For me, Kenya is currently one of the most interesting countries to follow if you are interested in rule of law development and justice innovation.
“I had just started my working day when I got a call from my sister. She had been taken to the police station or her way to work. The matatu bus on which she was traveling had been stopped and checked for seat belts. The passengers not wearing them where taken. I rushed to where she was but was too late; she had already been booked. This meant she was on her way to court for a hearing. I took me some time to find out which court and I rushed over there. By that time it was just past noon. We had to wait until four o’clock before the hearing of her case took place. They always do the serious criminal cases first. Seatbelts come later. By the time her case started the judge was tired. It did not feel like a real hearing. Just a quick decision. She told my sister she had to do a few hours of community work. She was given a bucket and a mop and was told to clean courtrooms. Luckily she did not get a fine. That could have been ten thousand shilling, nearly a weeks’ work! Still, costs were high. She lost a day at work. And so did I. If I had just been in time for the police! I could then have paid him five hundred shillings and we could have gone our way again.”
The rising middle class. More and more Africans can call themselves that. The definition is a very basic one: middle class people earn slightly more than what is needed for bare survival. They can spend a little on insurance, education, and maybe even an occasional holiday (literally – day). The person who told me this story would fall under this definition, as does his sister. Urban, slightly better off than the millions in the slums. But still working very hard every day to ensure housing, to nourish their families, keep them healthy, and put their children through school. My friend was happy he had running water two days a week. He also told me that something seatbelty like this could happen to anybody in Kenya. The justice system is generally not seen as something that helps you in life. In fact: you work hard to avoid it. See also my previous column on family justice.
For my friend it was all the fault of the judges. This was not obvious to me at all. I asked him to explain.
“You see,”, he said, “A policeman can decide not to book me when I have inadvertently done something wrong in traffic. I can then thank him. But when you are before a judge you get booked and usually you get some form of punishment. The fines are enormous. Why don’t they change that? The laws are wrong. The judges just punish.”
I pondered the separation of powers. Judges don’t make these laws. But this was too much to bring into the conversation because something else popped up in my mind.
“So how do you thank a policeman?”
“It depends, if they really help you can give them four or five hundred shilling.”
“But that’s corruption! Shouldn’t you blame the policemen instead of the judges?”
“No! I see that differently. If a policeman asks for money and negotiates, it is corruption. But if he does not ask and takes a good decision, like not booking me and just giving me a warning, then I can thank him. That is my decision. If he takes a good decision, then that is OK. You have to thank somebody if they make an effort.”
I repeat: Kenya is probably one of the most interesting places in the world to follow if you are interested in rule of law development and justice innovation. In this mini documentary that was shown on Dutch TV you see Kenyan justice innovation in action. In 2010, the citizens of Kenya adopted one of the most progressive constitutions in the world. It devolves more power away from Nairobi to the regions. It solidly enshrines the separation of powers. It is very progressive on gender equality. It lays the foundation for a citizen oriented, citizen serving justice system. Up to last year, Chief Justice Willy Mutunga and his small team around him led the judicial transformation process. They did many things, from refurbishing and building court buildings, putting in place digital systems, and redesigning the Judicial Training Institute, to enhancing performance, changing cultures, and building a cadre of young judges. But the work was far from done.
This year, Chief Justice David Maraga took over and under his leadership, the transformation continues. It was also under his leadership that the Supreme Court declared the elections in Kenya “null and void” on 1 September, a decision that nobody expected and that is unique in Africa.
Rule of law is being built. Political parties are invoking the law. The Supreme Court sees a breach and elections are declared null and void. All political groupings are respecting the judgement. But also: an opposition leader who initially, before the case was brought to the Supreme Court, said he did not trust the judiciary. The other presidential candidate who, after the judgement, said he’ll ‘fix’ the court when elected. All are using the law and the constitution. Underneath that, we see judges who get blamed by middle class Kenyans for seatbelt situations. Policemen get thanked, without it being considered a serious issue by many citizens. Justice innovators like Sauti that are empowering women entrepreneurs. It’s a complex business, building rule of law. Keep following Kenya, for the next 10- years. In my next column I will be able to write about the outcomes of the nation-wide justice needs and satisfaction survey that was done in Kenya. Note: at the request of the judiciary of Kenya, which wants to keep improving.
Sam Muller is the CEO of HiiL
This blog first appeared on Slaw, Canada’s online legal magazine and is reproduced with permission from the author.
Photo: A sign outside the University of Nairobi (UoN)/FlickrRepublish