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Justice, Democracy and the Rule of Law seminar Brussels 18th June 2013

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1 Justice, Democracy and the Rule of Law seminar Brussels 18th June 2013
The Judiciary Transformation Framework post-Constitution 2010 Kenya Justice, Democracy and the Rule of Law seminar Brussels 18th June 2013 1

2 1. Backrgound The Judiciary since the colonial Kenyan State in 1895 to date, was rating very poorly with the public opinion, perceived as purposely designed to serve the interest of the government of the day! Constitution 2010 lays foundation for the transformation not only the Judiciary but the whole Governance system in Kenya; generally aknowledged by many observers as one of the most progressive Constitutions in Africa; Art.159 established the Judiciary as an independent authority, one Arm of the Government, that "shall not be subject to the control or direction of any authority". In line with the learning processes recommended by the horizontal evaluation, AidCo.E4 undertook a capitalisation study of 9th EDF NSA capacity building programmes; 40 programmes (among which 16 analysed in depth) + 8 field missions. Seminar in Brussels. An interesting innovation. Participation not only of EC Del. Colleagues, but also of TA. Major capacity-building programmes: innovative (no previous experience on which to build), break with previous EC practice; transition from support to NGO – and not NSAs at that time – exclusively through thematic programmestowards geographic programmes, leading to a lack of understanding and/or resistance and doubts. Are support to CS and geographic programmes (meaning agreement of the State on main orientations of the programme) compatible? three main challenges: strategic identification of actors, the institutional and management set-up, the comprehensive provision of capacity building so as to have a structured impact on the strengthening of civil society move from a “project” to “a” process approach. monitoring and evaluation: also a key challenge, but a highly complex issue, not enough time to address it in this arena. Knowledge and experience still need to be developed.

3 But more interestingly, the Judiciary along the new Cabinet, of which all the Ministers went last month through a public vetting by the Parliament, and all new Constitutional Commissions and Public Authorities have to go through public vetting, which includes scrutiny from the Anti-Corruption Commission, Police and Intelligence Service records; In the case of the Judiciary, the Chief Justice-CJ, his deputy, the Chief Registrar and all Judges and Magistrates went through an extensive vetting exercice by a Board composed of eminent personalities, national and international law experts; as a result many judges went packing but few challenged the Board ruling! The whole Justice chain is supervised by the National Council for Administration of Justice, chaired by CJ, composed of the Police, Prisons, Judiciary, DPP, witness protection, and with LSK and CSO represented.

4 2. Transformation Framework
It has 4 pillars: 1. People/User-Focussed Delivery of Justice Provide equitable access to justice, through building new courts, improving their functional access (nbre/usage of special courts & small claims courts, use ICT tools etc); Promote and facilitate ADR, and facilitate the use of legal aid by opening the space also to NSAs providing it; Simplify court procedures is here key as many judicial officers in different courts apply different procedures for lack of knowledge! Concept of Court Users Committees at local/station level to be operationalized: led by local Principal magistrate/now chaired by new Governors, with local police chief, local prison head, CSO acting to improve justice delivery at station level. Objectives of 9th EDF programmes: either focused on the life of the organisations (i.e. institutional and technical capacity building) and not on their role (governance/development actors vs service delivery contractors); Themes: a limited number of programmes focused on questions of national dialogue (improvement of dialogue with the State and participation in implementation and monitoring of public policies) as well as on questions of local governance, democracy and human rights. Decentralisation: as also mentioned in the reference document on decentralisation, one observes a growing amount of experimentation with new forms of citizen-state engagement at local level. Trends towards participative approaches at local level, which facilitate citizen participation and ensures downward accountability (participatory planning and budgeting of the local development plans, demand for transparency in the management of local public finances, social audits, etc.) Participation in national/sector reforms: question of ownership and participation in country ownership processes. Combination of traditional roles (service delivery) with new roles such as the representation of the interests of specific groups regarding national/sector reforms and monitoring of State performance. This new trends have to be addressed !

