Courtroom Two and Courtroom One

(Based on a two-day visit to Nairobi in June 2013)

Malimani Courts, Nairobi. Fate leads us past a sign that says “Courtroom 2”. We decide to walk in and bow to the judge and the national coat of arms on the wall behind her. She does not show that she notices us. All we see is her head behind a high desk that cuts across the whole breadth of the courtroom. A Justice Being separated from the ordinary world. The registrar and the prosecutor are seated at a table in the middle of (and under) the judge’s wall. To the left of the judge, in the witness box, stands a police investigator. Across from him, detached from what is happening, sits a chubby man holding some papers: the accused. We learn that this is a case of a theft from a supermarket, allegedly perpetrated by attempting to buy stuff with a false credit card in September 2011. Defence counsel is cross-examining.

“So did you take possession of the goods?”, he asks the witness-investigator.

“We took a photo. They were perishable.”

“You did not answer my question: did you take possession of the goods?”

“We took a photo.”

“Please answer my question.”

“They were perishable.”

“Why can’t you answer my question?”

“They were perishable.”

“What did you do with the goods?

“We took photos”

“So you did not take possession of them?”

“They were perishable.”

“The witness is being evasive, your honour”

I feel a sense of relief as the judge is finally asked to intervene.

“I am not sure that he is evasive. Please continue.”

“Your honour, I do not see why he did not take possession of the goods.”

“They were perishable.”

“What is perishable?”

“Ahh.. “ the witness was not prepared for this.

“The witness is being evasive.”

The judge feels compelled to speak.

“The witness does not have to know what perishable is.”

“Your honour, I would like to ask for an adjournment. I need to familiarize myself with documents and would like to ask the prosecutor for a scanned copy of the photos, for a photocopy of the receipt of the goods, and of a record of the computer logs of the accused so I can assess whether that computer was actually used.”

The prosecutor slowly stands up and hands the defence council two photocopies. Then he says, with a hardly audible voice:

“Your honour, the scanned photo’s were already provided to counsel in November.”

The defence council continues. He looks at the photocopies and after having applied Bluster and Rule Invoking, he now throws out a Great Legal Principle.

“Your honour, my client must get a fair trial and I must know what documents the prosecution has in its possession.”

“Don’t you have them?” asks the judge, but she senses what is coming. Great Legal Principles never come alone.

“The prosecution cannot share documents selectively. There must be full disclosure.“

Fair Trial. Disclosure. Equality of Arms. There is a slight hint in the face of judge that she is annoyed. But I also see that she does not feel she can stand firm. So does the defence counsel. He goes for the kill.

“Yes your honour. It is essential for the defence of my client.”

What follows is some to and fro after which a date for continued cross-examination is set somewhere in July. The accused shyly steps out of the box. I can’t concentrate anymore. We leave; mystified and horrified. I feel like screaming.

“What the hell are you doing in that room? Where is the accused? What was the judge doing – or not doing? Why don’t we have a process where the accused and the supermarket-owner are brought together within two weeks after the occurrence to establish what happened and to come to a suitable remedy if fraud was established? What use is this to a business owner?”

Courtroom Two. Intelligent humans caught up in roles, processes and principles and completely missing the point. I would have entirely given up on my profession had I not seen a glimpse of Courtroom One the next day.

“One of the justice champions we will honour next week is a judge from up North.”

Chief Justice Willy Mutunga of Kenya looks at me with clearly readable emotion in his face.

“When he was transferred he found that he had to work in a completely dilapidated and cramped courtroom. So he converted his house next door into a courthouse with the help of the community. Can you believe that? His own house for justice! And he never told us!”

Courtroom One. Built in silence by an ordinary man and those he must serve. A place with justice soul. Close to the community and their problems. A House they can live in.

“Delivering justice must be a calling. It must come from within.”

Chief Justice Mutunga speaks with a conviction as hard as teak wood. Next week he will honour this man and 119 other Kenyan justice champions: cleaners, doormen, ushers, court administrators, and judges who have given justice delivery a human face and who have made it better. He stands at the helm of one of the most ambitious justice transitions happening today: changing Kenya into a Courtroom One.

How can we build more Courtoom One’s in the world? That’s the core question in our open innovation process on the future of courts: http://www.futureofcourts.org/strategies/ What we see: it takes constant innovation that is always, at its core, user based. Legal principles are hugely valuable tools societies developed to get better justice to citizens and their organisations. But keeping then end in mind remains essential. If we loose that, there is not future for courts.