Saturday, October 20, 2012

State of Judiciary, Mashujaa Day and other things

State of the Judiciary Address by the Chief Justice
The Kenyan judiciary has been in continuous existence for over 100 years and its history and that of the day we celebrate, the 20th October, formerly Kenyatta day now Mashujaa day is part of the legacy of the judiciary.    A day before Mashujaa day, the Chief Justice delivered the first state of the Judiciary Report of Kenya.   The report is here.  This report I think marks another milestone in a break from the past and looks to the future. If there was any doubt that the judiciary is transforming the evidence is there for all to see.   It is easy to focus on negative issues which have no bearing on the delivery of justice but as the report shows, there is real evidence of improvement in the steps in access of justice and delivery of justice.   The report provides, for the first time in the history of Kenya, a wealth information on the judiciary, for example;
  • ·      Summary of cases across all the court for all the year under review.
  • ·      Complaints attended to by the Judiciary Ombudsperson.
  • ·      State of physical infrastructure and ICT.
  • ·      Human resource management.
  • ·      Finance and resource development.

Kapenguria Six, Dedan Kimathi
The National Council for Law Reporting has posted on its website, the Kapenguria Six appeal judgment and the Dedan Kimathi judgment. Kimathi's trial was conducted under the  Special Emergency Assize Courts established in 1952  to hear Mau Mau capital cases. The Chief Justice  of the Colony, Sir Kenneth O'Connor, presided over the trial. The Courts were part of the Supreme Court (the High Court as it then was) and they were  designed to greatly expedite emergency cases. The Special Emergency Assize Courts began operations from April 1953. From then until December 1956 the Courts tried a total of 2609 suspects on capital charges relating to Mau Mau offences in 1211 trials.  After 1956, a smaller number of cases continued to be heard until the end of the Emergency in January 1960. The Special Emergency Assize Courts convicted a total of 1574 persons, all of whom were sentenced to hang. Of these, a total of 1090 persons, all male, went to the gallows for Mau Mau crimes.  See my earlier post on 'Thought for Madaraka.' As a historical fact the use of the death penalty in Kenya at the time was unprecedented.

Mashujaa day reflection
I attended a memorial service for Mr Zulfikar Alibhai, an advocate of the High Court, who passed away suddenly, last week.  This caused me to reflect on what Mashujaa day means for us.  Our independence day heroes delivered an independent nation, the second liberation had it heroes who delivered the Constitution and with is a robust democracy which me must now build and protect.  We must remember these heroes and their sacrifices, honour them and tell their stories so that our children never forget where we came from.  Today, we have people from all walks of life, who are building this country, brick by brick through their sweat and blood.

I did not know Zul that well but a week or so before his death he spared a Friday afternoon out of his busy schedule, to attend a Court Users Committee meeting for the Constitutional and Human Rights Division of the High Court.   From the speeches I heard from relatives and friend, he was passionate about his work, the law and in his own way he contributed a brick to the building of a new Kenya.  Rest in Peace Zul Alibhai.

Saturday, August 18, 2012


It is with the greatest pleasure that I return to the Law Society of Kenya today: first, as a member, then as a past officer whose colleagues gave the privilege of leading it, and now, as one who is privileged to have the Society as a partner in re-establishing the Rule of Law in our country.

My invitation to speak here could not have come at a more fortuitous time – a time of great hope but also a time requiring great effort.

The Law Society of Kenya is no stranger to great effort in pushing for the Rule of Law. Over the years, the LSK has played a leading role in upholding constitutionalism and challenging oppression and lawlessness.

The LSK and its members have repeatedly been a key component of the forces of liberation in our country. The first frontier of this struggle was opening up the Judiciary and the Bar to all Kenyans in the 1970s. In the 1980s and 1990s, the LSK Council conquered the second frontier by demanding the registration of other political parties besides Kanu.

Countless times, LSK members drew the line that first halted and then reversed the tides of repression under various regimes. In 1991, at the height of the repressive Moi years, Aryeh Neier, a lifelong human rights defender and Chair of Human Rights Watch at the time, wrote in an admiring article:

“What accounts for the dedication of so many Kenyan lawyers to the human rights cause? First, there is the relative prestige of the legal profession. Their status gives them more latitude than is enjoyed by others and ensures that their persecution will not go unnoticed. The other explanation, I believe, is that a few remarkable individuals inspired their professional colleagues. Gitobu Imanyara’s magazine, the Nairobi Law Monthly, enabled the Kenyan legal profession to speak to a broader public that cares about matters of democracy and human rights. In the process, the lawyers acquired a sense of their own responsibility to champion these causes, a burden they seem willing to bear.”

