does in the case of the rest of government, to institutional accounting to political and civil society. Thus, whereas other branches of government are critical in enforcing judicial accountability and in imposing sanctions when the response is unacceptable (as in the legislature invalidating the use of budgetary funds), the underlying question is the extent to which the judiciary answers to and thus serves society as a whole.

Accountability can also be distinguished from independence by the timing of the relationship. Independence focuses on prior control of judicial actions – the extent to which external forces shape decisions which are the judiciary’s to make. Accountability is ex-post control, and refers to the legal requirement that the judiciary relates and explains both its administrative and functional operations and outputs. Obviously, the knowledge that one will have to justify ones actions may indeed exercise an influence on their content. That influence will be conditioned by the criteria used to evaluate the actions treated; making it extremely important that an agreement be reached before the fact as to the relevant standards and that there will be continuing discussion as to their adequacy. Accountability sets theoretical limits to judicial discretion, but these limits are by no means arbitrary. Whereas insufficient independence may pull the judiciary away from acting in accord with the law, accountability requires that it justifiesRAPPORTEURS, SPEAKERS AND MODERATORS (FROM OUTSIDE JUDICIARY

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its actions in terms of legal compliance. Whatever dynamic tension may arise between these two elements, accountability in some sense also strengthens independence. The need to account for its actions may reduce the judiciary’s vulnerability to external pressures.

Although accountability and independence may be directed at the same kinds of judicial actions, the law-relatedness of accountability means that its focus is less on decisional outputs (the crux of independence) than on compliance with procedures. This applies to administrative and operational actions as well as purely jurisdictional ones and to the full array of the latter, not just the decision or two that attract particular attention.

Civil Society’s Relevance to Rebuilding Confidence in the Judiciary

Past judicial programmes, informed and designed by the internal legal culture, have failed to incorporate the needs and experiences of ordinary citizens (consumers of judicial services) in resolving disputes due to supposed need to safeguard judicial independence. In effect judicial ‘independence’ in practice has been confused with judicial ‘isolation’. To achieve independence in fact the judiciary needs to develop its legitimacy in order to build a power base of support.

Difficulties faced by previous legal and judicial programmes may be attributed, in part, to lack of adequate levels of participation and stakeholder ownership. Credible, meaningful participatory processes surrounding judicial reform are crucial for the success of the reform agenda. It has been observed that: “Justice is too important a matter to be left to the judges, or even to the lawyers; the American people must think about, discuss, and contribute to the future of their courts.” Chief Justice William Rehnquist, United States Supreme Court, As quoted in Samuel F. Harahan and Waleed H. Malik, Partnerships for Reform: Civil Society and the Administration of Justice (Washington, D.C.: World Bank, June 2000), p. 1.

Civil society’s participation contributes to judicial reforms on a number of levels. These include help monitor judicial performance and expose corruption. A unifying theme cuts across these and other reasons for civil society involvement: It builds counterweights to those forces that undermine judicial reforms. It thus advances impartiality by exposing judges to legitimate pressure, persuasion and perspectives. Even with the best intentions on the part of its leaders, a judiciary often cannot be a wholly self-reforming body.

The fundamental problem is that agencies in the justice sector have no forum to address common or individual concerns to the satisfaction of each other or the public. The approach has been ad hoc and reactive which mechanism cannot be feasible in the face of the current milieu. It is suggested that there is great need to create, develop and operationalise systematic, comprehensive, active and long term responses to the challenges and opportunities facing the Judicial system and one such mechanism is the establishment of Court Users Committees. Although it is true that Court Users Committees have existed and do exist in certain courts. They exist however not because there is a formal, organized and structured system in place but because Judicial Officers on their own and reactive to challenges around them have deemed it fit to bring other agencies into dialogue.

It has been argued above that the best way to improve overall standard of administration of justice would be by getting all the actors engaging in constructive dialogue and in a structured manner. A forum to bring them together would provide an opportunity to regularly meet and discuss efficient and effective systems of delivery of justice and find lasting practicable solutions to the numerous problems encountered by all of them. Together with other court users and the Judiciary a chain would be formed and each of them would be a strong link in their chain because without those linkages, a chain would only be strong as its weakest link.

From what has been articulated above, the judiciary has the central role of being the institution to co-ordinate the entire programme because it is at the courts that all the agencies congregate and it is the courts that have the Constitutional mandate to ensure that the citizen is under the secure protection of the law. Without the courts taking that role, the other agencies have no meeting point capable of securing that protection.

Using Public Communication to Build Public Trust

The Preamble to the Bangalore Principles of Judicial Conduct provides that: ‘public confidence in the judicial system and in the moral authority and integrity of the judiciary is of utmost importance in a modern democratic society’. Principle 1.6 describes public confidence in the judiciary as: ‘fundamental to the maintenance of judicial independence’.

The Judiciary’s Strategic Plan 2009-2012 is anchored on Vision 2030 and seeks to deliver quality justice to the people of Kenya. In its vision it seeks to be:- “the best judiciary in Africa, setting the highest standard in the delivery of high quality justice and leading in the development of jurisprudence.”

Its mission is to:- “Provide an independent, accessible, responsive forum for the just resolution of disputes in order to preserve the rule of law and to protect all rights and liberties guaranteed by the constitution of Kenya.”

Improving the image of the judiciary in order to restore public confidence in the institution is one of the strategic objectives of the plan. Public perceptions of what courts actually do directly relate to the judiciary’s legitimacy.

