Saturday, 29 October 2011

ICJ Kenya: Student Duties

OK.  I am writing this late on a Friday night.  I was pondering what I should write about next.  There's been too much news about the Kenyan push into Somalia to root out Al-Shabaab.  At least in the media here (I'm not sure what it's like at home).  But, to be honest, it's slightly depressing, and it is really confusing.  So, I was really hoping to find something else noteworthy from my experiences here.  Sure didn't have to wait that long.

On Thursday night, I was pretty amped up about what Friday was going to bring, as a day at work.  It's not a feeling that comes around often, when work is associated with it, but, to be honest, I'm getting involved in more than a few things that are tickling my fancy.  Thanks to my work monitoring the Truth, Justice and Reconciliation Commission, not only am I hopefully going to continue that work, but I am starting to get involved in researching and writing on the incredibly complex issue of reparations for victims of human rights abuses.  Given the immensity of Human Rights issues that have occurred between independence and present-day, any reparations scheme for Kenya has to be done adequately and appropriately.  So I have volunteered to get involved in working out a plausible reparations scheme for Kenya's situation.

Despite how awesome that might seem, I am also stoked about this secondary issue that seems to have fallen on my lap - helping finalize and implement a Legal Aid scheme in Kenya.  Those of you aware of my past legal shenanigans will know that I spent 2 years working for Law Line, which was a subsidiary of Legal Aid Alberta (and has now been subsumed into it, among the many changes that have occurred).  Anyways, I am a big believer in Legal Aid initiatives.  And for those of you who know me, the only thing I like more than Legal Aid systems is STUDENT Legal Aid schemes.  So, imagine my delight when a coworker decided that he was 100% stoked on working with me to create a student legal aid framework for Kenya.  Call that a pet project.  We'll see how it goes.

Anyways, more on point, I was completely excited about what Friday held in store, and the fact that it was the end of a week and a great time to relax and plan for the future.  I should have taken the torrential rain as a sign.

When I walked into the office, and made my rounds greeting everyone, James, one of the Kenyan interns, asked me if I would like to accompany him to the High Court of Kenya to file a Notice of Motion.  Seemed like a great idea - tag along and take some pictures and get a feel for the Kenyan justice system at work.  Plus, it's something I have a close affinity for, after being a well-worked articling student, who had a fair share of Student Duties (any odd job, ranging from making applications in Chambers, filing documents, to ordering food for afternoon hand out sessions).  Sounded like a great experience, and besides, how hard could it be to file a document?

The current Court House in Nairobi is located in Milimani, across the street from the old Commercial Law Courts.  The new building is quite impressive:

The security system is also pretty good - they confiscated my camera, so unfortunately I was unable to visually record what happened once we got inside the building.

OK.  First I should let you know that a large portion of what follows is owed particularly to a poorly written email.  I think that probably would have saved us an hour of our time.  Maybe two.  But regardless, this is how things shaped up and shook down.

James, Frida and I left in the ICJ-Kenya van, to go to the Court houses to file a Notice of Motion with the Court.  What exactly the Notion of Motion was about isn't such a huge deal, but it is interesting nevertheless:  ICJ-Kenya was preparing an Amicus Brief in order to be an interested party and to provide expert commentary into the issue of immigration and refugee rights.  In particular, the organization has a good background in the rules and issues surrounding extradition.  So we were filing a Notice of Motion to have our time in court to argue why we should help in the extradition proceedings.

We entered the Court, not exactly sure where we should go.  Frida suggested we try the first floor Chief Magistrate's office.  We did.  I noticed on the initial walk-through that this was an incredibly nice courthouse. Far from the cement somberness of North American law courts, this was a vibrant building, with many windows, and open areas (which were later to become waterlogged, once the torrential rain started).  It was bright and bustling.  A legal bazaar.

The first place we checked was a long, narrow room, lined with metal bars, to separate the court clerks from the filing minions.  It was empty, almost sleepy.  The Chief Magistrate's Registry.  After a brief chat with an employee behind the bars, we were directed to go upstairs to the Magistrate Court Criminal, Civil and Traffic Registry office.

This registry office was architecturally identical to the Chief Magistrate's Registry.  Functionally, it was a bit different.  There were about 200 people jammed into the narrow space, jostling for position in front of the metal bars.  Not much different than trying to get a drink at a dance club frequented by all the frat houses.  I couldn't readily discern any particular organizational structure to it - you shoved your way to the front, and waved your document to be filed at the nearest clerk, who did his or her best to act as disinterested as possible.  James wiggles his way to the front, but gets told to move to the other end of the room, where those clerks are in charge of finding the case files associated with whatever you wanted to do.  More wiggling ensues.  People are remarkably pleasant, given that this is a court house, there's a lot of physical contact going on, and little privacy - we hear a man arguing with a clerk about his traffic ticket that he is trying to pay, but they are moving slowly, and he doesn't want to have to spend the night in jail for late payment.

Finally, James gets someone to take our Notice of Motion.  The guy walks away, and we wait.  And wait.  One hour later, the man reappears, and says (a) he can't find the file, (b) he doesn't understand what this Notice is for, and (c) that the file might be in the Old Milimani Commercial Courts, where some of the files for the Magistrate's Court are held.  The Old court house is across the street, so it doesn't seem like a big deal.

