Download PDF - The Judiciary

State of Judiciary 2011-2012
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KENYA HUMAN
RIGHTS
COMMISSION
Established a system for collating public
information and testimony for transmission to
the Judges and Magistrates Vetting Board
Established the Elections Processes and
Monitoring Centre (EPMC), with standing
elections monitors around the country.
Launched the KHRC publication, “Lest
We Forget: The Faces of Impunity in
Kenya”, documenting past cases of official
malpractice and recommended sanctions,
as reported in key tribunals, Parliamentary
Committees and commissions of enquiry.
Conducted fact-finding missions to Tana
River to inform interventions towards
restoring lasting peace and calm in Tana
River and beyond
Trained Human Rights networks on the
provisions of the Constitution relating to
Justice Sector Reforms to inform their
participation in CUCs across the country.
Negative impact of silo mentality
and practices hindering the flow
of information
The absence of a common
NCAJ work-plan has resulted
in a haphazard approach to
addressing issues in the Justice
Sector.
The phased approach to
Justice Sector reforms, with
judicial reforms preceding
comprehensive reforms in
other compatriot agencies
(most notably, reform of the
Kenya Police Service) has had
a disruptive, effect on ongoing
sector-wide reforms.
The tendency by government to
present many Bills simultaneously
- often, under intense pressure
of beating constitutionally
prescribed legislation deadlines
- has hampered the adequate
scrutiny by stakeholders. This
has led to poorly drafted laws,
fatally flawed or inoperable
provisions. The Power of Mercy
Act (Act Number 21 of 2011),
which was never subjected to
comprehensive stakeholder
participation, is among laws
that cannot serve their intended
purpose.
Lack of a harmonised
interpretation of the Bill of Rights.
Areas of concern are: Rules
of bail and bond; Sentencing,
more so where there is a
statutory imposition of the death
penalty; the interpretation of
life imprisonment and the legal
prescriptions for alternatives to
incarceration.
Establish robust information sharing for
the justice sector
Conduct a comprehensive audit of the
correctional, penal and holding facilities
for purposes of de-contaminating
different cadres of offenders
Build a joint Justice Sector Strategy on
the 2013 Elections
Amend the unworkable provisions of
the Power of Mercy Act to enable the
Power of Mercy Committee execute its
mandate of recommending presidential
pardons, hence, decongesting prisons.
The Attorney General and agencies
(CIC and line ministries) to ensure Bills
are processed in a timely fashion;
stakeholders are adequately involved in
debate.
The Justice Sector should apply
the experience from the Judicial
Transformation programme as an
illustrative template for rolling out reforms
in the other sector agencies, including
the legal profession. Transitional justice
principles, namely, vetting and lustration,
as well as new doctrines, including,
public participation, should be
advanced across the board as a means
towards transforming the sector.
The NCAJ should lead the process of
establishing guidelines and rules on
various aspects of administration of
justice, including bail, sentencing and
alternative dispute resolution.
NATIONAL
COUNCIL FOR
LAW REPORTING
Facilitated the development of a robust,
indigenous, progressive and patriotic
jurisprudence
Enhanced the financial, infrastructural and
human resources of the Council
Compiled a specialised set of legal
reference materials on the law and
jurisprudence of elections as well
as emerging jurisprudence on the
interpretation of the constitution particularly
on the Bill of Rights, leadership and integrity
Lack of adequate resources to
effectively fulfil NCLR’s mandate
Legal risks and liabilities
associated with publishing and
dissemination of information
Dynamic changes in technology
for which NCLR has limited
resources to pace
Increase financial, human and
infrastructural resources allocation
to the Council to enable it meet the
demands of the transformed Judiciary
and the expectations of Kenyans under
the new Constitution
Democratise access to public legal
information through the use of national
language
Leverage on partnerships with the
Judiciary Training Institute, Kenya
School of Law and other stakeholders
in improving the quality and quantity of
legal resource materials