Unpreparedness accounts for 44.78pc of case delays says CJ

A Judiciary survey has revealed main reasons behind huge case backlogs in courts countrywide.

Chief Justice (CJ) Dr. Willy Mutunga said that unpreparedness of lawyers, police, probation officers and courts not being in session dragged resolution of legal disputes.

“Parties being unprepared accounted for 44.78 percent of case delays and courts not being in session (20.22 per cent),” Dr. Mutunga said.

The CJ said that the soon to be released Survey of Case Backlogs in the Country shows that unpreparedness of probation officers account for 18.34 percent of delays and lawyers (10.93 per cent).

“The Judiciary is also under staffed but managed to reduce case back log from one million to 485,976 countrywide over the past three years alone,” Dr. Mutunga said.

The CJ was delivering a key note address at the Law Society of Kenya (LSK) Annual Conference that concluded at the Leisure Lodge Beach & Golf Resort in Kwale, County at the weekend.

The theme of the Conference that attracted over 800 lawyers was The Spirit of the Law: Constitutional Tension between the Three Arms of the Government.

“The survey was to review our (Judiciary) work methods and look into why cases take so long to resolve,” Dr. Mutunga said.

The CJ said that out of the sampled cases, 52.1 per cent had legal representation whereas 47.9 per cent had none.

A whopping 90 per cent of the cases were civil compared to 36 per cent that were criminal in nature.

Dr Mutunga said that cases with legal representation take averagely 274 more days to conclude compared to those without following adjournments applications by lawyers.

“Many adjournments are requested by lawyers who are not ready to proceed citing various reasons,” Dr. Mutunga said.

The CJ said that sluggishness in dispute resolution is not acceptable arguing that the constitution forbids delays in delivery of justice.

“We need more Judges and every county should have an Environment and Land Judge but the law only creates 30 positions leaving a deficit of 17,” Dr. Mutunga said.

The CJ was optimistic that legal representation countrywide would increase following the magnitude of newly admitted advocates.

“Approximately 1,200 advocates were admitted last year and 907 others were sworn into the Bar between January and August this year,” Dr. Mutunga said.

The CJ said that the Judiciary is at the mid-point of implementing its Transformation Framework 2012-2016 which is a blue print for change.

Martha Karua Shuns ‘Accept and Move On’

Meanwhile, Former Justice and Constitutional Affairs Minister Ms. Martha Karua has criticized Government for breaching the constitution.

Ms. Karua said that the Government should stop promoting the mantra of ‘accept and move on’ when the constitution is supreme.

The former Justice Minister said that she supports calls for a referendum towards making the Government listen to realities affecting Kenyans directly.

“We should not cheer as the Government perpetuates impunity and disrespect the Rule of Law to the extent of the National Assembly Speaker dismisses court orders,” Ms. Karua said.

Ms. Karua said that Article two of the constitution is explicit on the supremacy of the constitution which binds all people and State organs at both levels of Government.

“We need to internalize provisions of the supreme law and uphold the Rule of Law instead of the mantra of ‘accept and move on’,” Ms. Karua said.

Ms. Karua explained that Parliament was supreme in the old constitutional order but now the constitution is the supreme law.

“It is strange that in the wake of the new constitution, Parliament can threaten to withhold funds from the Judiciary to arm-twist the arm of Government, “Ms. Karua said.

The Justice Minister explained that separation of powers is the hallmark of a Presidential system of Government.

“Things that are happening in this country that are not right must be corrected…the Government must also accept positive criticism towards democracy and development,” Ms. Karua said.

The former Justice Minister regretted that the public was fast losing confidence in institutions like the Judiciary and constitutional commissions over thriving impunity.

“How would the public trust courts when a Speaker trashes its decisions or when Senators are unconstitutionally put in charge of county development boards?” Ms. Karua posed.

Ms. Karua said that Governors were elected to be executive heads of the devolved units and cannot be subordinated by Senators.

“How can you chair a Governor in his house? If Senators wanted to lead the counties then they would have run for Governor’s seats,” Ms. Karua said.

Ms. Karua said that the laws creating the county development boards was passed out of malice and set a bad precedence on separation of powers.

She was speaking at the same conference.