International Environmental Law Research Centre KENYA: JUSTICE SECTOR AND THE RULE OF LAW Patricia Kameri Mbote & Migai Akech Published by: Johannesburg: Open Society Initiative for Eastern Africa. This paper can be downloaded in PDF format from IELRC’s website at http://www.ielrc.org/content/a1104.pdf International Environmental Law Research Centre International Environment House Chemin de Balexert 7, 1219 Châtelaine Geneva, Switzerland [email protected] www.ielrc.org 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 vi Acknowledgements vii Preface 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 Transforming a largely unfair criminal justice system 11 5 Enhancing mechanisms for a broader access to justice 15 6 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 Justice and the rule of law ideal: Theory and practice 21 A.The rule of law ideal 22 2 Legal and institutional framework 27 A. Compliance with international (human rights) obligations 27 B. The constitution and international human rights standards 33 C. The structure of the court system 42 D. Law reform 45 E. Recommendations 52 3 Government respect for the rule of law 54 A. The executive and respect for the rule of law 55 B. Parliament and respect for the rule of law 69 C. Recommendations 73 4 Management of the justice system 74 A. Strategic planning 74 B. Financial management 79 C. Court administration 81 D. Access to information about the law and the courts 92 E. Recommendations 97 5 Independence of judges and lawyers 99 A. Judges 99 B. Lawyers 114 C. Recommendations 118 6 Criminal justice 119 A. Protection from crime 119 B. The politics of policing 125 C. The Attorney General and prosecutions 137 D. Non-state action against crime 140 E. Fair trial 142 F. Appropriate remedies and sentencing 144 G. Prisons 150 H. Recommendations 155 7 Access to justice 156 A. Knowledge of rights 156 B. Physical access 157 C. Financial access 158 D. Right to appear: Jurisdictional restrictions 164 E. Reasonable delay 169 F. Mechanisms to assert rights outside the court system 169 G. Traditional and other non-state justice systems 174 H. Recommendations 176 8 The role of development partners 178 A. An overview of development assistance to the justice sector 178 B. Transparency and accountability in development assistance 180 C. The procurement regime of the GJLOS Reform Programme 187 D. Human rights and development assistance 189 E. Recommendations 189 References 190 KENYA: JUSTICE SECTOR AND THE RULE OF LAW v List of boxes Enactment and implementation of the Sexual Offences Act 50 The Grand Regency Hotel scandal 57 The Kisya Investments case 62 Getting information from the judiciary 97 The radical surgery of the judiciary 110 Peter Nganya v. Credit Bank Ltd 166 vi KENYA: JUSTICE SECTOR AND THE RULE OF LAW 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: JUSTICE SECTOR AND THE RULE OF LAW vii 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: • Assesses whether, and the extent to which, Kenya is in compliance with its international human rights obligations, including the extent of incorporation of international human rights standards into national law; • Reviews the historical evolution of the justice sector; • Reviews the practice of constitutionalism and the rule of law in Kenya, with a view to identifying shortcomings and suggesting possible solutions; • Reviews the efficacy, accountability and responsiveness of the administrative/ institutional framework for the administration of justice; • Assesses the adequacy of established frameworks in facilitating the independence, efficacy and accountability of the justice sector; • Assesses the technical capacity of actors in the justice sector; • Reviews the effectiveness, accessibility and accountability of the criminal justice system; • Establishes whether, and the extent to which, Kenyans have access to justice (physical, financial, normative and procedural); • Reviews the role of development partners in the justice sector; and • Suggests policy and legal interventions that would enhance the efficacy, accountability, responsiveness and legitimacy of the justice sector. viii KENYA: JUSTICE SECTOR AND THE 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