Accessing Justice in Kenya Through Developing Specialised Courts

Abstract

The introduction of specialization in the court system has made positive contributions to the fundamental right to access justice. Specialization has made advancement in the development judicial systems and further addressed broader developmental constraints by fast tracking and settling complex cases that require expertise. In Kenya, court specialization was formally institutionalized by her 2010 constitution that saw the establishment of special courts to deal in defined scope of the law such as the environment, land disputes, employment matters, labour relations issues and small claims. However, the concept of specialized courts in Kenya has not been rosy as challenges are being experienced in their quest to promote access to justice. This has been noted in the legal process of setting them up and maintaining their operations. The noted challenges can be traced from issues to do with the needed information to deciding whether specialization is required in a certain area, the criteria, appropriate model of specialization, and further, the selection and training of the judicial officers to serve in those chosen courts. In Kenya, it has been argued that neither the constitution nor legislation envisages a scenario where courts are established outside a legislative framework. This has been seen to present serious barriers in accessing justice in matters urgency that necessitate a special court to deal with which cannot wait for parliamentary legislation to bring it forth. The Kenyan legislative process is known to be long, protracted and at times divisive; hence leading to delays in establishing any new court. Research on international experiences and best practices in this paper demonstrate that the process of establishing and maintaining specialized courts need not be cumbersome as the Kenyan experience. Thus, this research paper looks into the adequacy of the country’s legal framework on this subject and draws lessons from other international jurisdictions that the country can learn from. In particular, lessons are drawn from the USA, England, India and South Africa all whom have a well-developed and robust specialized court system. Through the findings and recommendations of this paper, it is hoped that the possible barriers to access justice

in the development of specialized courts shall be identified, isolated and eliminated. This will pave way to improved and seamless establishment and maintenance of new courts in future enhancing greater access to justice.