The dispute over the results of the Kenyan presidential election in December 2007 led to unprecedented violence, ethnic animosity and mass displacement in what was previously considered a peaceful and stable country. Between 27 December 2007 and 29 February 2008, 1,133 men, women and children lost their lives, 3,561 people sustained serious injury and over 300,000 individuals were displaced from their homes. Although the causes of the crisis were diverse, the tendency to violence among members of the public was exacerbated by a perception that government institutions and officials, including the judiciary, were not independent of the presidency and lacked integrity.
In the aftermath of the violence, the attention of Kenyans, Kenya’s partners in Africa and the wider international community turned to instituting a programme of fundamental reforms to deliver sustainable peace, stability and justice through rule of law and respect for human rights. As part of this process the Law Society of Kenya (LSK) sought to instigate an overhaul of its system with the help of Rithika Moore-Vaderaa BL, Ercus Stewart SC, Diane Duggan BL and Mernan Femi-Oluyede.
The team began discussions with LSK in 2008, who presented a detailed report identifying a variety of issues they deemed as in need of address. Reform of the judicial sector was high on the agenda, as there were a number of areas of immediate concern. For instance, there were only four Magistrates who managed the concerns of four million people residing in their district. Close to one million cases remained in backlog. The team decided that the severity of the problems concerned necessitated an international presence, and as such the report and objectives were put before the International Bar Association’s Human Rights Institute (IBAHRI). The IBAHRI co-ordinated with the International Legal Assistance Consortium (ILAC) and, with the support of LSK, a needs assessment mission was carried out in October 2009 in order to examine the current functioning of the judicial system and to identify and prioritise ways in which support might be provided to the ongoing process of justice sector reform. The delegation consulted widely, holding a total of 35 meetings with government officials, members of the judiciary, lawyers and lawyers’ organisations, legal academics, international and regional donor organisations and representatives of civil society.
The mission findings were published in the report: Restoring Integrity: An assessment of the needs of the justice system in the Republic of Kenya, February 2010.
The report documents a pressing need for judicial reform. Public confidence in the judicial system had virtually collapsed. A lack of independence in the judiciary, corruption, delays in court processes, and the costs associated with using the court system, all served to perpetuate a widely held belief among ordinary Kenyans that formal justice was only available to an elite few.
The report shows that radical reform of the relationship between Kenya’s executive and judiciary was needed. It contains recommendations to exclude the Chief Justice and Attorney General from the Judicial Service Commission, reform the judicial appointments process, and transfer the Attorney General’s prosecutorial powers to an independent office. The report also supports the establishment of a Special Tribunal to complement, not replace, prosecutions before the International Criminal Court concerning post-election violence. The Kenyan Government was encouraged to adopt these reforms as part of its new Constitution, which was being debated at the time.
The new Kenyan Constitution was ratified on 27 August 2010, with many of the recommendations having been considered .