Twenty years later, I still hear the ringing call to service in the new Constitution. This is the new frontier. New responsibilities are upon us, and we have assumed new burdens. It is not accidental that appointments into many public positions – in the Judiciary, the State Law Office and the Directorate of Prosecutions, as well as in independent commissions on security, elections, rights, and the media -- require one to be an advocate of good standing for a number of years.

The LSK’s exemplary past is, however, not enough. After liberation, vigilance is just as necessary, if not more so.

Besides merely occupying positions, I see an urgent priority for members of the LSK to achieve the full implementation of the Constitution. The Constitution is the product, in no small part, of the great exertions of, and sacrifices by, the LSK membership. This membership cannot pretend indifference when it comes to the implementation of the Constitution. Its membership cannot be party to ill-disguised maneuvers designed to subvert the new constitutional order and defeat the genuine aspirations of the Kenyan people.

More than any other section of our society, we are the officers of the Constitution and the foot soldiers for the changes it brings. The completion of the several transitional steps and the progressive and irreversible fulfilment of its prescriptions are fundamental if we are to give meaning to the whole Constitution.

We shall disagree, as we must, about the best way to implement the Constitution. But dissent is what adorns democracy with beauty and grace. And dissent is not about petulant disagreement and petty rebellion, but rather an expression of principled differences. The elegance of debate is not to be found in the volume of noise but in the depth of knowledge. Ultimately, it is reform alone that will give life to the aspirations of all Kenyans – as the Preamble states – for a government based on the essential values of human rights, equality, freedom, democracy, social justice and the Rule of Law. This burden is our natural professional burden. It is also one of the statutory aims of the Law Society: “To protect and assist the public in Kenya in all matters touching, ancillary or incidental to the law.”

The call of duty is all the more emphatic because the subject and value found most widely in the Constitution of Kenya is justice – its institutions, its personnel, its administration, and the redress and protection it offers to every person in Kenya.

The duty commands are found in Chapter 10 on the Judiciary; Chapter 15 on the various Independent Offices and Commissions. More are also outlined in Article 156 on the Attorney-General, Articles 157-158 on the Director of Public Prosecutions and Articles 243-247 on the Police. Chapter 17 on the Enforcement and Construction of the Constitution; Article 10 on the national values and principles of governance; and, hugely, Chapter Four, the internationally admired Bill of Rights, provide an umbrella of duties and responsibilities that call lawyers to action.

The Constitution is a frame of reference not just for those who go to court, but for every lawyer. The realisation of the aims and objectives of the Constitution and its provisions depends upon every part of the legal profession – judges, magistrates, advocates, university academics, law school teachers, investigators, prosecutors, advisors, para-legal workers, court staff, private practitioners, in-house lawyers, State counsel, State officers -- and upon their professional associations and bodies, including, principally, the Law Society of Kenya.

I see a joint responsibility for the Judiciary and the Law Society of Kenya to set the foundations for a jurisprudence of social justice and human rights. Our joint task is to create and enrich that jurisprudence – a robust indigenous, patriotic and progressive jurisprudence as commanded by the Constitution and the Supreme Court Act. These instruments specifically expect the Judiciary, the Academy, the Bar and think-tanks within civil society to develop jurisprudence.

The Judiciary is now filled with women and men who are technology-savvy, computer-literate and predisposed to continuous learning. All judges now have access to a legal researcher. Going forward, I see a successful legal practice in Kenyan courts as hinging less on the artful mastery of clever tricks and more on detailed written submissions that can stand scrutiny and interrogation.

Now, more than ever, the Law Society has an obligation to help the Judiciary in its efforts to transform by matching the intellectual competence of the courts with scholarly acuity. Lawyers must read more. They must sharpen their research skills in order to help the Bench to arrive at the truth. And they must work harder.

Lawyers who are more experienced and qualified must take up the challenge to mentor and lead their colleagues. Ultimately, I would like to see a Bar where the title of Senior Counsel is not conferred only on the basis of age, but rather by relying more on competence, deriving from learning and experience. I would like to see younger lawyers rise to become Senior Counsel on the strength of their legal practice and the contribution they make to our jurisprudence.

Yet public confidence in the legal profession is not where it once was. Kenyans have demanded change through the Constitution, and made it clear that reform in the Judiciary without reform in the Bar, or vice versa, is illusory change – only another trick by lawyers. It is only by simultaneous reform in both the two serving sectors of the law that the whole legal profession can regain the confidence of the public.

Just as the Judiciary has begun to reform, so, too, must the LSK start extensive internal consultations, and then with other stakeholders and the public, to move to reform. The time to institute for reform in the Bar is now. We cannot pretend that all is well in the Bar - it isn’t!