It is generally perceived that judges and magistrates are either out of touch or out of sympathy with the concerns of their fellow citizens. What the judiciary should learn from this perception is that the more information people are given about what the judges and magistrates are doing, and why they are doing it, the less likely they are to believe that there is a gulf between their expectations of the judicial system and the reality. The more accurate and reliable the information the public get about the judges and magistrates do, and about their reasons for decisions, the less likely they are to think that judges and magistrates do not understand or share their concerns. This means that Judiciary should develop an effective communication system to be able to narrow or remove the information gap between it and the public.

If the public’s faith in the judicial system is to be restored, there is therefore a need to improve the performance of the judiciary across a broad range of areas that are crucial for public accountability and user satisfaction. It is important for the judiciary to establish an effective communication strategy with the public. The Task Force on Judicial Reforms, July 2010 highlights that many court users do not understand the operations and procedures of the judiciary and as a result are unable or unwilling to access its services. Additionally, the Task Force has noted that the judiciary has not been proactive in engaging stakeholders to explain either the challenges that it is facing or the initiatives that it is undertaking in order to deliver a better service to the people.

Similarly, the Public Complaints Standing Committee has recognised that, ‘it is a matter of concern that the reform efforts in the judiciary are not yet wide and deep enough to register in the public’s mind as indicated by its continued unflattering perception of the Judiciary as an institution.” Public Complaints Standing Committee, Third Quarterly Report for the Year 2008/2009 covering period 1 January 2009 to 31 March 2009, p. x1.

Although not sufficient on its own, a timely and effective public communication and outreach strategy is a necessary and important step towards building the image and credibility of the judiciary as a provider of justice for all. There have been certain steps undertaken in this direction. Annual Judiciary Open days, providing members of the public with an opportunity to engage directly with judges, have been held since 2007. Established with the aim of educating the public on judicial processes, the Open days have however descended into sessions for the public airing of private grievances. More constructive has been the establishment of Court Users’ Committees. These appear to function well as an avenue for the public to receive information on the courts and to offer suggestions on the improvement of the performance of the judiciary in its delivery of justice. The publication of a Litigant’s Charter in October 2007 has also helped to disseminate information about the court, its processes and the methods of accessing it, in a simple language understandable to its users. Nevertheless, there remains considerable scope for more to be done.

Public confidence will only take hold through public access to credible information and constituencies demanding accountability and supporting reforms. Transparency and creation of information density is thus a top priority in the effort to create an enabling environment for public trust. Of all the so called integral elements of judicial independence and accountability, improving informational density about individual and collective legal rights and the institutional performance of the judiciary is perhaps the most essential contributor to an enabling environment in which reform can take place. It is the first step.

Institutional accountability is a critical component of legal reform. Institutions, however, do not reform themselves. Without wide public access to information, accountability will not take root and constituencies cannot properly arm themselves to demand reform. Creating an enabling environment for reform through a set of activities designed to improve information density about laws, legal and administrative institutions, and avenues of citizen redress is a sound investment. Strategies should include creative use of law reform, the media, and new technologies to promote public access to information on the judiciary and related institutions. More specific examples include: publication of research on judicial performance, budget and expenditure; publication of decisions; and publication of an annual “State of the Judiciary” report.

In order to further demystify the judiciary, consideration should be given to the following:

• A Communications Department within the judiciary should be established with a mandate to create awareness and handles all the communication needs of the judiciary.

• Public education and information material containing written information on the services offered by the judiciary and the procedures for accessing them should be printed and distributed to members of the public.

• The judiciary should embrace the use of other communications media such as newspapers, radio and the internet. In particular, the judiciary should use radio broadcasts and other non-written media in order to facilitate increased access to justice for those who are illiterate.

• Court public relations officers should be deployed within court buildings in order to provide litigants and members of the public who attend court proceedings with information on court procedures and processes and also directional information.

Role of the media in Rebuilding Public Trust in the Judiciary

The media can play both a constructive and destructive role in the effort to improve public trust in the judicial process. Legitimate public criticism of judicial performance by the press is essential to ensure judicial accountability. At the same time, the media can contribute to an erosion of public confidence by perpetuating stereotypes of an ineffectual judiciary. The role of the media can be positively enhanced by ensuring they are properly trained in coverage of legal matters and sensitized to the importance of judicial independence.

The set back to this desired engagement is an emerging trend of what we could call ‘orchestrated public criticism’. This is deliberate action by the media to instigate criticism of judges in particular cases, or the courts in general. Although this practice is observable and it is surely unpleasant for the judges and magistrates involved, there would seem little that anyone could reasonably do in an open and democratic society to stop this kind of behaviour. Indeed, it would seem inappropriate to do so. The best a court can do is to ensure that law reports are available to the public and maybe it is worth exploring whether issuing press releases that explain the reasoning in particular cases can be an option to clarify misreporting.

As stipulated by the The Commonwealth (Latimer House) Principles on the Accountability of and the Relationship between the Three Branches of Government, criminal law and contempt proceedings should not be used to restrict legitimate criticism of the performance of judicial function, such proceedings should only be employed to guard against interference with judicial independence as a means of upholding the rule of law.

Conclusion

Greater transparency is critical for securing judicial legitimacy. Moreover, transparency fosters greater public confidence in the judiciary, setting up a virtuous circle of positive reinforcement. As transparent procedures are built in, effective monitoring becomes more feasible, compounding the impact of the ‘substantive’ reforms. It is much easier to monitor a court system that has structured, transparent practices than one that is either intentionally opaque or merely disorganized and chaotic. The statistics generated by good case tracking and information systems not only allow courts to better manage their operations, but they also enable outside watchdogs to observe trends and identify questionable aberrations. When supporting the establishment of these systems, it is important to help courts develop the confidence to allow public access to as much information as possible. Thus external monitoring of courts can be a powerful tool for enhancing the public confidence in the judicial processes.