Giving magistrates more powers proper

On October 19, 2017, the Court of Appeal in an appeal filed by the Nairobi Law Society against the Malindi Law Society made a decision that has fundamental impact on the administration of justice in environment and land matters.

By way of background, when the country adopted the 2010 Constitution it created specialised courts at the level of and with similar status as High Courts to hear and listen to environment and land disputes. The operationalization of these have, however raised a lot of controversy.

It was only in the middle of this year when the Supreme Court clarified the issue decreeing that this Courts are at the same level as the High Court but have an exclusive and distinct jurisdiction from the High Court.

A huge problem that continued to exist relates to the spread of the courts and the impact of exclusive jurisdiction on the speed of disposal of cases. Initially the Chief Justice had issued directions for Magistrates Courts to also hear environment and land cases within their jurisdiction.

Others argued that this action was unconstitutional. In 2015, the Environment and Land Court Act was amended to give legislative basis for Magistrates Courts handling the cases.

In a case brought by the Malindi Law Society, the argument was held that Magistrates Court could not be given jurisdiction that the Constitution had given to Environment and Land Courts.

The Court of Appeal in its judgment held that the creation of Environment and Land Courts is at the level of the High Court. Magistrates Courts can and must still listen to such cases within their jurisdiction.

This decision is fundamental for ordinary Kenyans for several reasons. Firstly, the numbers of Environment and Land Courts and Judges are still few. While the law operationalizing the courts envisages a court in every country, there are several counties that still do not have such courts.

Without Magistrates Courts having the power to hear environment and land cases, such cases will be denied justice as those with disputes would have to travel o neighbouring counties to have their matters heard.

In a county where the citizens rely on land and natural resources. the existence of accessible and affordable mechanisms for resolving disputes relating to land is at the heart of enabling them enjoy their livelihoods.

Secondly, the framework for environmental management in Kenya envisages use of both civil and criminal approaches. Despite this the Environment and Land Courts do not have jurisdiction to deal with environmental crimes.

Without this decision by the Court of Appeal questions continued to be asked as to which court had the competence to deal with environmental crimes.

It is important that even as we celebrate this decision we acknowledge that courts are only one tool for solving environment and land disputes. Citizens have to rely on alternative dispute resolution measures. Several of these disputes are emotive and leave parties severely wounded emotionally.

Relying on negotiation, use of elders and other alternative measures may be faster and more satisfactory than going to Court. Last week, I had a discussion with a colleague who was relating experiences of those who go to court with basis disputes as how to solve lack of keys to a house. When one interrogates the matter deeply you find it is purely an ego issue which with a little humility and common sense, does not require court intervention.

In addition, our focus must be to improve the conservation and sustainable utilisation of land and the environment. This requires that litigation is seen in the broader management approach. This will allow enhancing awareness amongst citizens. With knowledge we will be able to reduce the number of disputes that find their way to court and consequently improve sustainability.

For the courts, time has come to consider specialisation at the magistracy levels too. Nothing stops the Judiciary from creating divisions dealing with aspects of disputes like has been done at the High Court.

This would enable magistrates handling land matters to be specialized and link much more closely with the Environment and Land Courts at the High Court.