The Judges and Magistrates Vetting Board, and the law that established it, are a process of both reform and rethinking inspired by the Constitution. Advocates have cheered on as the Vetting Board made its determinations. The Bar must accept that this is the new standard of accountability Kenyans require both for the Bar itself and the greater public service in the country. This goes beyond the existing mechanisms of the Disciplinary Committee and the Advocates Complaints Committee. The Judges have accepted this in their profession. So, too, must the advocates.

A large number of the complaints against judges showing up before the Vetting Board come from advocates, the LSK and its various chapters across the country. You should have no hesitation in forwarding genuine complaints. We judges always keep in mind what Mr. Justice Frankfurter of the U.S. Supreme Court said of that court: “We are not final because we are infallible. We are infallible because we are final!” So genuine complaints are a proper course to follow, and our judges and the Judicial Service Commission are responding to each of these, and will continue to do so.

But I have also been told of certain complaints that have come before the Vetting Board which, upon closer scrutiny, have been revealed to be only a cover for the negligence or incompetence -- or worse -- of the advocates involved. Such advocates are unwilling to admit their own errors, and they then ‘advise’ their clients that the decisions are due to the ‘corruption’, ‘bias’, ‘misbehaviour’ or ‘incompetence’ of the presiding judges. A complaint follows to the Vetting Board, supposedly ‘written’ by the aggrieved lay client, full of legal phrases and even Latin terms!

It is not acceptable that advocates should resort to bullying tactics in their zeal for their clients and subsequent fees. The vetting process cannot – and must not -- be used as a tactic of advocacy to exercise control over judicial officers. Many judges and magistrates have given their all in the service of the law and to the country, working under very difficult circumstances. Lawyers should be the last group of people to use the pretext of vetting to harass and intimidate them. This would not only be an adulteration of the process, but also a subversion of the course of justice. I have asked judges and magistrates not to entertain and succumb to this abhorrent conduct. Your membership must also be asked to cease it!

On the other hand, there has been a rise in complaints sent to the Advocates Complaints Commission, and the Disciplinary Tribunal. Numerous others are finding their way to the Judiciary Ombudsperson’s desk. Two examples are illustrative. An advocate in Nakuru was constantly seeking adjournments but misled his client that the file was missing from the registry. Another advocate entered a consent judgment to transfer the custody of a child to her father against the wishes of his client, the mother, and despite the girl’s claims in court that her life was in danger. These cases have been forwarded to the LSK, but there is still no response.

I am reminded of the Swahili proverb – Nyani haoni kundule!

For the Law Society to bear its new burden with grace and decorum, its members must transform themselves and their professional body in a manner that responds to the demands of the Constitution.

The lie of the land has changed so irrevocably that it is doubtful the advocacy of yore will continue to subsist for much longer. If the stock of your legal practice rests in the ability to intimidate judges and magistrates, cashing in political debts and other networks of patronage, you will need to change professions. If using legal technicalities, jargon and loads of Latin as a fig leaf to cover professional competence gaps, integrity deficits and intellectual sloth, you will soon be exposed.

The Judiciary is becoming more competent and more confident by the day. For advocates to win cases before this Judiciary, they will need to work hard at research, not just of the law but of many other disciplines, embrace the use of expert witnesses, and technology.

Although members of the LSK occupy a special place in the justice system as a critical link between the courts and those who use their services, the Constitution also recognises and provides for individuals or groups to represent themselves.

If advocates are to continue enjoying the trust and respect of the society, they must provide real value that cannot be obtained anywhere else. The Law Society must embrace public legal education and vigorously promote legal aid. Its members must commit to serve the public good and further the ends of justice rather than become experts in obtaining adjournments and injunctions.

Lawyers must adhere to the code of conduct that puts distance between them and the technician of the law around the corner shop; and they must be ready for more public scrutiny of their practices.

Under the new Constitution, the bar of public morality has been raised, and the frontiers of public disclosure greatly enhanced. Whereas I completely understand the principles behind advocate-client relationships, I recognise that there is need to debate and rethink the manner in which lawyers establish client accounts.

Furthermore, it is no longer tenable to run an open market economy and still insist on cartel-like behaviour. We must awaken to the fact that the principles that undergird competition policy and law demand open market operations in the determination of price. Increasingly, I am receiving representations from the public, corporate citizens and interested groups that are solidly based on the constitutional principle of public participation requiring debate on the Advocates Remuneration Order. I am no longer able to make these orders quietly without regard to public voice and what constitutional requirements that privilege disclosure and public participation. Debate on these issues is not only healthy, but also necessary.

