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FRANCESCHI: Revising our outdated justice system (Part I)

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By LUIS FRANCESCHI
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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Today’s court system is outdated.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.

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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



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Public officers above 58 years and with pre-existing conditions told to work from home: The Standard

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Head of Public Service Joseph Kinyua. [File, Standard]
In a document from Head of Public Service, Joseph Kinyua new measure have been outlined to curb the bulging spread of covid-19. Public officers with underlying health conditions and those who are over 58 years -a group that experts have classified as most vulnerable to the virus will be required to execute their duties from home.

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However, the new rule excluded personnel in the security sector and other critical and essential services.
“All State and public officers with pre-existing medical conditions and/or aged 58 years and above serving in CSG5 (job group ‘S’) and below or their equivalents should forthwith work from home,” read the document,” read the document.
To ensure that those working from home deliver, the Public Service directs that there be clear assignments and targets tasked for the period designated and a clear reporting line to monitor and review work done.
SEE ALSO: Thinking inside the cardboard box for post-lockdown work stations
Others measures outlined in the document include the provision of personal protective equipment to staff, provision of sanitizers and access to washing facilities fitted with soap and water, temperature checks for all staff and clients entering public offices regular fumigation of office premises and vehicles and minimizing of visitors except by prior appointments.
Officers who contract the virus and come back to work after quarantine or isolation period will be required to follow specific directives such as obtaining clearance from the isolation facility certified by the designated persons indicating that the public officer is free and safe from Covid-19. The officer will also be required to stay away from duty station for a period of seven days after the date of medical certification.
“The period a public officer spends in quarantine or isolation due to Covid-19, shall be treated as sick leave and shall be subject to the Provisions of the Human Resource Policy and procedures Manual for the Public Service(May,2016),” read the document.
The service has also made discrimination and stigmatization an offence and has guaranteed those affected with the virus to receive adequate access to mental health and psychosocial supported offered by the government.
The new directives targeting the Public Services come at a time when Kenyans have increasingly shown lack of strict observance of the issued guidelines even as the number of positive Covid-19 cases skyrocket to 13,771 and leaving 238 dead as of today.
SEE ALSO: Working from home could be blessing in disguise for persons with disabilities
Principal Secretaries/ Accounting Officers will be personally responsible for effective enforcement and compliance of the current guidelines and any future directives issued to mitigate the spread of Covid-19.

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Uhuru convenes summit to review rising Covid-19 cases: The Standard

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President Uhuru Kenyatta (pictured) will on Friday, July 24, meet governors following the ballooning Covid-19 infections in recent days.
The session will among other things review the efficacy of the containment measures in place and review the impact of the phased easing of the restrictions, State House said in a statement.
This story is being updated.
SEE ALSO: Sakaja resigns from Covid-19 Senate committee, in court tomorrow

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Drastic life changes affecting mental health

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Kenya has been ranked 6th among African countries with the highest cases of depression, this has triggered anxiety by the World Health Organization (WHO), with 1.9 million people suffering from a form of mental conditions such as depression, substance abuse.

KBC Radio_KICD Timetable

Globally, one in four people is affected by mental or neurological disorders at some point in their lives, this is according to the WHO.

Currently, around 450 million people suffer from such conditions, placing mental disorders among the leading causes of ill-health and disability worldwide.

The pandemic has also been known to cause significant distress, mostly affecting the state of one’s mental well-being.

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With the spread of the COVID-19 pandemic attributed to the novel Coronavirus disease, millions have been affected globally with over 14 million infections and half a million deaths as to date. This has brought about uncertainty coupled with difficult situations, including job loss and the risk of contracting the deadly virus.

In Kenya the first Coronavirus case was reported in Nairobi by the Ministry of Health on the 12th March 2020.  It was not until the government put in place precautionary measures including a curfew and lockdown (the latter having being lifted) due to an increase in the number of infections that people began feeling its effect both economically and socially.

A study by Dr. Habil Otanga,  a Lecturer at the University of Nairobi, Department of Psychology says  that such measures can in turn lead to surge in mental related illnesses including depression, feelings of confusion, anger and fear, and even substance abuse. It also brings with it a sense of boredom, loneliness, anger, isolation and frustration. In the post-quarantine/isolation period, loss of employment due to the depressed economy and the stigma around the disease are also likely to lead to mental health problems.

The Kenya National Bureau of Statistics (KNBS) states that at least 300,000 Kenyans have lost their jobs due to the Coronavirus pandemic between the period of January and March this year.

KNBC noted that the number of employed Kenyans plunged to 17.8 million as of March from 18.1 million people as compared to last year in December. The Report states that the unemployment rate in Kenya stands at 13.7 per cent as of March this year while it stood 12.4 per cent in December 2019.

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Mama T (not her real name) is among millions of Kenyans who have been affected by containment measures put in place to curb the spread of the virus, either by losing their source of income or having to work under tough guidelines put in place by the MOH.

As young mother and an event organizer, she has found it hard to explain to her children why they cannot go to school or socialize freely with their peers as before.

“Sometimes it gets difficult as they do not understand what is happening due to their age, this at times becomes hard on me as they often think I am punishing them,”

Her contract was put on hold as no event or public gatherings can take place due to the pandemic. This has brought other challenges along with it, as she has to find means of fending for her family expenditures that including rent and food.

“I often wake up in the middle of the night with worries about my next move as the pandemic does not exhibit any signs of easing up,” she says. She adds that she has been forced to sort for manual jobs to keep her family afloat.

Ms. Mary Wahome, a Counseling Psychologist and Programs Director at ‘The Reason to Hope,’ in Karen, Nairobi says that such kind of drastic life changes have an adverse effect on one’s mental status including their family members and if not addressed early can lead to depression among other issues.

“We have had cases of people indulging in substance abuse to deal with the uncertainty and stress brought about by the pandemic, this in turn leads to dependence and also domestic abuse,”

Sam Njoroge , a waiter at a local hotel in Kiambu, has found himself indulging in substance abuse due to challenges he is facing after the hotel he was working in was closed down as it has not yet met the standards required by the MOH to open.

“My day starts at 6am where I go to a local pub, here I can get a drink for as little as Sh30, It makes me suppress the frustration I feel.” he says.

Sam is among the many who have found themselves in the same predicament and resulted to substance abuse finding ways to beat strict measures put in place by the government on the sale of alcohol so as to cope.

Mary says, situations like Sam’s are dangerous and if not addressed early can lead to serious complications, including addiction and dependency, violent behavior and also early death due to health complications.

She has, however, lauded the government for encouraging mental wellness and also launching the Psychological First Aid (PFA) guide in the wake of the virus putting emphasis on the three action principal of look, listen and link. “When we follow this it will be easy to identify an individual in distress and also offer assistance”.

Mary has urged anyone feeling the weight of the virus taking a toll on them not to hesitate but look for someone to talk to.

“You should not only seek help from a specialist but also talk to a friend, let them know what you are undergoing and how you feel, this will help ease their emotional stress and also find ways of dealing with the situation they are facing,” She added

Mary continued to stress on the need to perform frequent body exercises as a form of stress relief, reading and also taking advantage of this unfortunate COVID-19 period to engage in hobbies and talent development.

“Let people take this as an opportunity to kip fit, get in touch with one’s inner self and  also engage in   reading that would  help expand their knowledge.

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