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KenyaJustice Sector and the Rule of LawPatricia Kameri Mbote and Migai AkechA review by AfriMAPand theOpen Society Initiative for Eastern AfricaMarch 20112011 Open Society FoundationsThis publication is available as a pdf on the Open Society Foundations website or the AfriMAP website under a Creativ...

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Kenya

Justice Sector and the Rule of Law

Patricia Kameri Mbote and Migai Akech

A review by AfriMAP and the Open Society Initiative for Eastern Africa

March 2011

2011 Open Society Foundations This publication is available as a pdf on the Open Society Foundations website or the AfriMAP website under a Creative Commons licence that allows copying and distributing the publication, only in its entirety, as long as it is attributed to the Open Society Foundations and used for noncommercial educational or public policy purposes. Photographs may not be used separately from the publication. Published by: The Open Society Initiative for Eastern Africa ISBN: 978-1-920489-18-2 For further information, please contact: AfriMAP PO Box 678 Wits, 2050 Johannesburg South Africa www.afrimap.org [email protected] Open Society Initiative for Eastern Africa PO Box 2193 00202, Nairobi Kenya www.osiea.org Design and lay-out by COMPRESS.dsl | www.compressdsl.com

Contents List of boxes Acknowledgements Preface

vi vii viii

Part I Kenya Justice Sector and the Rule of Law Discussion Paper

1

Introduction

3

1

Consolidating the legal and institutional framework to advance rule of law principles

5

2

Promoting mechanisms that guarantee greater independence of judges

7

3

Breaking a long tradition of government disrespect for the rule of law

9

4 5 6

Transforming a largely unfair criminal justice system

11

Enhancing mechanisms for a broader access to justice

15

Ensuring national accountability of external funding in the justice sector

16

7

Conclusion

18

Part II Kenya Justice Sector and the Rule of Law Main Report

19

1

21

Justice and the rule of law ideal: Theory and practice A.The rule of law ideal

2

Legal and institutional framework A. Compliance with international (human rights) obligations B. The constitution and international human rights standards C. The structure of the court system D. Law reform E. Recommendations

3

Government respect for the rule of law A. The executive and respect for the rule of law B. Parliament and respect for the rule of law C. Recommendations

4

5

27 27 33 42 45 52

54 55 69 73

Management of the justice system

74

A. Strategic planning B. Financial management C. Court administration D. Access to information about the law and the courts E. Recommendations

74 79 81 92 97

Independence of judges and lawyers A. Judges B. Lawyers C. Recommendations

6

22

Criminal justice A. Protection from crime B. The politics of policing C. The Attorney General and prosecutions D. Non-state action against crime E. Fair trial F. Appropriate remedies and sentencing G. Prisons H. Recommendations

99 99 114 118

119 119 125 137 140 142 144 150 155

7

Access to justice

156

A. Knowledge of rights B. Physical access C. Financial access D. Right to appear: Jurisdictional restrictions E. Reasonable delay F. Mechanisms to assert rights outside the court system G. Traditional and other non-state justice systems H. Recommendations

8

The role of development partners

156 157 158 164 169 169 174 176

178

A. An overview of development assistance to the justice sector B. Transparency and accountability in development assistance C. The procurement regime of the GJLOS Reform Programme D. Human rights and development assistance E. Recommendations

178 180 187 189 189

References

190

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

v

List of boxes Enactment and implementation of the Sexual Offences Act The Grand Regency Hotel scandal The Kisya Investments case Getting information from the judiciary The radical surgery of the judiciary Peter Nganya v. Credit Bank Ltd

vi

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

50 57 62 97 110 166

Acknowledgements The preparation and completion of this report has been made possible by the collaborative efforts of a number of people and organisations to whom we owe our most sincere gratitude. Firstly, we would like to thank a number of researchers who assisted in putting together different parts of the report: Sarah Kinyanjui for her immense contribution to the criminal justice chapter; Kamau Mubuu for his great job in the preparation of the research instruments and in the the analysis of the survey data; Steadman (now Synovate) for assistance with the administration of the survey questionnaire; Nkatha Kabira, Evelyne Asaala and Wilson Kamande for their research assistance at different stages in the preparation of the research report; and Pauline Nyamweya and Kithure Kindiki for theirparticipation in the initialstages of the research. Secondly, we would like to thank the judiciary, particularly the Honourable Chief Justice Evans Gicheru, forallowing us to engage with judicial officers in the execution of the project. The High Court Registrar, Lydia Achode, also deserves our gratitude for her assistance in linking us with the judiciary and facilitating our meetings with judicial officers. Thirdly, the staff of the Open Society Initiative for Eastern Africa (OSIEA) and the broader Open Society Initiative family for engaging with us in intense discussions on the project, their general support and superb logistical arrangements throughout the preparation of the report. Mugambi Kiai, Binaifer Nowrojee, Pascale Kambale, Ozias Tungwarara, Juliana Osodo and Mary Gathegu deserve special mention here. Fourthly, we are also indebted to OSIEA for providing the financial resources necessary to carry out this research. Finally, and not least importantly, for their generous sharing, we are grateful to all the representatives we interviewed from Kenya’s development partners, civil society organisations, the judiciary, prisons and police. We also thank those who attended the validation workshops for their comments which greatly enriched the report.