As Chief Justice, I deeply value a Bar that provides constructive engagement and criticism. Such criticism must, however, not just be habitually uni-directional or perpetually self-serving.

The scorched-earth policy witnessed recently in serving up criticism on the Judiciary injures the Law Society of Kenya just as it hurts the profession and undermines the practice of its members. When the Rule of Law fails, the Bench might be blamed, but so too, is the Bar. In the end, the two must remember that they are in this together.

Mahatma Gandhi, himself a lawyer, once said that strikes are an inherent right of working [women and] men for the purpose of securing justice, but they must be considered a crime immediately there is the acceptance of arbitration. When lawyers refuse to engage in legal processes for resolving disputes and instead resort to boycotts, strikes and actions that border on criminality -- such as forcibly preventing litigants from accessing courts – it is doubtful that they are serving the rule of law.

Judges continue to receive communication from lawyers that is manifestly discourteous, and even perhaps containing defamatory language. One is left questioning the objectives of such conduct, and wondering if there is some internal mechanism for ensuring professional courtesy.

Even with the problems outlined, I would still like to pay tribute to the Law Society of Kenya for being a true partner of the Judiciary in the delivery of justice. The LSK has similarly continued to play a critical role in unlocking obstacles to access to justice through its participation in the Court Users Committees around the country. In the days to come, we hope to deepen this partnership and make it more meaningful.

The Judiciary is introducing the Kenya Inns of Court as a site of collaboration between the Bar and Bench to improve the quality of justice and jurisprudence. It is also a joint social responsibility venture to promote greater public understanding of the principles of the Rule of Law, the enhancement of good governance and sustainable development.

Those of you in Mombasa may have already participated in or heard about the workings of the Kenya Inns of Court as a think-tank of sorts on legal issues. We hope to replicate the system all over the country, publish position papers from the discourses, and set up a national secretariat for coordination.

Additionally, the Office of the Chief Registrar has set up an electronic practising certificate issuing system capable of processing all your certificates -- 6,000-plus -- in a day. An online Court Fees Calculator will take away the human hand from the assessment of court fees, and a Pending Cases Form has been developed for lawyers and litigants to complete and return in order to help the Judiciary to update its database.

You are also now familiar with the Ombudsperson in my office. The office is supported by a service desk with modern physical and electronic trouble-shooting capabilities. I urge you to embrace these innovations and deploy them in eliminating the bottlenecks we continue to encounter in the administration of justice.

Finally, vetting, or any corrective process within the Bar that seeks to address the past, must be accompanied by the LSK crafting the equivalent of the Judiciary Transformation Framework to chart the future. It must encompass all parts of the advocate’s profession: re-examining university curricula and postgraduate training, the passing on of the abstract traditions of the Bar, the systemic correction of aberrations, the raising of standards, internalising ethics, emphasising etiquette, increasing respect to the duties owed to clients, restoring the respect of the public in the advocate’s profession. The Judges and I would be greatly pleased to share our experience in the drawing up of such a programme. Such consultations should move on to institutionalise greater collegiality between Bench and Bar, in the enlargement of that desired jurisprudence of social justice and human rights and respect.

Thank you.

Dr. Willy Mutunga, D.Jur, SC, EGH.



