Democracy through access to legal information for newly democratizing nations: The Kenyan perspective and lessons from the American experience

Government Information Quarterly

Volumn 22, Issue 1, 2005, Pages 108-121

  Gathegi, John N ^a  

^a FLORIDA STATE UNIVERSITY   (United States)

Author keywords

[No Author keywords available]

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EID: 13944279280     PISSN: 0740624X     EISSN: None     Source Type: Journal    
DOI: 10.1016/j.giq.2004.10.004     Document Type: Article

References (39)

1. The Mwai Kibaki government, which beat Mr. Moi in the presidential polls, embarked on a judiciary clean up exercise in October 2003 and named six judges of the Court of Appeal (the highest court in the land), 17 judges of the High Court, and 82 magistrates on charges of corruption and judicial misconduct and set up tribunals to examine the charges. This is probably the highest number of judges to have ever been suspended anywhere in the world. The Law Society of Kenya came up with its own 'List of Shame' that named additional judges not on the original list of the commission that had investigated the judiciary. These additional judges include three from the Court of Appeal and five from the High Court. If the Court of Appeal judges are removed, this would reduce the highest court in the land to 2 members, until replacements are appointed.
2. Lasser, Mitchel. (2003). Anticipating three models of judicial control, debate and legitimacy: The European Court of Justice, the Cour de cassation and the United States Supreme Court. New York: New York University School of Law, p. 4.
3. Lasser, p. 7.
4. Duncan Kennedy Freedom and constraint in adjudication: A critical phenomenology Journal of Legal Education 36 1986 518
5. Kennedy, generally.
6. Harry Edwards A judge's view on justice, bureaucracy, and legal method Michigan Law Review 80 1981 259-266
7. Owen Fiss The bureaucratization of the judiciary Yale Law Journal 92 1983 1442-1443
8. Lasser, pp. 30-31.
9. Lasser, p. 32.
10. Lasser, p. 35.
11. Lasser, p. 53.
12. Former Kenyan Attorney General Mathew Muli described this corruption as a cancer 2002 April 11 East African Standard
13. Professor Yash Ghai, a former Chair of the Constitution of Kenya Review Commission, included the absence of law reports among the reasons for the dissatisfaction with the state of judiciary in Kenya. This lack of published decisions has also been noted by other legal scholars, such as Mwige (Mwige, K. Nyaga. Unjust enrichment law and its scope in Kenya. (2000). Lawafrica.com. Available: http://www.lawafrica.com/Articles/go1.asp?file=nyaga.xml. Accessed September 28, 2004).
14. Environmental Law Institute. (2000, May). African environmental law and policy activity report. Initially, Kenyan decisions were published as part of the law reporting system of England. Later, when they were no longer being published in these series, practitioners would collect together some interesting cases and publish them through a commercial publisher, such as the East African Literature Bureau. Decisions are supposed to be published in the Kenya Appeal Reports, the Kenya Court of Appeal Decisions, and the Kenya Law Reports. None of these publications are current. Recently, there has been an initiative by the National Council for Law Reporting to resume publishing the Kenya Law Reports. This seems to be modeled after the Ghana Council for Law Reporting that produces Ghana Law Reports.
15. In the United States, Lexis-Nexis is one of the two major online legal databases; the other is Westlaw. Together, these two control almost the entire market.
16. Deya, Donald. (2001). Information technology issues in legal practice: An East African perspective. A Paper presented at the International Bar Association's African Regional Conference on the theme "Law in a Continent in Transition" Nairobi, Kenya, 25-28 March, 2001.
17. Deya, pp. 18-19.
18. John N. Gathegi The state and society: Intervention in developing countries Journal of the American Society for Information Science 43 4 1992, May 323-333
19. The Republic of Kenya. The Kenya Communications Act (No. 2 of 1998).
20. At the time of this writing, Telcom has a monopoly on international voice and data services. Communications Commission of Kenya. Regulatory framework for the communications sector in Kenya. Available: http://ccck.go.ke/lgislation/legis.html. Accessed January 16, 2004.
21. It is noteworthy that the Canadian International Development Research Council (IDRC) has provided a grant to the Communications Commission of Kenya for research and other activities leading to a national universal access strategy, including a Universal Access Policy. IDRC also provided a grant to the National Communications Secretariat to develop a comprehensive Information and Communications Technology Policy, which resulted in input to the National ICT Policy and the Information Technology Bill of 2002.
22. Computer Society of Kenya. Memorandum to the Constitution of Kenya Review Commission. Available: http://www.kenyaconstitution.org/docs/11d084.htm. Accessed January 16, 2004.
23. The figures are still modest, but country code top level domain (ccTLD) names .ke had increased to 3000 in mid 2002, up from 1200 in 2000 and 292 in 1998. Mureithi, Muriuki. (2002). Africa ICT policy monitor project: Kenya. Likewise, Hook and de Kock estimated the number of noncountry code TLDs (e.g., .com, .org, .net, etc.) at 5000 in 2002. Hook, F., & H. de Cock. (2000-2004). E-commerce in East Africa: Forecasts and prospects. BMI Johannesburg, South Africa: Techknowledge Group, p. 75.
24. The Daily Nation. (2003, December 16).
25. It is interesting that in spite of this apparent anxiety by the government to provide access to information, recent crackdowns on the tabloid press have drawn criticism of the government having a "retrogressive media law regime" that was characteristic of the Moi regime as well. See Namwaya, Otsieno. (2004, January 20). A case of oppressed press? East African Standard. Available: http://eastandard.net/headlines/news20010404.htm. Accessed January 20, 2004.
26. Marc Galanter The legal malaise: Or, justice observed Law and Society Review 19 1985 537-545
27. Kennedy, Bruce. Creating and disseminating law in a democratic society. Freedom Paper No. 7. U.S. Department of State International Information Programs. Available: http://usinfo.state.gov/products/pubs/archive/freedom/homepage.htm. Accessed January 21, 2004.
28. Republic of Kenya. (2000). Poverty Reduction Strategy Paper (2001-2004) Chapter 5: Key national issues and challenges.
29. Asian Development Bank. (2000, Report). Law and Policy Reform at the Asian Development Bank.
30. Asian Development Bank, p. 3.
31. Asian Development Bank, p. 3.
32. Asian Development Bank, p. 44.
33. See, generally, Michael Schmier v. Supreme Court of California (Case No. A015877). Appellant's Opening Brief.
34. Lawrence M. Friedman A history of American law 2nd. ed. 1985 Simon & Schuster New York 112
35. Barr, Melissa. (2003, January). Democracy in the dark: Public access restrictions from Westlaw and LexisNexis. Searcher 11 (1).
36. Some developing countries have already started tackling the issue. In May 2004, the author traveled to Santiago, Chile, under a Fulbright Senior Specialist grant to advise the Organization of American States' Judicial Studies Center of the Americas in their development of the Legal Virtual Information Center. This center will provide public access to legal information from the different member states, all on one Web site.
37. Anthony Wilheim Democracy in the Digital Age: Challenges to political life in cyberspace 2000 Routledge New York
38. This seems to be working well, for example, in Nigeria, where law reports are published in the official gazette, as well as in other publications.
39. In 2000, a group composed of legal students and professionals started Eastafricanlaw.com, an online service designed as a "free" legal information resource. Even though free, it is doubtful that it will be able assemble enough resources to survive competition from the commercial lawafrica.com.