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Final Report of the Task Force on Judicial Reforms Chairman: the Hon REPUBLIC OF KENYA Final Report of the Task Force on Judicial Reforms Chairman: www.kenyalaw.org The Hon. Mr. Justice William Ouko Presented to: The Hon. Mr. Justice J. E. Gicheru, E.G.H., Hon. Mutula Kilonzo, E.G.H., E.B.S., S.C., Chief Justice of the Republic of Kenya M.P., Minister for Justice, National Cohesion and Constitutional Affairs Hon. S. Amos Wako, E.G.H., E.B.S., F.C.I. Arb, S.C., M.P., Attorney-General of the Republic of Kenya July, 2010 PRINTED BY THE GOVERNMENT PRINTER, NAIROBI www.kenyalaw.org Final Report of the Task Force on Judicial Reforms www.kenyalaw.org www.kenyalaw.org The Hon. Mr. Justice J. E. Hon. Mutula Kilonzo, E.G.H., Gicheru, E.G.H., E.B.S., S.C., M.P., Chief Justice of the Republic of Minister for Justice, National Kenya Cohesion & Constitutional P.O. Box 30041-00100 Affairs NAIROBI P.O. Box 56057-00200 City Square NAIROBI Hon. S. Amos Wako, E.G.H., E.B.S., F.C.I.Arb, S.C., M.P., Attorney- General State Law Office P.O. Box 40112-00100 NAIROBI Dear Sirs, LETTER OF TRANSMITTAL The Task Force on Judicial Reforms was appointed by the Government on 29th May 2009 with the following terms of reference: www.kenyalaw.org 1. To consider and recommend the expansion, functions and independence of the Judicial Service Commission. 2. To consider and advise on a competitive process for the recruitment of Judges. 3. To consider and advise on the short and long term measures for addressing the backlog of cases. 4. To consider and advise on the financial autonomy and accountability of the Judiciary. 5. To consider the nature and necessity or otherwise of Regulations under section 68 (3) of the Constitution of Kenya. 6. To review and finalize the Judicial Service Bill. 7. To consider and advise on ways of dealing with corruption or perceived corruption in the Judiciary. iii 8. To consider any other measures or proposals that are necessary to strengthen and enhance the performance of the Judiciary in the short and long term. 9. To consider and advise on how and when the proposed reforms should be carried out. The Task Force submitted its initial Report on 10th August 2009. However, following a meeting of the Cabinet Committee on Finance, Administration and Planning held on 13th October 2009, it was resolved that the membership of the Task Force be enlarged. Consequently, the membership of the Task Force was expanded, with the mandate to: 1. Examine and consider the initial Report and its recommendations against the provisions and proposals in the Proposed Constitution of Kenya; and 2. Consider any other measures or proposals necessary to strengthen and enhance the performance of the Judiciary. The Task Force has considered and made recommendations in respect of each area falling within its mandate. Further, the Task Force has proposed a framework to oversee the implementation of the recommendations in this Report. www.kenyalaw.org We express our gratitude for the honour, privilege and trust bestowed upon us to serve in the Task Force, and for the guidance and advice received from you in the course of our work. It is with great honour that we submit this Report. The Hon. Mr. Justice William Ouko …………………………………… Chairman Mr. Okong’o Omogeni ……………………………… Co-Chairman iv The Hon. Mr. Justice Isaac Lenaola …………………………………. Member Amb. Amina C. Mohamed …………………………………. Member Mr. Wilfred Nderitu ……………………………… Member Mr. Kathurima M’Inoti www.kenyalaw.org ..………………………. Member Ms. Florence Simbiri-Jaoko ………………………………. Member Ms. Muthoni Kimani …………………………. Member v Mr. Gichira Kibara ……………………… Member Ms. Grace Maingi-Kimani ……………………………… Member Mr. Patrick Ochwa ……………………………… Member Hon. Justin B. Muturi ……………………………… www.kenyalaw.org Member Ms. Rebecca Miano ……………………………… Member Ms. Judith Sijeny ……………………………… Member vi Mrs. Lydia Achode ……………………………. Joint Secretary Mr. Apollo Mboya …………………………... Joint Secretary Mr. Dan Juma …………………………. Joint Secretary www.kenyalaw.org vii www.kenyalaw.org TABLE OF CONTENTS EXECUTIVE SUMMARY Overview ................................................................................... xxi Summary of Recommendations ................................................ xxiii CHAPTER ONE INTRODUCTION 1.1 Overview ........................................................................ 1 1.2 Socio-Political and Cultural Context .............................. 2 1.3 Establishment and Composition of the Task Force ........ 4 1.4 Terms of Reference of the Task Force ........................... 7 1.5 Method of Work of the Task Force ................................ 8 CHAPTER TWO THE JUDICIAL SERVICE COMMISSION 2.1 Overview ........................................................................ 13 2.2 Composition ................................................................... 