We walk across the street, assuming that this should be a bit easier, since there is less going on at the old court house these days.  We enter the registry office, and instead of 200 people, there's 100.  Ok, not bad.  Even better, James recognizes one of the clerks, as a classmate.  We jump from 100th in line, to first.  She finds a file with the same number as ours, but different parties.

Let me fast forward a bit, because the story becomes repetitive.  We go to a total of 5 different offices in the Magistrate's Court area.  Each time we wait, each time the service is dismissive, and each time people can't help us, and direct us somewhere else.

We're now it a slight panic. The last person we talked to told us that they didn't really want to help us, because it was almost lunch break, but directed us downstairs (back to the first place we tried).  It was time to improvise, or be caught in a vicious perpetual cycle in the offices of the Magistrate's Court.  We walked to the other side of the building, to the High Court.  Divine intervention!  The first person we bump into just happens to be involved in the filing department, just happens to recognize the case name, and just happens to be willing to help us out, before going on lunch.  Great!

We find out the following:

  • The matter is in the High Court, and not the Magistrate's Court.
  • The matter, while being labelled 'miscellaneous', is being dealt with in the Criminal Division, and not the Civil Division.
  • The matter is actually two separate matters.
  • The matter number that we have is wrong (for either matter), and regardless the numbers have been changed in any event.
  • The names of the parties on the matter are spelled wrong and are incomplete.
This is what I meant when I said that the email would have saved us a lot of time.  As it stands, we have some homework to do.  The friendly man gives us until 2pm to get back to him with the stuff.  He's leaving at 3.  The office closes at 4, technically, but it's Friday (I'm not sure if that really explains it, but that's what James tells me).  It's now, after all that, 1pm.  And it takes about 30mins to drive back to the office.  Great.   

Intermission:  While you imagine what kind of lunch I had, I noticed something else at the court house.  Tons and tons of paper, binders and books.  Relatively un-noteworthy, for a legal institution, you might think, but here's the interesting bit.  No computers.  When people look up a case, they grab a book the size of a medium bathroom mirror, and as thick as the fourth Harry Potter book, and leaf through it until they find the handwritten entry.  I ask why they haven't updated to computers (the technology is definitely available in Nairobi, and the Courts are not poor).  James tells me that the employees voted AGAINST technological upgrades.  They were afraid of losing jobs, and, more importantly, from the sounds of it, from losing the large financial bonus of bribes.  But that's an unverifiable, unofficial account of that issue.

Anyways, we arrive back at the court house at 3pm on the dot.  That's right, an hour late, exactly.  It took us 30 minutes to get back to the office, 15 minutes to make the changes and get the documents ready (and eat lunch), 30 minutes for the cab to arrive, and 45 minutes to get back to the court house.  When we get through security and back to our benefactor's desk, he is, of course, nowhere to be found.  The office itself seems like a legal parody movie - rows of wooden desks, stacked eye-high with files and documents, and in the middle of it all, court clerks reading the newspaper, listening to Christian music, or joking with each other.    There has been a lot of attention paid to hiring more judicial officers to help strengthen the judiciary, but I would think that this inefficiency itself contributes to the one-million case backlog and institutional frailty of the Kenyan Courts.  

Nevertheless, we find ourselves in front of a very unimpressed clerk, who, we are told, can stamp our documents for us.  Perfect.  OK, she says, first things first - proof of payment.  We don't have this, and, truthfully, we don't know how much it will cost.  Neither did the office secretary, who gave us 1,000KSh.  The total is 2,810KSh (it's double because the case was split into two actions).  We start to dig in our pockets, but she ushers us out.  We have to pay at the bank.  We go to the bank, and pay (we have, collectively, 75 shillings left between myself and James).  We get our receipts.  We go back.  No, we get sent to deliver copies to the court cashier.  No, we need 4 copies of the receipt.  No, there aren't any photocopiers here we can use, or even pay to use.

We run across the street to find a copier.  I look at my watch - 3:45pm.  We have 15 minutes before the Court closes.  We start running.  The Copying Shop is small and cozy, and very efficient (-25KSh).  We run back.

We wait in front of the Cashier's desk - which is located in the same Magistrate's Registry Office where there was the 200 person scrum earlier in the day.  It has quieted down now.  It is even easier to hear the man arguing with the clerk, still trying to pay his traffic fine, so he doesn't have to spend the weekend in jail.  We look through the peephole at the cashiers, who are standing around, chatting.  There are a stack of receipts waiting to be processed, and there are five other people waiting around with us, seething.  This is dead time.  No amount of cajoling can get the cashiers to work any faster (or work at all, in some cases).  4:00pm.  James catches the man's attention.  I don't catch what he says, but he manages to sound pleasant.  We get the receipt of the receipt.

We sprint back to the clerk's office.  It is empty.  Except for our lady.  The look in her eyes is even less friendly.  4:09pm.  She stamps the documents.  

We breathe.  It starts to rain.  We call our taxi driver, and when he arrives, a clerk runs out into the rain, asking if he can ride with us, making a point of reminding us how helpful he was for us.  A favor for a favor, right?  James slams the door shut and we drive off.  

We arrive back in the office at 4:45pm.  One day, one task, 6 hours.  Welcome to the practice of law in Kenya.


  1. holy cow. seems you have a good outlook on it! haha i wish you could have recorded it and made a short film, that would have been awesome

  2. Josh, i hope that some day, all that is gonna change..but atleast am glad the experience bore a story..


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