2006 Speeches
Speech to the Kenyan Chapter of the International Commission of Jurists
December 8, 2006
Good evening ladies and gentleman!
I am very grateful to the Kenya chapter of the International Commission of Jurists for the privilege to be here with you this evening to honor the Jurist of the Year and to commemorate International Human Rights Day.
As I have noted on numerous occasions since arriving here in Kenya, Kenyans have good reasons to be optimistic about their future. All the long- term trends suggest progress on the political and economic fronts. Let me emphasize that the growing U.S.-Kenyan partnership will continue to provide strong support for this forward movement.
While this positive growth is laudable, it's vital that the development of legal reform and legal institutions receive the necessary support to ensure equitable access to justice for all. The hallmark of every stable and thriving democracy is a government that implements policies and develops institutions that promote transparency, accountability, and a criminal justice system that applies the law equally to every member of society regardless of race, gender, tribal affiliation, social status, or position in government.
It is in this vein that I would like to recognize the vital work that the Kenyan chapter of the International Commission of Jurists has done over the past several years. As an organization that has a mandate for the protection of human rights, rule of law, and democracy, your work is critical to ensuring that the rule of law takes firm, institutional root in Kenya. As we approach another national election, this issue is especially relevant.
While important, tangible gains have been made on many fronts, the criminal justice sector lags behind the progress made in other fields. The two areas that I would like to focus on this evening are the Judiciary and the Department of Public Prosecutions.
Judiciary
I know that the ICJ-Kenya has implemented a successful Judiciary Program with a four-project initiative to improve the Judiciary's independence, effectiveness and accessibility. While the Judiciary has stabilized after the so called "radical surgery" of 2002, much work still needs to be done if the goals of independence and accountability of the Judiciary are to be fully achieved. Deep-seated patterns of corruption in the administration of justice have been a serious impediment to the rule of law in Kenya. The controversies and difficulties surrounding the removal of judges and magistrates underscores a need to establish clear, transparent, and objective criteria and procedures for the appointment, promotion, and dismissal of all judicial positions. In accord with the reforms supported by the ICJ, the achievement of gender equity and elimination of discriminatory factors in all judicial appointments in the country must also be made a priority.
The reformation of the Judicial Service Commission would be an important step in ensuring an independent judiciary. Perhaps more importantly, strict guidelines that insure a separation between the Executive branch and the Judiciary need to be promulgated to ensure public confidence in the independence of the Judiciary. And lastly, structural barriers need to be removed to allow ordinary citizens access to justice.
Department of Public Prosecutions
The most evident need for further development in the criminal justice sector is the Department of Public Prosecutions. Kenya's Department of Public Prosecutions (DPP) faces numerous challenges to providing efficient delivery of justice to the citizens of Kenya. The challenges include inadequate resources, inadequate remuneration for its prosecutors, staff attrition, and the placement of the police and the prosecutors under two separate authorities, preventing even the most basic institutional cooperation.
What makes these shortfalls even more critical is that they occur in the context of population growth and emerging challenges posed by transnational crime. These include crimes such as Internet fraud, cyber crime, money-laundering, terrorism, and the narcotics trafficking, among others. While there is widespread agreement that change is urgent, little has been done to address the situation.
If the overall objective is to design an efficient, effective, and modern DPP for Kenya, then our goal is to assist Kenya to strengthen the capacity of the DPP as the highest prosecutorial authority. The United States is working to assist the DPP. Bringing together both investigators and prosecutors would allow for the development of an administrative and reporting structure to harmonize all public prosecutions throughout Kenya. Enhanced coordination between the two arms of law enforcement would also allow for the creation of infrastructure such as a case screening system. A screening system would allow police investigators in conjunction with prosecutors to assess criminal cases for sufficiency of the evidence. This process would screen out inappropriate or inadequate cases, which would in turn have an immediate impact on reducing the burden on the criminal justice system.
Plea Agreement scheme
On the issue of reducing the burdens on the criminal justice system, the Law Reform Committee of the Attorney General's State Law Office has proposed a landmark plea agreement bill. The passage of such a bill would have a revolutionary impact on the justice system, with the potential to virtually eliminate the current backlog of cases and address the genuine human rights concerns of individuals staying in remand for 5 to 6 years awaiting adjudication of their cases. The tabling of this bill before Parliament would be a huge victory in the reformation of the criminal justice system.
Rule of Law:
On a more general note, let me take a moment to talk about the rule of law in Kenya. The rule of law is the lifeblood of any democratic system. Kenya has made enormous positive strides since the elections of 2002, and for that the government, political class, civil society, and people of Kenya should be commended. As you all probably agree, the rule of law is vital to maintain these positive gains. In any democratic society, the rule of law is an overarching concept that must be a constant presence in every discussion and must guide actions on every issue, from the regulation of political parties, to the way we handle peaceful demonstrations, to the role government plays in the electoral process.
Some recent actions by the Kenyan government have sent mixed signals. Mixed signals are, in fact, a reality in any democratic system, including the United States, as democracies strive to cope with evolving developments. But Kenya is being held to very high standards precisely because of the success thus far of Kenyan democracy and high expectations for the strengthening of democracy in this great country. Kenya is also being held to high standards because it stands out as a bastion of regional stability, and as one of the bright lights of the African continent. In that context, the United States, as the strongest partner of Kenya, wants to help ensure support for the rule of law. To maximize the impact of this bilateral partnership, it is up to Kenyans to prevent either the perception or the reality that the rule of law in Kenya is fungible. That said, I am optimistic that Kenya is on the right track towards an even stronger and prosperous democratic future.
I applaud the efforts of the ICJ- Kenya chapter for their contributions to and promotion of the rule of law in Kenya. Congratulations and keep up the great work. Asanteni sana.