Dr Gabrielle Lynch

The Conversation Africa

The international reputation of the Kenyan judiciary is&nbsp;running high&nbsp;following a raft of judicial reforms brought on by the 2010 constitution.

The reforms, displays of judicial independence, and largely positive personal experiences might lead one to expect that public trust in the courts has increased. But among the Kenyan public, it has not.

High-profile Supreme Court judgments have showcased a newfound judicial independence.

The most notable include the&nbsp;nullification&nbsp;of a presidential result in 2017, the rejection of government efforts to force through&nbsp;constitutional changes&nbsp;in 2021 and&nbsp;confirmation&nbsp;in 2023 of the rights of LGBTIQ+ people to form associations.

Personal experience of the courts is also largely positive.

In March 2023 I commissioned Trends and Insights For Africa, a market research company based in Nairobi, to add questions on the Kenyan judiciary to a nationally representative face-to-face&nbsp;<a data-link-role-code="open_new_tab" href="https://www.tifaresearch.com/azimio-protests-other-opposition-issues-2023-national-survey-post-post-election-issues/">survey</a>.

A photo of a judge striking gavel in a courtroom

It revealed that 18.7% of respondents reported having been involved in a case in a Kenyan courtroom. Of these, 43.4% rated the experience as very positive, 25.1% as quite positive.

Neutral responses made up 11.9%; 6.3% were quite negative; and 11.9% were very negative. Of the overall sample, 12.8% had a positive personal experience of the courts, and only 3.4% a negative one.

<h3>Public perceptions of the Kenyan judiciary have been tracked for nearly 20 years</h3>

According to 2021 data from the independent research network Afrobarometer, 16.9% of Kenyans had&nbsp;<a data-link-role-code="open_new_tab" href="https://www.afrobarometer.org/survey-resource/kenya-round-9-data-2023/">no trust</a>&nbsp;in this key institution, up from 11.4% in&nbsp;2003.

The only time that public trust was clearly lower was in 2008. This followed the 2007 election and post-election crisis, which drew attention to a&nbsp;perceived lack of judicial independence.

More worryingly still, a majority of respondents in my March 2023 poll thought that Supreme Court judges were very often or sometimes bribed (58.1%) or intimidated (59.4%) to give a verdict unsupported by the evidence.

There was hardly any distinction between public perceptions of the Supreme Court, High Court and magistrates.

Kenya's Supreme Court judges (L-R) Isaac Lenaola, Smokin Wanjala, DCJ Philomena Mwilu, CJ Martha Koome, Mohamed Ibrahim, Njoki Ndung'u and William Ouko during day one of hearing the consolidated presidential election petition on August 31, 2022 [Photo: Zakheem Rajan]

Kenya's Supreme Court judges (L-R) Isaac Lenaola, Smokin Wanjala, DCJ Philomena Mwilu, CJ Martha Koome, Mohamed Ibrahim, Njoki Ndung'u and William Ouko during day one of hearing the consolidated presidential election petition on August 31, 2022 [Photo:...

This confidence crisis is a problem because people need to believe the judiciary is acting independently if it is to play its role.

For example, the fact that the Kenyan opposition&nbsp;<a data-link-role-code="open_new_tab" href="https://www.knchr.org/Portals/0/Reports/Waki_Report.pdf">did not trust the courts</a>&nbsp;in 2007 led them to protest about the election on the streets, rather than bring a petition. It sparked the country’s worst crisis.

I am a&nbsp;political scientist&nbsp;who has studied Kenya for 20 years. My current research focuses on the critical role of the judiciary, which is relatively understudied.

<h3>What shapes perceptions</h3>

It’s important to try to understand the confidence crisis.

Despite reforms there are still regular reports of judicial bias and&nbsp;corruption. There are also interactions that&nbsp;<a data-link-role-code="open_new_tab" href="https://www.pulselive.co.ke/news/local/ahmednasir-criticises-how-martha-koome-received-president-ruto-in-parliament/6dtt40t">suggest</a>&nbsp;a “cosy relationship” between the judiciary and the political elite. This casts a shadow over the whole judiciary.

Public perception reports must also be considered in context.

The year 2003 was a time of great optimism in Kenya. It followed the landslide victory of Mwai Kibaki over the party that had ruled the country since independence.

