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Revising our outdated justice system (Part I)



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Bloody revolutions, anarchy and tyranny are related. It was not the bullet shot by Gavrilo Princip that started the first world war. It was not Germany’s invasion of Poland on 1st September 1939 that caused the Second World War.

It was not the graffiti painted on a wall in the southern city of Deraa asking for Assad’s downfall that prompted the Syrian civil war, or Mohamed Bouazizi’s self-immolation in front of a government building that sparked the Arab spring.

Those events were triggers; the last drop on a full cup… Revolutions take their sweet time to brew; they build up slowly but surely. Just like boiling water, made up of simple ingredients: cold water, a jiko, firewood, a matchstick and time. Before we realise it, the water is boiling and scalding everything it touches.

The water is the people, the matchstick is injustice, the firewood is a dysfunctional court system and the jiko is the government. When injustice (the fire) reaches a critical point, the people boil…then we have a revolution; anarchy sets in and only tyranny can control it.

In general terms, revolutions are ideological or social. Ideological revolutions make a deeper impact, last longer and they are more difficult to reverse. With counted exceptions, they are good only on paper; even though they are sometimes romanticised by historical revisionists or wannabes.

Ideological revolutions usually create new elites that suppress the people they should have liberated, increase their poverty and misery, and deny those very freedoms and democratic rights they had promised.

Social revolutions, instead, are short-lived, bloody, cruel and unplanned. They are the outburst of despair…the boiling point brought about by injustice and hopelessness with no prospects for formal redress.

Today’s court system is outdated. We got stuck in a system that served its purpose hundreds of years ago, but not anymore. It is slow, crammed and inefficient. Quick fixes have been tried. But alas, appointing more judges and pumping more money in an ailing and dysfunctional system makes matters worse. It digs deeper into the pockets of tax payers and yet it brings no redress to justice seekers.

The fire is slowly but surely warming the water. The archaic and flawed system is brewing the patience of citizens who keep paying for it through taxes, tears and bribes but find no justice. Thus, judiciaries in developing nations are becoming the perfect culture medium for social revolutions. The water is heating; it will boil, it will happen, we know it, yet we will be shocked when it happens and ask ourselves what happened? How did it happen? The answer is simple: just physics.

Already 20 years ago, Maria Dakolias published in the Yale Human Rights and Development Journal a powerful study titled, ‘Court Performance Around the World: A Comparative Perspective.’

In this study, Dakolias argues that sustainable economic and social progress only happens when the rule of law is respected, and this respect is achieved by having an efficient and effective judiciary. A judiciary that is predictable, because its decisions are a product of the certainty of laws.

She assessed judiciaries on seven parameters: 1) Number of cases filed per year; 2) number of cases disposed per year; 3) number of cases pending at year-end; 4) clearance rate (ratio of cases disposed to cases filed); 5) congestion rate (pending and filed over resolved); 6) average duration of each case; and 7) number of judges per 100,000 inhabitants.

Already twenty years ago, Dakolias reached a sad conclusion – that justice all over the world was in tatters. Today, the reality is sadder and the situation is critical. In Germany, where justice functions, ”the average duration of a case in the courts sampled is five months: approximately forty percent of the cases are disposed off in under three months and only three percent last longer than twenty-four months.”

In Chile, the average duration was sixteen months, while the United States’ median time for the resolution of civil cases was approximately eleven months. In the special investment courts in the United Arab Emirates (Dubai and Abu Dhabi), cases are resolved within four weeks on average. This is a huge contrast with what happens at the European Court of Human Rights, where normal cases (not complex), are usually resolved in two years.

Today’s justice system is simply messing up justice…and the economy. In Brazil, for example, it has been estimated that inefficient courts reduce investment by 10 percent, and employment by nine percent.

Chief Justice Maraga said that in Kenya, 344,180 new cases were filed during the 2016/17 financial year. He is worried at the slow pace of dispute resolution, which is attributed to inefficiencies in the Judiciary and a large number of people seeking justice.

The Chief Justice also said that the courts are still grappling with a high number of cases, which stood at 533,350. Dorothy Otieno, the Data Editor at Nation, explains that ”52,352 cases had been in the court system for over 10 years since they were filed. A fifth or 66,214 cases remained unresolved for between five and 10 years, a third or 113,766 suits were undetermined for two to five years and a quarter or 83,046 cases had languished in the justice system for one to two years.”

What needs to change? Almost everything; we need a system overhaul. Court systems, lawyers’ approach to practice, procedural law and legal education. But as the saying goes ‘Rome was not built in a day’…so this will take years. We must start now.

Sadly, the space is over. Next week, I promise to present on this forum an analysis of possible and workable solutions.

Dr Franceschi is the dean of Strathmore Law School. [email protected]; Twitter: @lgfranceschi