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

v ii

Preface This report assesses Kenya’s justice sector with a view to pointing out ways in which it promotes the attainment of the rule of law ideal. It is carried out in the context of growing interest in issues of good governance, democracy, human rights and the rule of law in African countries and has been prepared for the Open Society Initiative for Eastern Africa (OSIEA) and the Open Society Foundations’ Africa Governance Monitoring and Advocacy Project (AfriMAP). Established in 2004 by the African foundations of the Open Society Foundations, AfriMAP has been monitoring the compliance of African states with the new commitments undertaken by the African Union since 2000 in the field of good governance, democracy, human rights and the rule of law. The report evaluates Kenya’s respect for international standards in relation to the justice sector and the rule of law. The overall objective of the report is to assess the efficacy, accountability, responsiveness and legitimacy of the justice sector in Kenya and suggest policy and legislative interventions. In particular, the report: human rights obligations, including the extent of incorporation of international human rights standards into national law;

identifying shortcomings and suggesting possible solutions; institutional framework for the administration of justice; efficacy and accountability of the justice sector;

financial, normative and procedural);

responsiveness and legitimacy of the justice sector.

viii

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

The report proceeds from the premise that the attainment of the rule of law in Kenya is integral to the realisation of Vision 2030, a policy blueprint which was launched in June 2008. This policy spells out Kenya’s development aspirations in the next 20 years and specifically seeks to transform the country from a developing to a medium-income economy by the year 2030. The second pillar of this vision, the social pillar, seeks to create and build a just, cohesive society, with equitable social development, in a clean and secure environment. The political pillar also has implications for the realisation of the rule of law by aiming for ‘a democratic political system that nurtures issue-based politics, the rule of law, and … all the rights and freedoms of every individual in society’. The justice sector in Kenya has been going through major changes. The different arms of the sector have been the subject of intense interrogation and there are concrete proposals for reform of the legal and institutional framework supporting the rule of law, the justice system, the executive, the legislature, the criminal justice system and the Bar. Most notably, this research was carried out at a time when the confidence in these institutions had ebbed and after the disputed presidential poll in 2007 in which, according to the Commission of Inquriy into the Post-Election Violence (October 2008), an estimated 1 300 people were killed and 350 000 displaced. There were also gross human rights violations including physical and sexual molestation, rape and restrictions on the freedoms of movement during the two months of sporadic but violent interethnic fighting pitting the Party of National Unity (PNU) and the Orange Democratic Movement (ODM) supporters against each other. The violence ended with the signing of the Agreement on the Principles of Partnership of the Coalition Government by Mwai Kibaki and Raila Odinga on 28 February 2008. This led to the establishment of a coalition government whereby Odinga of the ODM became prime minister as Kibaki of the PNU retained the presidency. The agreement comprised of four agenda items: 1. Stop the violence and restore fundamental rights and liberties. 2. Address the humanitarian crisis occasioned by the massive displacement by resettling internally displaced people (IDPs) and promoting reconciliation and healing. 3. Overcome the political crisis. 4. Address and find solutions to the long-standing issues including constitutional, legal and institutional reform; land reform; poverty, inequity and regional imbalances; unemployment, particularly among the youth; consolidating national cohesion; and bringing about transparency, accountability and acting against impunity. These issues, especially the implementation of point 4, are critical to the realisation of the rule of law in Kenya.

Methodology This study was carried out using a variety of methods. The authors used both primary and secondary data. Secondary data was used to assess the status of the legal and judicial sector. The authors reviewed statutory law, case law, the reports of various studies on the legal and justice sector and the reports of commissions established over the years to review different aspects of

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

ix

the sector. They also took into account on-going reform initiatives in the legal and judicial sector. Most notable were the reforms being carried out under the aegis of the governance, justice, law and order sector (GJLOS). Beyond secondary data, primary data was sought through various means: magistrates; employees of human rights bodies including non-governmental organisations; Kenya National Commission on Human Rights and non-governmental organisations; police officers; law reform officials; and other actors in the legal sector such as legal scholars, lawyers’ staff of the National Council for law reporting, and police officers. The judges and magistrates interviewed were from different stations. National Survey carried out in December 2008. The main objective of the survey for this study’s purpose was to tease out Kenyans’ opinions and views on core aspects pertaining to the rule of law, access to justice and the security situation in the country. 2007 respondents participated in this survey drawn from all Kenyan provinces, social classes, cultural groupings and occupations. Most importantly, consideration for age and gender variables was given. The majority of respondents in the Steadman Survey were drawn from the Rift Valley (24%), followed by Nyanza and Eastern with 15% each. Another 13% and 12% of the respondents were drawn from the Central and Western Provinces respectively, while 3% hailed from the NorthEastern Province (see Table 1).

