AD442: Most Kenyans seek – and find – justice outside formal court system

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Dispatches
2021
442
Simon Templer Kodiaga and Paul Kamau

Kenya’s Constitution calls for a justice system that is accessible, affordable, and comprehensible to ordinary people and that dispenses justice fairly, speedily, and without discrimination, fear, or favour. The Constitution lays down principles to guide the administration of justice, including equality before the law, efficiency in the delivery of justice, mainstreaming of alternative justice systems, and the importance of substantive justice regardless of legal procedures and technicalities (Republic of Kenya, 2010).

However, many Kenyans are unable to enjoy their constitutional right of access to justice, whether because of financial constraints, the complexity of the law, a lack of legal counsel, long delays, or other reasons (Logan, 2017). Kenya consistently ranks low in terms of the rule of law and judicial integrity. The World Justice Project’s (2020) Rule of Law Index rates Kenya 102nd out of 128 countries globally.

A large backlog of cases remains a problem, although notable progress has been made: Between January 2017 and December 2018, the backlog was reduced from 170,186 to 102,773 cases pending for more than five years. This 40% reduction was made possible through support provided to alternative dispute resolution (ADR) mechanisms aimed at easing the burden on the courts (Republic of Kenya, 2019).

To improve efficiency and enhance access to justice, the Kenya judiciary also digitalized court files and court proceedings, automated registries, and implemented electronic filing of cases (e-filing), automated fee assessment, e-payments, and other e-services (International Law Development Organization, 2017).

But findings from the most recent Afrobarometer survey in Kenya suggest that challenges remain. Although a majority of Kenyans trust the courts, more than one-third think that most or all judges and magistrates are involved in corruption – about half the perceived corruption level for the police, but twice the rate for traditional and religious leaders. A majority of citizens who interacted with the courts reported problems such as costs they couldn’t afford and judges who wouldn’t listen.

Most Kenyans with justice-related problems turn to family and friends, traditional leaders, or other resources outside the formal court system, and they are generally satisfied with the outcome.