Activist takes on CJ on virtual courts, Kiswahili usage
By Nancy.Gitonga, February 28, 2023
An activist has threatened to sue Chief Justice Martha Koome for revising High Court practice directions and rolling out measures that exclude court users from accessing in-person and physical services.
In a demand letter to the Chief Justice, activist Enock Aura says he is also aggrieved by the Judiciary’s failure to embrace use of Kiswahili as an official language in court proceedings, stating that judges and magistrates insist on use of English.
Through lawyer Harrison Kinyanjui, Aura says that even in instances where a litigant uses Kiswahili to answer charges or testify in court, magistrates and judges record the testimony in English without seeking the consent of the litigant, which is contrary to the Constitution.
“All cases in Kenyan courts are recorded in the colonial language (English). Whenever any litigant elects to answer charges or testify in Kiswahili, invariably magistrates and judges at all levels (and without the consent of the accused or pleader) unilaterally assume the position of an interpreter to translate and copy directly in English the evidence given in Kiswahili,” he says.
Language barrier
Aura claims that it is a violation of one’s constitutional rights for a magistrate or judge to record the proceedings in a language that a litigant said he/she does not understand well. “Any Kenyan in such circumstances is ultimately denied a record of the accurate evidence he gives directly in testimony before the court in Kiswahili,” says Aura. He has threatened to sue the CJ within seven days if no response is given.
The activist adds that the Judiciary also issues its public notices — online and outside court stations — in English. “It is imperative to inform litigants in Kiswahili language in notifications outside the respective court houses, in order to enable ordinary citizens involved in such cases to obtain complete, accurate and timely information regarding the listing of their cases and the manner of disposal or order of their cases. This will ensure transparency and facilitate easy access to judicial services for Kenyans,” he states.
Regarding physical services in courts, the lawyer says the High Court Practice Directions gazetted by the CJ on January 11, 2023, will exclude Kenyans from accessing in-person judicial services.
According to the lawyer, the revised directions were neither sanctioned by the National Assembly nor were they subjected to public participation.
In the Practice Directions on Standardisation of Practice and Procedures in the High Court 2021), the CJ issued guidelines on conduct of virtual hearings, such as how witnesses should be handled in a virtual court, production of exhibits, recording of proceedings and delivery of rulings and judgments.