KENYA: SUPPORTING COMMERCIAL JUSTICE SECTOR REFORMS IDLO QUARTERLY REPORT

Transcription

1 KENYA: SUPPORTING COMMERCIAL JUSTICE SECTOR REFORMS IDLO QUARTERLY REPORT Country Kenya Programme Duration 1 July December 2019 Donor Government of the Netherlands Programme Reference Number Programme Value EUR 2,683,040 Reporting Period 1 July 30 September 2017 Submitted to The Embassy of the Kingdom of the Netherlands in Nairobi, Kenya Submitted on 6 December 2017

2 TABLE OF CONTENTS I. EXECUTIVE SUMMARY... 3 II. PROGRAMME GOAL... 4 III. RESOURCES... 4 IV. PROGRESS AGAINST PROGRAMME OUTCOMES AND OUTPUTS... 4 V. CHALLENGES AND LESSONS LEARNED... 5 VI. CONCLUSION AND WAY FORWARD... 6 The International Development Law Organization (IDLO) is pleased to submit this narrative Quarterly Report to the Embassy of the Kingdom of the Netherlands in Nairobi, Kenya (the Embassy) as a courtesy accompaniment to required IATI reporting in accordance with the Arrangement for the Programme Supporting Commercial Justice Sector Reforms as signed by the Minister for Foreign Trade and Development Cooperation of the Netherlands and IDLO on 3 August

3 I. EXECUTIVE SUMMARY The promulgation and implementation of the Constitution of Kenya, 2010 resulted in the fundamental transformation of the Kenyan Judiciary. Both in its prescriptions and inspiration it resulted in a reorientation of structure and operations. The foundation for the new Judiciary are Articles 1 and 159 of the Constitution of Kenya. Underpinned by the provisions of Article 159 of the Constitution, the Judiciary developed a Judiciary Transformation Framework (JTF) The JTF provided the foundation for far-reaching reforms within the Judiciary, focusing on all aspect ranging from infrastructure, culture, staffing, processes, training, technology and policies. The reforms have resulted in construction of more court rooms across the country, hiring of more judges, magistrates and staff, increase in geographical spread and coverage of courts, decentralisation of the Court of Appeal, improvement in the financial health of the Judiciary and reduction of case backlog, and the establishment of various divisions that deal with specific matters and these have been done with the enhancement of the use of technology within the Courts in the bid to expedite the resolution of cases. Procedural justice within the context of commercial law is premised on the fact that an effective commercial justice system meets and facilitates the specialised needs of the business community and the private sector at large. Consequently, commercial law addresses these needs by meeting the following criteria: (i) agreements are upheld; (ii) commercial decisions are predictable so that businesses can anticipate risks and know where they stand; (iii) law and jurisprudence ensure dynamic flexibility to adapt to emerging needs and practices of the business sector; and (iv) resolution of disputes are timely, efficient, effective and inexpensive. The establishment of the Commercial and Tax Division was founded on the general rationale for setting up specialised courts and tribunals, in order to ensure improved delivery of commercial justice, better case management and improved specialised jurisprudence. However, there are still persistent challenges related to the dispensation of commercial justice in Kenya, including the following: (i) period taken to resolve a commercial dispute days, on average; (ii) high cost to enforce a contract % of the claim value in Nairobi; (iii) low score on the judicial processes index 7.8 out of 18 points; (iv) high number of civil cases still pending in the Judiciary - 209,919 cases in 2014; (v) long wait for the parties for their day in court after the pretrial conference, due to case backlogs - between three to six months (and sometimes longer) depending on the availability of the magistrate and the time of the year; (vi) high number of pending cases and backlog; (vii) lost economic opportunities due to cases delay; (viii) slow adoption and use of technology to administer/facilitate Justice; (ix) confusion between the mandates of the Commercial and Tax Division versus alternative options that also have conflicting mandate or jurisdiction - whether other Courts, Divisions or Tribunals; and (x) lack of clarity around arbitration and mediation. Premised on support to the Judiciary s blueprint Sustained Judiciary Transformation (SJT) Framework, this Programme seeks to improve business and investment climate for the private sector through quick, efficient, transparent and predictable commercial dispute resolution. Given the above-mentioned challenges, if the processes and procedures for administering commercial justice are strengthened - through the Commercial and Tax Division of the High Court, ensuring that commercial justice is dispensed in a quick, just and efficient manner - there will be improved private sector confidence in, and engagement with, Kenya s commercial sector. This will in turn contribute to an improved business and investment climate for both Kenyan, Dutch and other foreign investors, businesses, and firms. Moreover, this Programme seeks to make a significant contribution to the realisation of the Government of the Netherland s New Agenda for Aid, Trade and Investment, and the Embassy s 3