14 2.3 Functions ........................................................................ 16 www.kenyalaw.org 2.4 Independence .................................................................. 18 2.5 Accountability ................................................................ 21 CHAPTER THREE APPOINTMENT, DISCIPLINE AND REMOVAL OF JUDGES, OTHER JUDICIAL OFFICERS AND STAFF 3.1 Overview ....................................................................... 23 3.2 Qualification for Appointment of Judges ....................... 24 3.3 Procedure for Appointment of Judges ........................... 26 3.4 Discipline and Removal of Judges ................................ 28 3.5 Appointment, Discipline and Removal of other Judicial Officers and Staff .............................................. 30 ix CHAPTER FOUR CASE BACKLOG AND MANAGEMENT 4.1 Overview ..................................................................... 33 4.2 Shortage of Judicial Officers and Staff ....................... 33 4.3 Commissioners of Assize ........................................... 38 4.4 Specialisation by Judicial Officers ............................. 40 4.5 Assessors ..................................................................... 41 4.6 Criminal Appeals in the High Court ........................... 41 4.7 Plea Agreement Negotiations (Plea Bargaining) ........ 42 4.8 Rules of Procedure ...................................................... 43 4.9 Case Management ....................................................... 45 4.10 Allocation of Cases ..................................................... 48 4.11 Traffic Cases ............................................................... 49 4.12 Election Petitions ........................................................ 51 4.13 Anti-corruption Courts................................................ 52 4.14 Reference to the Chief Justice .................................... 53 4.15 Alternative Dispute Resolution .................................. 54 www.kenyalaw.org 4.16 Small Claims Courts ................................................... 55 4.17 Courts of Petty Sessions ............................................. 55 4.18 Research Assistants .................................................... 56 4.19 Debt (Summary Recovery) Act .................................. 57 4.20 24 Hour Duty Courts .................................................. 57 4.21 Court Vacation ............................................................ 58 4.22 Implementation of ICT in the Judiciary ..................... 59 CHAPTER FIVE COURT ADMINISTRATION 5.1 Overview ........................................................................ 61 5.2 The Role of the Chief Justice and other Judicial Officers................................................................................. 61 5.3 Court Administrative Structure ...................................... 63 x CHAPTER SIX PERFORMANCE MANAGEMENT 6.1 Overview ........................................................................ 65 6.2 Performance Evaluation ................................................. 66 6.3 Performance Appraisal ................................................... 67 6.4 Judicial Training ............................................................ 70 CHAPTER SEVEN CORRUPTION, ETHICS AND INTEGRITY IN THE JUDICIARY 7.1 Overview ........................................................................ 73 7.2 Corruption in the Judiciary ............................................. 74 7.3 Ethics and Integrity ........................................................ 79 7.4 Peer Review .................................................................... 80 7.5 Vetting of Judges and Magistrates ................................. 81 7.6 Policy Against Sexual Harassment................................. 82 CHAPTER EIGHT HUMAN RIGHTS AND ACCESS TO JUSTICE 8.1 Overview ........................................................................ 85 www.kenyalaw.org 8.2 Access to the Courts ....................................................... 86 8.3 Legal Aid ........................................................................ 88 8.4 Bail Policy ..................................................................... 90 8.5 Quasi-Judicial Tribunals ................................................. 90 8.6 Sentencing Policy ........................................................... 93 8.7 Human Rights and the Administration of Justice ........... 94 8.8 Contempt of Court and the Administration of Justice.... 95 CHAPTER NINE ACCESS TO INFORMATION AND COMMUNICATION 9.1 Overview ....................................................................... 97 9.2 Access to Information .................................................... 97 9.3 Communication .............................................................
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