Court monitoring
A quick guide by Mary Muthoni, Court Monitor, Kenya, Basel Institute on Governance
What
is court monitoring?
Court
monitoring refers to the process of observing and recording court procedures
and practices in particular cases.
Court
monitoring is primarily a diagnostic tool. It is used to assess an area of
concern with the aim of contributing to improvements in the justice system. You
might want to find out, for example, why some cases take longer than others and
at which stages of the court proceedings. Or you may wish assess corruption
risks that could be impairing the proper functioning of the criminal justice
system.
The monitoring
not only identifies problems, but gathers information that can be used to
develop specific evidence-based measures to solve them. In anti-corruption, these
measures might include:
- improvements to
policies, procedures or laws;
- guidelines to assist
court users (such as judges, magistrates, prosecutors or clerks) in doing their
jobs more efficiently;
- internal
controls to mitigate corruption risks in the court process;
- the provision
of targeted funding or training to fix resource or capacity gaps that are
hindering the justice process.
Court
monitoring can also be used to gather data to inform a routine update of
policies and procedures, or planning and budgeting for future court needs.
What
can court monitoring achieve?
The
specific achievements of a court monitoring project depend on the objectives
set. But well-designed projects have been shown to contribute to significant
improvements in laws and practice.
One example
is the Eyes in the Courtroom Kenyan court monitoring programme
focused on improving outcomes in wildlife crime cases. The programme was triggered by rising poaching rates, indulgent
penalties and legal loopholes.
Operating
since 2013, the programme identified crucial problems like trial documents
disappearing, difficulty in accessing court files and overly lenient sentences.
The evidence supported advocacy efforts which, in time, led to significantly
easier access to court files and the establishment of a specialised
wildlife unit
in the public prosecutor’s office. The conviction rate in relevant cases
reached 95 percent by 2019.
The
findings also contributed to significant changes in legislation. These include
the enactment of the Wildlife Conservation and Management Act in 2014, which
repealed the 1989 Wildlife Act and established harsher penalties. Amendments were
passed in 2019 to, among other things, introduce new offences like poisoning of
wildlife.
The court
monitoring also spurred increased collaboration, illustrated by the
establishment of an annual judicial forum for dialogue bringing together all
stakeholders involved in handling any aspect of environmental crimes in Kenya.
In
addition, the Eyes in the Courtroom reports over the years has resulted in a
valuable set of data on wildlife crimes and enforcement actions, which are used
by academics and conservation or policy organisations worldwide.
Models:
systemic, thematic, ad-hoc
The design
of court monitoring programmes differs according to the context, research
question, and time and funding available. Typically they fall into one of three
categories:
1. Systemic: This takes a broad, long-term
perspective that examines the wider criminal justice system – including the
conduct and impact of not just court users but others involved in the administration
of justice like the police. Despite the more comprehensive approach, there is
still a need to identify a priority area, for example the reasons for a case
backlog in criminal proceedings generally.
2. Thematic: This examines a specific category of
cases, a specific phase of proceedings, or a specific subject matter, or a
combination of these. An example may be examining corruption cases that have
been appealed or have a value over a specific amount, or looking at outcome
trends for environmental crime cases (How many were convicted? Acquitted? What
were the fines imposed?). An advantage is that it allows the court monitor to
dive deep and generate specific data which can later inform any required reforms.
3. Ad-hoc: Court monitors may be deployed as a
direct response to an event, for example court cases arising out of
post-election violence or war. This monitoring is more focused on informing
advocacy activities and seeking solutions to resolve these cases than identifying
where the systemic problems are. It may however highlight systemic problems.
The
ideal court monitor…
Ideally, a
court monitor should be fully independent and objective. Monitors often come
from civil society or non-profit organisations involved in efforts to improve
the justice system in a particular area.
Court
monitors should follow basic principles of:
- non-intervention
in the judicial
process or outcomes of a particular case;
- objectivity and accurate reporting in line with
clear practices and procedures;
- confidentiality, including no leaking of information obtained
from confidential sources and no release of court monitoring information prior
to review and analysis.
A
variety of information sources
Depending
on the research question, a court monitor may need to gather information from:
- physical attendance
at trials as an observer;
- case files and
related documents held in the court registry;
- public
documents issued by the judiciary and other relevant institutions, for example
practice guidelines, reports or manuals;
- media articles;
- academic
papers;
- best practices
or precedents from other courts and countries;
- conversations
and interviews with individuals or organisations with relevant expertise.
A court monitor
will often need to obtain authorisations and collaborate with individuals who
hold specific information that is not publicly available, such as confidential
case files or internal policies and reports.
Impact
and measurement
A court
monitor’s report usually provides the basis for recommendations to solve the
problems identified, for example through reforms to laws, new policies,
procedures and guidelines, capacity building or allocation of funding.
Impact will
therefore depend on whether and how well the recommendations are implemented. This
means a court monitoring programme needs to have a follow-up plan and
indicators in place. For example:
- measuring the
impact of a capacity building recommendation may focus on the knowledge and
actions of those trained as a result of the recommendation;
- measuring the
impact of new guidelines on granting bail could involve conducting another court
monitoring activity surveying judicial officers’ judgements and gathering
statistics on the number of suspects granted bail before and after the change.
Trust and
good relationships with the stakeholders in charge of evaluating and
implementing the recommendations are therefore essential, to prevent the report
being filed away and forgotten in a dusty drawer.
Impact may
be hard to establish in the short term, especially in the criminal justice
system where cases may take a long time to proceed through court. The longer a
court monitoring programme is in place, the more effectively it can measure
impact over time and ensure that reforms are sustainable.
Further
reading
