Post date: Thu, Feb 29, 2024
Category: CourtJudiciary
By: Leo Kipkogei Kemboi,

Courts as Monopolies

Access to justice is fundamental in any democratic society, ensuring individuals can pursue their legal rights and seek redress for grievances. However, when courts operate as monopolies, it can have implications for access to justice. Monopolies have exclusive control or dominance over a particular market or industry. Courts are monopolies because they have sole authority and jurisdiction in adjudicating legal disputes and delivering justice. They possess significant power and influence over determining legal rights and resolving conflicts.

Article 159(1) of the Constitution of Kenya states that judicial authority comes from the people and is vested in and exercised by the courts and tribunals established under this Constitution, which implies that only the courts have the authority to hear and decide legal matters, which reinforces that courts are monopolies.

Article 159 of the Kenyan Constitution recognizes that excessive power in the hands of courts can lead to a monopoly. It establishes particular guidelines to direct the implementation of judicial authority, which encompasses ensuring fairness for all individuals regardless of their status, reducing delays in dispensing justice, advocating alternative conflict resolution techniques like reconciliation, mediation, arbitration, and traditional methods (conditional on sub-article 3’s requirement that traditional dispute resolution processes must not contravene the Bill of Rights; be contrary to principles of justice and morality or lead to results that are inconsistent with justice or morality; or be at odds with this Constitution or any statutory law). It emphasizes administering justice without an excessive focus on procedural technicalities and upholding the purpose and principles outlined in this Constitution. Courts acknowledging the possibility of monopolistic conduct underscores the importance of implementing measures to prevent hindrance or limitation of access to justice.

Article 160(1-5) of the Kenyan Constitution upholds the independence principles of the Judiciary. It asserts that in exercising judicial authority, the Judiciary, as defined by Article 161, is bound only by the provisions of this Constitution and relevant laws and cannot be influenced or directed by any individual or authority. Additionally, it guarantees security for judges’ positions and ensures their remuneration and benefits are provided from a specified fund. It safeguards against negative variations to a judge’s remuneration or retirement benefits. It also grants immunity to members of the Judiciary for acts performed in good faith during the lawful execution of judicial duties.

Article 161 of the Constitution of Kenya outlines the composition of the Judiciary, including superior court judges, magistrates, other judicial officers, and support staff. It also establishes key positions such as Chief Justice as the head of the Judiciary, Deputy Chief Justice as deputy head, and Chief Registrar of the Judiciary with administrative and accounting responsibilities for the Judiciary. It also grants the Judicial Service Commission authority to create additional registrar offices if needed.

Article 162 of the Kenyan Constitution outlines that the superior courts in the Judiciary comprise the Supreme Court,  Court of Appeal, and High Court. Parliament is tasked with establishing courts similar to the High Court for adjudicating employment and labor relations disputes and matters about environmental issues and land use. Parliament has been tasked to determine the jurisdiction and responsibilities of these courts (the extent of monopoly power). Any other lower courts are those established by Article 169 or parliamentary law. In light of these provisions, the courts in Kenya operate as monopolies with exclusive jurisdiction over certain matters. This monopoly of the courts means that individuals seeking justice must rely solely on these established courts and cannot seek alternative avenues for resolving their disputes.

According to Article 169 of the Constitution, the lower courts consist of various types such as Magistrates courts, Kadhis’ courts, Courts Martial, and any other court or local tribunal established by an Act of Parliament. These are separate from the courts created under Article 162. Additionally, Parliament is mandated to pass laws assigning jurisdiction, functions, and powers to these lower courts as per clause.

Implications of Monopolistic Courts on Judicial Access

The monopolistic nature of courts can have several implications for access to justice:

1. With courts operating as monopolies, there is limited competition in the market for judicial services. The alternative justice systems and traditional systems are not always appropriate for all matters and might not address the issue to the highest standards that the Constitution and its principles anticipated. Courts require legal representation because of research, oral arguments, meeting statutory requirements, and conforming the application before the court to meet practice rules and directions developed by the Judiciary. This can result in higher costs for legal representation and limited choices for individuals seeking legal assistance.
2. The monopoly status of courts can exacerbate existing wealth and resource disparities. Individuals with greater financial resources can better navigate the complex legal system, hire skilled attorneys, and effectively assert their rights. Most of processes including bail, bond, applications, legal research, fillings, and oral arguments require the resources. This is an important observation because it requires the Judicial Service Commission and judges to reinforce the requirements of Article 159(2).
3. The monopolistic nature of courts given that the Constitution has already predetermined the existence and functions of the court creates barriers to entry, making it difficult for new or alternative legal service providers to enter the market and offer more affordable and accessible options for individuals seeking justice. The very nature that the Constitution constrains what can be deemed as courts of law makes the courts monopolies which obligates the Judicial Service Commission, Chief Justice and all Judicial staff must exercise judicial power (monopoly power) in a manner that advances Constitutionalism, rule of law, and justice. Here, the Principles of Jurisdiction and bureaucracy of Courts requiring matters before other courts be finalized before they are before another court explains everything.
4. Courts may not face the same competitive pressures to innovate and improve their services as the sole providers of justice. Another factor that exacerbates this issue is that taxpayers underwrite the wages of the judicial officers, and there is no urgent imperative to finalize cases because their wages or promotions are not tied to efficiency of case resolutions.
5. The lack of competition and monopolistic control can result in inefficiencies within the court system. In Kenya, the main challenge is the problem of case backlogs. These backlogs can delay the resolution of legal matters, prolonging the time individuals have to wait for justice and increasing costs associated with litigation.
6. When courts operate as monopolies, there is an increased risk of bias and favoritism in the judicial process. These implications can disproportionately affect disadvantaged and marginalized groups, further exacerbating existing inequalities in access to justice. The monopolistic nature of courts can create barriers to accessing justice for individuals with limited resources and contribute to inefficiencies in the judicial system. Studies on the judicial system in Kenya have revealed biases. Choi et al. (2022) found that judges are 3–5 percentage points more likely to award co-ethnic appeals than non-coethnic appeals based on data on Kenyan criminal appeals and the conditional random assignment of judges to cases. Choi et al. (2022) employ word embeddings to examine the sentiment of written judgments to understand mechanisms, and they discover that judges write for co-ethnics more frequently using terms related to trust, which suggests that in-group favoritism drives co-ethnic bias in this situation.^[i]

What does Monopolistic mean for Access to Justice and Judicial Decisions?

Monopolistic courts can have negative implications for access to justice and judicial decisions. A judge has to use constitutional powers to create a level playing field for all parties involved in the case. Also, a judge has to show impartiality and avoid any conflicts of interest that could compromise the fairness of their decisions.

A judge has to understand that they exercise monopoly power and that monopolies affect access in four ways. First, monopolistic courts can restrict access to justice due to financial and rule barriers; second, monopolistic courts may lack the incentive to improve their services, leading to inefficiencies and delays in the resolution of legal matters; third, they can determine the volume of cases that can be heard (Parliament by failing to resource the Judiciary at optimal levels also contributes to this), resulting in backlogs and prolonged wait times for individuals seeking justice. Fourth, the lack of competition can increase the risk of bias and favoritism in judicial decisions.

In conclusion, the monopolistic nature of courts can create barriers to accessing justice for individuals with limited resources and contribute to inefficiencies in the judicial system.

EndNotes

[i] Choi, D. D., Harris, J. A., & Shen-Bayh, F. (2022). Ethnic Bias in Judicial Decision Making: Evidence from Criminal Appeals in Kenya. American Political Science Review, 3, 1–14. https://doi.org/10.1017/s000305542100143x

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