The administration of justice is facing a crisis. For the second time this year, the Judicial Service Commission has placed an advertisement in the dailies seeking to recruit 67 new magistrates. The day after the advertisement appeared, it was reported that only 15 of the 47 lawyers from private practice who had been offered positions as magistrates honoured their appointments. No reasons were given why the new appointees rejected the magistracy.

There are 254 magistrates in the country. 82 of them have been charged with alleged dishonorable conduct and been asked to leave the bench. They were named in the Ringera report on corruption in the Judiciary. If the response from the first advertisement for the posts is anything to go by, apprehension over the latest advert would be justified.

Professional competence and integrity in work performance vital

The March 21 advertisement invites applications for 17 positions of senior resident magistrates, 30 for resident magistrates and 20 for district magistrates. The candidates are required to be advocates of the High Court, holding a current practicing licence. They must not have any complaint against them pending before the Advocates Complaints Commission or the disciplinary committee and must have demonstrated administrative skills, professional competence and integrity in work performance and results.

Those seeking senior resident magistrates’ posts must have at least three years experience as resident magistrates or deputy registrars of the High Court or six years experience in private practice. Since one must serve as a district magistrate for two years before becoming a resident magistrate, the senior resident magistrate must have served at the bench for at least five years.

More than two-thirds of all civil cases are decided by magistrates

The starting salary for a senior resident magistrate will be Sh 19,000 a month and rise up to a maximum of Sh 30,000. Resident magistrates will earn a minimum of Sh 16,500 up to a maximum of Sh 27,000, and a district magistrate Sh 13,000 up to a maximum of Sh 23,500.

The magistracy is the backbone of the administration of justice. Nearly all criminal cases are tried by magistrates. And judging from the number of civil cases filed at the High Courts and in magistrates’ courts, one can estimate that more than two-thirds of all civil cases are decided by magistrates.

The magistracy traces its genesis in England where the king used to appoint people of good standing in the community to act as “Keepers of the Peace” in their locality. However, as the institution developed, lawyers were appointed to some of these positions and they came to be known as “Justices of the Peace”. Later, they acquired the title magistrates.

But in England, the magistracy has developed along a two-tier system. On the one hand, there are lay magistrates. These are citizens with no professional training who sit in a three-some and resolve civil conflicts or try criminal cases in the areas where they live. They are assisted by a trained court clerk who guides them on the requirement of the law. On the other hand, there are professional magistrates, otherwise called stipendiary magistrates. They are legally qualified magistrates who hold qualifications that entitle them to practice law privately.

For a long time after independence, the magistracy in Kenya was organized along these same lines. There was a lower cadre of magistrates who were lay men and handled the bulk of uncomplicated civil and criminal cases in magistrates’ courts. But they do not exist anymore. They were phased out by former Chief Justice Bernard Chunga and their work has been taken over by professionally trained lawyers. But not many people who take law as a career would go to the bench and decide civil conflicts between neighbors on trespasses and criminal cases involving disorderly drunks and happily earn Sh 13,000 a month.

Few professional lawyers with six years experience in private practice and who meet all the conditions set out in the advertised vacancies are going to contentedly serve as senior resident magistrates for a Sh 19,000 monthly pay. The very qualification for that position is a lawyer who, in a thriving economy, will earn a handsome living as a private practitioner.

Magistrates complain of lack of security of tenure, well-illustrated by the recent retirement of magistrates in the public interest without any requirement of a formal hearing as is required for judges. They complain of poor benefits, not being provided with houses or cars as is done for judges. It is not rare to see magistrates jump out of a bus or matatu, then duck the vehicles of lawyers and litigants whose cases they will be presiding over.

Unlike judges, magistrates are also subjected to frequent transfers. A man whose name I bear (and whom I often proudly announce served the lay magistracy for 44 years) was transferred to Kericho, Embu, Nanyuki, Nyeri, Kajiado, Muranga, Lamu and Malindi within a period of about 15 years. Not many young professional lawyers will agree to have their family life disrupted this way by a career.

Judges, on the other hand, are treated very differently. They have a minimum starting salary of Sh 300,000 a month, a hefty house allowance, a car, a police driver, a GSU bodyguard and two Administrative police guards round the clock.

The difference between a judge and a magistrate is becoming less clear as the Judiciary develops. The highest ranking magistrate has a jurisdiction of Sh 3 million, which only a few years ago was the preserve of judges. They are dealing with more and more complicated cases. They have the same training and qualifications and sometimes more experience. There is no logical basis for the disparity in terms of services between the magistrates and the judges. Magistrates are becoming judges in everything but name.

View of magistrates still the old one of lay practitioners

But our view of magistrates is still the old one: of lay people presiding over a court of justice. In fact, the terms of service of magistrates are based on this view. Only the salaries and other terms given to the lay magistrates have improved, rather than a totally independent review based on their qualifications and the realities of the legal profession.

England dealt with this problem by creating the office of the district or county judge. Though inferior to the High Court judge, the title reflects the professional qualification of the presiding officer. The terms are also commensurate with those qualifications.

The word magistrate has now been mainly reserved for three lay people who preside over a court in their locality and deal with small civil claims and summary criminal trials like common assaults, being drunk and disorderly, or threatening a breach of the peace. The registrars and deputy registrars of the High Court are also employed as professional registrars rather than magistrates acting in these positions.

As the Kenyan economy gets back on its feet, less and less professional lawyers will agree to join the magistracy and suffer the frustration and often humiliation of the positions. To avoid this catastrophe, the country will have to go back to lay magistracy and create a new court for the professional lawyers. These new courts, though inferior to the High Court, must enhance the professional and social dignity of a qualified lawyer acting as a judicial officer.