By: REGINA NJOGU
The 2010 Constitution created hope for strong, ethical, and effective institutions and the corresponding presumption of accountability to the public.
There was reason for optimism, given the euphoria and positive energy leading up to the new dispensation.
There was reason to anticipate a robust, independent, and accessible Judiciary whose fidelity would be to the Constitution and the law and in which the consumer of justice would have faith.
Expanded civil liberties, creation of new institutions, introduction of measures to buttress existing ones, and introduction of devolution opened up new areas of litigation.
The Constitution also inspired empowerment of the citizenry to demand more of the government and its institutions and to assert public and private rights before the courts.
Despite the fact that disadvantaged people still lack access to justice due to lack of awareness and wherewithal, those who do seem to be on overdrive in their use of courts to settle petty squabbles.
Kenyans have become increasingly sue-happy, quick to run to court to settle all kinds of disputes — from the mundane to the frivolous.
It has become so much of a quip that I recently came across a joke suggesting that someone should file a suit at the high court to stop El Nino from happening!
We now look for legal solutions to all problems, including those that require a different approach.
As a result, there has been a marked increase in the number of cases filed, threatening to wipe out the gains achieved by the backlog clearance initiative that has been under way at the Judiciary.
The Judiciary embarked on much-needed reforms, the main one being the clearing of a backlog that had incapacitated it.
Great strides have been made on this front.
But with the emerging culture of litigiousness, the provision of justice is likely to get more expensive and time-consuming.
There is likely to emerge an unmanageable backlog, while the cost for litigation is likely to keep the courts inaccessible to most people.
It must be noted, though, that a healthy level of litigiousness suggests increased accessibility and confidence in the courts.
It also suggests that more people are empowered about their rights and how to vindicate them before the courts.
The courts appear to be too liberal in entertaining mischievous cases and setting lengthy postponements on decisions involving basic and routine questions of law and/or fact.
ABUSE OF COURT PROCESS
Corruption, unproductivity, lack of capacity, and internal wrangling also present major setbacks.
The recent initiative to institute a system for tracking rulings and the productivity of the courts is welcome, but could easily prove unavailing if a stanchion is not in place.
Reforms should be entrenched to avoid regression.
The courts should weed out frivolous cases from their dockets and should be keen to avoid being used by persons seeking sinister gratification.
To discourage misuse and abuse of the court process, there should be consequences for bringing frivolous lawsuits.
There should also be sanctions against lawyers representing such clients, which at the very least should include public reprimand and payment of the other parties’ attorney fees.
Courts should also avoid being roped into petty controversies that can be easily resolved extra-judicially by requiring mandatory mediation on certain types of cases.
Thirdly, the liberalism with which courts are issuing injunctions is worrying and suggestive of lack of strict standards.
UNIFORMITY OF RULINGS
There is a need for uniformity of rulings.
We even have judges overruling one another in a single case and thereby confusing the litigants (see the TSC versus Knut cases).
Such discrepancies do not help in the effort to repair the image of the Judiciary, neither does it inspire public confidence in the merits of court rulings.
Matters involving interlocutory questions of law should be disposed of.
Ordinarily, such questions should not be too complex for any judicial officer steeped in judgeship because they are the fingertip kind of issues.
Every case should have a lifespan. No matter its complexity, a case should never drag through the system indefinitely.
If a judge or magistrate finds a case too complex, this might suggest that he or she is not competent.
SOURCE: DAILY NATION