Kenyans were the&nbsp;most optimistic citizens in the world&nbsp;at the end of 2002. Public confidence in other key institutions – including the president, parliament, electoral commission, police, and army – was higher in 2003 than any subsequent round of the&nbsp;<a data-link-role-code="open_new_tab" href="https://www.afrobarometer.org/countries/kenya/">Afrobarometer</a>.

Optimism soon turned to pessimism and finally&nbsp;deadly violence&nbsp;following the disputed election of 2007. A new constitution in 2010&nbsp;failed to provide “quick fixes”. Governance and socio-economic problems persist.

Scholars and international observers have high regard for the Supreme Court’s 2017 presidential petition ruling and subsequent bold decisions. But public opinion in Kenya is divided.

<h3>My March 2023 poll asked people whether there was a Supreme Court case that they disagreed with. </h3>

Ordinary citizens cited exactly those cases that have been internationally lauded: 47.4% referred to the gay rights of association case (freshly concluded in February 2023); 21.2% cited the 2022 presidential petition, 8.6% the 2017 petition, and 5% the 2013 petition.

Proceedings of the 2022 Presidential election petition at the Supreme Court of Kenya on August 31, 2022. [Photo: Zakheem Rajan]

Overview of the ongoing 2022 Presidential election petition at the Supreme Court of Kenya as of August 31, 2022. Photo credit: Zakheem Rajan

People’s views on these cases differ depending on their own views and interests, the opinion leaders they listen to, and their expectations of how a court should behave.

For example, of the 26.3% of respondents who said they were dissatisfied with the way the Supreme Court handled the 2022 presidential petition, 43.8% said one of the reasons was that the decision was not based on evidence or was biased; 11.3% cited outside interference or coercion and 32.8% bribery. And 18.2% said that they were annoyed because the court didn’t nullify the election.

However, 24% said that they were dissatisfied because the court was rushed or had insufficient time and 10% because the ruling used rude or dismissive language.

Those who cited time issues or language as one of the reasons for their dissatisfaction were a minority but they remind us of how public perceptions are informed not only by the substance of rulings but by how judges behave.

It also means that acts that have attracted public criticism – such as the chief justice and deputy chief justice&nbsp;<a href="https://www.pulselive.co.ke/news/local/ahmednasir-criticises-how-martha-koome-received-president-ruto-in-parliament/6dtt40t">lining up alongside politicians</a>&nbsp;to welcome President William Ruto to the opening of parliament in September 2022 – have helped to reinforce popular perceptions of a judiciary that is biased or liable to being bribed or intimidated.

<h2>The role of the media</h2>

High-profile and highly divisive cases, such as presidential petitions, receive much traditional media coverage of the&nbsp;proceedings&nbsp;and associated&nbsp;allegations of injustice.

This coverage places the Supreme Court in an almost impossible situation, earning the public ire of either the opposition (for example, the 2022 petition) or the government (for example, the 2023 gay rights association case).

Chief Justice Martha Koome meets Police IG Japheth Koome at the Supreme Court Building on February 13, 2023

At the same time, an increasing number of Kenyans gain their political news from social media either&nbsp;directly or indirectly&nbsp;by sharing online stories offline.

Traditional media are relatively careful about what they say about ongoing cases or judges – lest they be held in contempt of court or be sued for libel.

Discussions on social media are not as regulated. It has become commonplace for opinion leaders of different political persuasions to&nbsp;publicly attack&nbsp;the judiciary.

The allegations range from those likely to have some basis to misinformation. Views in 2023 are likely coloured by the failure of reforms to bring significant socio-economic change and by a cost-of-living crisis. In this situation, negative information is more likely to resonate.

This interplay of factors helps to explain why public trust in the courts is lower than in 2003 after years of reform and investment, improved judicial independence, and largely positive personal experiences.

The views and opinions expressed in this article are those of the author and do not necessarily reflect the position of Pulse as its publisher.

President William Ruto and Deputy President Rigathi Gachagua with Chief Justice Martha Koome and judges during the launch of the State of the Judiciary and the Administration of Justice annual report on November 4, 2022

According to 2021 data from the independent research network Afrobarometer, 16.9% of Kenyans had no trust in this key institution, up from 11.4% in 2003.

Kenyans don’t trust the courts - the main factors behind this trend

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Dr Gabrielle Lynch

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Kenyans don’t trust the courts - the main factors behind this trend