5 2. Transformation of leadership, professional staff
Conduct corruption mapping exercice, revise the Judiciary Code of Ethics and Conduct, perform leadership and management audit, establish appropriate organizational structure; establish an Integrated Performance Management and Accountability System (IPMAS); Develop new HR Strategy and recruitement policies including remuneration and reward mechanisms; Develop strong training curricula, and boost the Judicial Training institute as the Judiciary's think tank,

6 3. Adequate Infrastructure and sufficient ressourcing
First they went through an Infrastructure Needs Assessment and then developed an Overall master plan; Then, they went to create Model Courts (prototype), and subsequently they started refurbishing and renovating existing courts; they'll build also new Courts (critically needed); They identified the need to strengthen planning, budgeting, procurement and develop an Asset management system; CRITICAL NEED: to boost their capacity to negotiate the share of National Budget at the beginning of MTEF, defend and justify the ressource estimates in Parliament!

7 4. Boost ICT in the Judiciary
The judiciary thanks to the active involvment of the CR has enabled a culture of ICTs in the delivery of Justice, there has been already a massive investment in technology with the main aim to ease the huge backlog in Courts; Equally important, they believe in the need to communicate better with the public, in order to vulgarise the Judiciary functions but as well to redeem the credibility of this long disregarded institution in Kenya!

8 3. One year down the line… Delays in starting the JTF that made it actually kick-off in September 2012; Case backlogs and delays have been one of the main accusations against Judiciary in the past: over the last year the administrative and judicial processes have been initiated to conclude cases that have been pending in the system for years, a working figure says that 1,685 cases are now concluded every working day!

9 Crictically, during the Elections preparations period, cases that came to great public interest, such as the determination of the cases raised under the Electoral and Administrative Boundaries process were fast-tracked by the judiciary; The Supreme Court was launched and delivered a land-mark ruling on the results of the contested last presidential Elections; the Country is still divided about these elections and the high public confidence on the Judiciary has been partially eroded with this ruling; All tribunals that were in the past under the Executive have moved now under the supervision of the Judiciary as foresseen in the Constitution, 17 effected; The Judiciary has effected a systematised approach to deliver Access to Justice: e.g. launched Mobile Courts initiative to reach out marginalized areas.

10 The Judiciary has embarked on massive construction of Courts (dozen ongoing and further 30 prefabricated planned) ; They started deploying heavily ICT, also with the aim of reducing distances to court, accelerate service delivery: E.g. they have introduced an IT system in the main Courts in Nairobi allowing users to file a case electronically very fast, and have tested in some pilot Courts a system allowing people to pay their traffic fines through M-PESA (use of mobile technology for transacting business). Overall, the whole organization structure is being developped which marks clearly now judicial from administrative functions; a performance management and a robust HR policy was adopted: all new heads of departments were recruited through competitive procedures and actually top professionals mostly from the private sector!

11 National Council for the Administration of Justice main achievements:
State Law office: Restructured and remains with the main mandate of being principal legal advisor of the GoK; Office of the Director of Public Prosecutions: linked to that established the institutional independence of the DPP with sole prosecutorial authority; Kenya Prisons Service: Enhanced collaboration among stakeholders in the criminal justice chain (police, prisons, judiciary, probation, prosecutions); remarkable reduction in the pre-trial detention cases through enhanced access to justice, judges visiting prisons has helped adress congestion of prisons (locally level through CUCs); provision legal aid to inmates, etc; Police: is currently undergoing a radical reform where an independent Police Oversight Authority is foresseen, police officers will have to undergo thorough vetting, heavy restructuring, new background standards to be required, training, etc.

12 FUNDING Initial estimated funding need to support JTF amounted to $280M over the 4 y (with in 2011/2012 $67M received from Treasury which means an historic increase of 150% from previous year); Ultimately the Judiciary wants to reach its financial autonomy but based on its current projection with an increase of 37% in the budget y2013/2014 that was actually cut down few days ago, it will still rely in the next couple of years on Donors contribution to support its ambitious development plans, mostly in building new courts, rehabilitation of existing, recruiting and training of judicial officers, automation of case management, etc.


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