New Judiciary leadership’s role in promoting business growth

Tuesday, May 11th, 2021 00:00 |
Justice. Photo/Courtesy

Carole Kariuki  

The Judiciary is a key enabler of business, playing a critical role in the management and resolution of disputes and enforcement of contracts. These, in turn, have a direct impact on ease and cost of doing business. 

As such, the expected change in Judiciary leadership presents an opportunity for the business community to reflect on its relationship with the Judiciary and its leadership.

Such reflection will inform and reshape future engagements between the business community – particularly members of the Kenya Private Sector Alliance (Kepsa) – and the Judiciary. 

This is not the first time the two will be working together. They have made major contributions to judicial processes through the National Council on the Administration of Justice.

This has ensured stakeholders adopted a consultative approach in administration of justice and in driving reforms in the judicial system. 

Going forward, there is an even greater need to strengthen the ties. A seamless working relationship will go a long way in making Kenya competitive in attracting investment and driving creation of quality jobs. 

The legal profession has made important reform steps, particularly since the inauguration of the 2010 Constitution.

The journey is still ongoing and the business community acknowledges the role progressive judges have played in ensuring the gains are entrenched in jurisprudence. 

For instance, the commercial courts, especially between 2009 and 2010, did a commendable job in speedy conclusion of cases and precedent-setting rulings on insolvency of companies, taxation, copyright and other commercial matters.

Only a small fraction of the cases – less than five percent – were overturned by higher courts.

That can only mean majority of the rulings were solid and unimpeachable, which means Kenya is increasingly viewed as a place where commercial law is enforced robustly.

This tradition ought to be extended to other court divisions. And this is the challenge Kepsa will be looking at the new leadership to implement so as to improve the totality of the business environment.

One of the areas that calls for immediate focus are the unresolved cases — some involving business disputes and others on various forms of property and ownership rights.

The business community is keen to see what plan the Judiciary has to conclude the cases expeditiously. 

The expectation is that reducing backlog will also improve the efficiency of the courts.

Efficient courts create a reliable business environment, foster the building of strong judicial systems and processes which are pivotal for the rule of law and the attendant economic transformation that fuels growth in emerging economies.

Well-functioning courts are also critical in holding government institutions accountable, especially when in conflict with businesses on matters taxation, fair competition and protection of economic rights.

As Kenya progresses in reforming its legal and regulatory environment, a reformed Judiciary will push forward specific indicators that improve the country’s ranking in the ease of doing business index, making it more attractive as investment destination.

This could improve the business environment by ensuring all affected stakeholders have a fair chance of securing their interests.

Kenya has also made significant strides in contract enforcements, and development of a robust and well-coordinated Alternative Dispute Resolution framework through the work done by both the Judiciary and the Nairobi Centre for International Arbitration.

We expect the new leadership of the courts to power the far-reaching reforms consistently to improve the business environment for economic growth.

What the business community needs going forward is an assurance the Judiciary will foster a legal regime that promotes investment and contribute to economic growth to ensure the nation realises its social and economic growth target. — The writer is Kepsa CEO

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