Table 1: Distribution of respondents by province Province

No. of respondents

Percentage (%)

Nairobi Central

161 256

8 13

Coast Eastern Nyanza Rift Valley

179 310 310 483

9 15 15 24

241 68 2007

12 3 100

Western North-Eastern Total

In terms of age distribution of respondents, the majority of them were in the 15–17 and 18–24 year-old categories with a combined score of 70% while the rest, up to the age of 44, comprised 30% of the respondents. There were no respondents older than 44 (see Table 2).

x

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

Table 2: Distribution of respondents by age Age bracket of respondents 15–17 yrs 18–24 yrs

No. of respondents 574 823

Percentage (%) 29 41

351 259 2007

18 13 100.0

25–34 yrs 35–44 yrs Total

Regarding religion, the overwhelming majority of respondents were Christians, accounting for over 90% of the survey sample. These respondents belonged to various denominations, but largely included Catholic and Protestant. Muslims and other religions comprised 7.1% and 2.1% of the sample respectively.

Table 3: Distribution of respondents by religion Religion Christian Muslim Other Total

No. of respondents 1823

Percentage (%) 90.8

140 43 2007

7.1 2.1 100.0

The majority (52%) of the survey respondents were married, 38% were single while 6% and 3% were separated and cohabiting respectively. Only a mere 1% did not respond to the question. The majority of those interviewed in this study were women accounting for 51% while men accounted for 49%.

Table 4: Distribution of respondents by gender Gender of respondents Men Women Total

No. of respondents 984 1023 2007

Percentage (%) 51 49 100.0

According to data elicited in this survey, the overwhelming majority of respondents had at least attained some basic formal education. A very small category of those without formal education accounted for only 0.6% of the sample. The majority of those who had attained formal education had completed at least secondary education (35.2%). Those who had completed primary education comprised 15.9% of the sample while those with some primary and some secondary education accounted for 7.8% and 10.9% respectively. Those with post-secondary education accounted for 27.4%. Among the latter, 19.2% had a tertiary education while 8.2% had received university education (see Table 5).

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

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Table 5: Distribution of respondents by highest level of education Respondents’ level of education

No. of respondents

Percentage (%)

No formal education Some primary education Completed primary education

44 157 320

2.2 7.8 15.9

Some secondary education Completed secondary education Tertiary college education

219 706 385

10.9 35.2 19.2

165 11 2007

8.2 0.6 100.0

University education RTA Total

The results of the survey and the interviews were triangulated with the secondary data to bring out a holistic view of the legal and judicial sector.

Summary of findings The study’s main findings are that: This progress is evidenced by a more robust human rights’ enjoyment context, the establishment of the Kenya National Human Rights and Equality Commission, the establishment of the National Commission on Gender and Development and the revamping of the Law Reform Commission, among others. Commission and of a Truth, Justice and Reconciliation Commission also illustrate a commitment to realise the rule of law. Kenya has made significant efforts to make the judiciary a true guardian of the rule of law, as evidenced by the 2010 Report of the Task Force on Judicial Reforms and the new constitution, which now needs to be implemented urgently and sustained, with a view to establishing an autonomous and accountable judiciary. There is a need to enhance and sustain the accountability of the executive and the legislature to the people of Kenya, as the new constitution demands. to justice by, for example, using traditional dispute resolution mechanisms as required by the new constitution. There is a need for a programme that addresses justice sector reforms in view of the provisions of the new constitution, and the proposals of task forces and commissions established to inquire into the activities of justice sector institutions such as the judiciary and the police. We hope that the proposals of this report will inform the establishment and provide terms of reference for such a sector-wide programme. Binaifer Nowrojee Executive Director Open Society Initiative for Eastern Africa xii

KENYA: JUST ICE SECT OR AND T HE RULE OF LAW

Part I Kenya Justice Sector and the Rule of Law Discussion Paper

Introduction The justice sector in Kenya has been the subject of major reform efforts in recent years. The different arms of the sector have been the subject of intense discussion and there are concrete proposals for reform of the legal and institutional framework undergirding the rule of law, the justice system, the executive, the legislature, the criminal justice system and the Bar. Some of the reform measures have resulted in positive changes in the implementation of the rule of law in Kenya since the installation of a new government with a reforming agenda in 2003. This is evident in, among other measures, the establishment of the Kenya National Commission on Human Rights and the National Commission on Gender and Development, as well as the revamping of the Law Reform Commission. Yet the National Rainbow Coalition (NARC) government under President Mwai Kibaki soon fell away from its reforming commitments, and by the end of its first term many promises for change had not been implemented. The 2007–2008 post-election crisis in Kenya gave the law reform agenda a significant impetus. The traumatic events witnessed during the crisis demonstrated a real need for the evaluation and overhaul of fundamental institutions of governance. Above all, the inability of the system to resolve the electoral disputes through a legal process re-emphasised the need to transform Kenya’s justice system and make it genuinely independent of political interference. Two commissions of inquiry with international representation – on the post-election violence and on the election management system itself – highlighted issues of the rule of law and impunity for abuses in their recommendations. The reinstated government of President Kibaki realised, despite – or because of – its weak and contested mandate, that it must become more serious about implementing the initial reforming agenda with which it had entered office in 2003. Above all, the post-election crisis forced the government to return to its commitment to complete Kenya’s long-standing quest for a new constitution. Th...