4 commitment to improve its trade relations with the Republic of Kenya as captured in the Multi- Annual Strategic Plan for Kenya (MASP), which targets phasing out aid to Kenya by 2021 and instead focuses on expanding private sector investments and commitments to improved business climate. This Programme is aligned to the following MASP Objective 3: Improved business climate, and Objective 4: Expanded Dutch trade and investments. Further, this Programme aims to enrich Kenya s Vision 2030 s Second Medium Term Plan (MTP ), Transforming Kenya: Pathway to Devolution, Socio-economic Development, Equity and National Unity. II. PROGRAMME GOAL Improved business and investment climate for the Kenyan private sector through quick, efficient, transparent and predictable commercial dispute resolution. Overall, this Programme aims to ensure improved business and investment confidence in the judicial system in Kenya. III. RESOURCES IDLO s estimated budget projections for 2017 are approximately EUR 980,864. IV. PROGRESS AGAINST PROGRAMME OUTCOMES AND OUTPUTS OUTCOME 1: STRENGTHENED INSTITUTIONAL CAPACITY OF THE COMMERCIAL AND TAX DIVISION TO FACILITATE DISPENSATION OF COMMERCIAL MATTERS IN A QUICK, FAIR AND JUST MANNER Output 1: Commercial and Tax Division of the High Court Fully Automated Analytical report on ICT automation in comparative jurisdictions and best practices During the reporting period, IDLO shared an Analytical Report on ICT automation in comparative jurisdictions with the Commercial and Tax Division. The Report analyses the jurisdictions that have successfully implemented ICT automation and digitisation of courts, and provides best practices to be replicated. Based on the experience of other jurisdictions, IDLO will conduct a benchmarking visit in February 2018, aimed at building the capacity of the Judiciary staff on court automation. The visit will include training and sharing of experiences from the said jurisdictions that have already successfully automated their courts. Provision of human resource support to operationalise the automation and digitisation processes In September 2017, IDLO recruited a Programme Coordinator to be embedded within the Judiciary to coordinate the implementation of the digitisation process. The Programme Coordinator will work closely with various stakeholders to successfully implement commercial justice sector reforms towards an efficient digital process. 4

5 Output 2: ADR Strengthened and Operationalized for Commercial Dispute Resolution Support towards the conduction of a Baseline Assessment and development of a Recommendation Report to determine the situation of various alternative dispute resolution (ADR) mechanisms The ADR Task Force composed of members of the Judiciary, the Law Society of Kenya (LSK), the Judicial Service Commission (JSC), the Judiciary Training Institute (JTI), ADR groups, and business associations was formalised through the publication of terms of reference in the Gazette Notice No of The Task Force s role is to oversee the management of Court-Annexed Mediation Project (CAMP) and examine issues relating to ADR in Kenya. To achieve these ambitious plans, the Task Force is strengthening its technical capacity through the appointment of a range of technical experts and administrative support. It is in this regard that the Task Force, in September 2017, sought IDLO s support in providing it with a Technical Consultant to conduct and develop a baseline assessment, situational analysis and recommendation report of various ADR mechanisms towards the development and alignment of legal and policy frameworks. IDLO has agreed to provide the said support and will recruit the consultant in the next Quarter. Output 3: Capacity of Judges and Magistrates in the Commercial Division Enhanced through Training with the Judiciary Training Institute No activities were implemented during the Quarter. OUTCOME 2: IMPROVED PRIVATE SECTOR CONFIDENCE IN KENYA S COMMERCIAL JUSTICE SYSTEMS Output 4: Increased and Sustained Engagement between the Judiciary and the Private Sector through Business Court Users Committee (BCUC) Technical assistance towards the operations and activities of the BCUC, IDLO presented the Programme and its initiatives to the BCUC during a meeting held on 26 September The BCUC welcomed the Programme and suggested that IDLO recruits a Programme Officer with the aim of establishing a robust secretariat and towards creating a model that can be imitated by other court stations. Subsequently, the BCUC and IDLO discussed the opportunity to organise a forum in December 2017 with stakeholders in order to develop the BCUC s terms of reference and to develop the 2018 workplan in line with the Programme s support. V. CHALLENGES AND LESSONS LEARNED Due to IDLO s work with the Judiciary on Electoral Dispute Resolution, IDLO was the subject of a misinformation campaign on social media following the judgment of the Supreme Court in September 2017 nullifying the results of the August 2017 election. IDLO s technical assistance to key offices within the Judiciary significantly slowed. Furthermore, ongoing election petitions have slowed the activities of the High Court, including the Commercial and Tax Division given the tight deadlines for hearing and determination before March However, IDLO used the opportunity to clarify to the general public the nature of its work in Kenya geared towards ensuring entrenchment of the rule of law. IDLO generated a factsheet on its work in Kenya, which was shared widely with Development Partners, Government agencies, consultants 5

6 and others. The Kenya Country Office also convened a meeting with all consultants on 13 October 2017 to assure them of IDLO s continued support and of the actions that IDLO was taking in dealing with the issue of misinformation campaign. The IDLO Kenya Team held a de-briefing session with a counsellor in an effort to help the staff share their experiences and coping mechanisms in light of the challenging few weeks endured and to ensure that motivation levels remained high. The impact and importance of the support IDLO offers to key Government institutions in Kenya has been manifested in the confidence these institutions have in IDLO, with various institutions reiterating their confidence in partnering with IDLO throughout the last months. IDLO continued to receive various requests for support from various Kenyan agencies throughout the Quarter. IDLO continues to recognise that the lessons previously learned 1 in the support to the Commercial and Tax Division have been critical in ensuring successful implementation of this Programme particularly the issue of stakeholder buy-in and consultative processes. IDLO has invested heavily in time, energy and resources during the reporting period to ensure that all critical stakeholders understand the Programme and are part of the implementation process in a meaningful way. VI. CONCLUSION AND WAY FORWARD Despite initial challenges and delays in the Programme start-up (due to the contract signing in early August 2017, and receipt of funds on 23 August 2017), the Programme is off to a great start and is being well received by all stakeholders. It is envisioned that a formal launch of the Programme with the Chief Justice and the Ambassador of the Kingdom of the Netherlands to Nairobi, Kenya will take place in early 2018, once the election season has passed. IDLO remains grateful for the Embassy of the Kingdom of the Netherland s support and looks forward to further fruitful engagements in years to come. 1 IDLO has been providing support to the Commercial and Tax Division through a Legal Clerk to support the implementation of the Court-Annexed Mediation Project (CAMP) since April IDLO has also previously provided technical support towards the operationalisation of the Judicial Audio and Visual Transcription System Pilot Project, with the aim of ensuring efficient dispensation of cases and remedying the heavy backlog of cases, through recording and transcription of court proceedings 6