Monday, July 16, 2012


Mr President, Ladies and Gentlemen
On my own behalf and on behalf of the Judicial Service Commission, which I chair, I am pleased to present to you these 11 women and men of distinction  who shall serve henceforth as judges of the Employment and Labour Relations Court.
They have emerged from the usual highly competitive and meticulous selection process by which the Judicial Service Commission has distinguished itself. They enjoy the same status as judges of the High Court and have, therefore, been weighed and measured on the same scales used to assess the suitability of their colleagues.
Every time the Constitution spells out something that seems obvious, it is because we previously convoluted the simple and made nonsense of uncontestable truths. So, for the avoidance of doubt, labour relations have been included in our Bill of Rights. The framers of our Constitution decreed the creation of a specialised court for employment and labour relations not just for good order and administration, but to guarantee the rights it bestows on those in the labour sector as employers, employees or regulators.
For the first time in our country’s history, the Employment and Labour Relations Court will be located in the Judiciary and shall fall under the purview of the Chief Justice. It shall enjoy independence while arbitrating between employees, employers and the Executive, while benefiting from the financial and accountability systems within the Judiciary.
A perceived lack of independence on the part of the court has resulted in tumultuous and sometimes disruptive disagreements between various role players in the labour sector.
The Employment and Labour Relations Court will deal exclusively with industrial relations, which have continued to grow in volume and complexity over the years. While the establishment of the Employment and Labour Relations Court is a welcome relief, easing pressure on the High Court as it does, it is important to appreciate our changing circumstances and the likely increase in employment-related litigation.
Only a few years ago, the Industrial Court would receive 500 cases a year, heard by between two and five judges. In recent times, the number of cases has risen dramatically to 2,000 a year. At the full capacity allowed under the law, the 15 judges of the Employment and Labour Relations Court would be required to hear slightly over 130 cases.
The Judiciary will ensure that the judges sworn in today and in the future will receive sufficient exposure and training to enable them to address the emerging issues and create a new jurisprudence in labour law.
Kenya has stated its intention to create a globally competitive and prosperous nation with a high quality of life. People and their labour are critical to the realisation of this ambition. Our social development must also be measured by how far we go in realizing our Social Economic Rights as spelled out in Article 43 of the Constitution. Stabilising industrial relations by arbitrating fairly and expeditiously in employment disputes could contribute building social security in Kenya. I appeal to the judges who will preside over this court to exploit the alternative dispute resolution mechanisms set out in the law to the full, and only engage in adversarial processes as a last resort.
The cases that require this court’s attention are spread all over the country. This court can no longer be characterised by its central tendency towards Nairobi. The Employment and Labour Relations Court shall be located closest to where it is needed, close to hubs of industry and employment where it can adjudicate the issues before it with knowledge and sensitivity. That is why Mombasa, Kisumu, Eldoret, Nakuru and Nyeri will be natural starter stations for this court.  Going forward, more courts will be established where they are needed.
Finally, I acknowledge that new things can be scary. The establishment of an Employment and Labour Relations Court is not likely to be different. Those who may feel apprehensive about these changes should take comfort in the clarity that the Constitution provides on labour relations. We are fortunate to have several members of the former court as members of the new Employment and Labour Relations Court.  The blend of institutional memory and fresh blood should spur this court to seize the challenges our unique environment presents and tackle them forthwith.
I wish to end with an appeal to all stakeholders to work with the Judiciary to get this court to a flying start, and devolve to the places where it is most needed.
Thank you.


Wednesday, June 27, 2012

Chief Justice Welcomes Legal Researchers.

Colleagues and Friends of the Judiciary, Good Morning
You are all my colleagues. I am very proud to see you.
Welcome to a transformative Judiciary. You are an important component of this transformation. You should be proud of the fact that you constitute the very first generation of legal researchers in the history of the Kenyan Judiciary! But this place of pride comes with its responsibilities: as trail blazers, the standards of legal research, the bar for personal and professional conduct that you set will have far reaching implications for the future generation of researchers – and the Judiciary. So, as founding mothers and fathers of legal research in Kenya, you must discover your mission and either choose to fulfill it or betray it. If we see improved quality in legal decisions and opinions, then we shall conclude that those opinions and decisions are the imprimatur of your versatile and creative legal minds. If we see the opposite, it will be natural evidence that the legal researchers in Kenya have lowered the quality of jurisprudence in the country. You shall have betrayed the mission. Make your choice.
Some Critical Reading Material
You will be given three documents that will give you part of the orientation of the institution you have just joined. These documents are two papers I have read that address the critical issue of a robust, indigenous, patriotic and progressive jurisprudence that is pegged to our progressive constitution. The elements of the jurisprudence we intend to create are discussed. I need to add that the question that I am yet to address in detail is how this jurisprudence will be related to the establishment of special courts that have the status of the High Court, namely, the Employment and Labor Relations Courts and the Land and Environment Courts. What I can say at this stage is that these courts, within the rubric of the jurisprudence I have articulated, will mitigate the relations of production in Kenya in the land and production sectors to achieve the vision of the constitution. This vision is clearly one that decrees that Kenya builds a social democratic economy and a basis of its sustainable and democratic development. The focal point will be the constitution with progressive common law and statute law being interpreted to reinforce that vision.
The third document is our Judiciary Transformation Framework launched on May 31, 2012. You must read this blueprint. Your loyalty to the transformative judiciary will be judged by your loyalty to the constitution and this framework
I want you to start analyzing these critical readings and give us comments after you have thought through them, conference, and carried out necessary research on the issues raised. I recall it was Mao Zedong who advised that if one has not investigated an issue, one has no right to be speak or be heard! This is your first assignment as Research fellows in the Judiciary. You will hand in your comments when you are ready to Professor Joel Ngugi, the Head of Transformation Secretariat. This may be the time for you to form study groups so that you can work collectively and develop the culture of collegiality and collective intellect.
In one of my papers I discuss briefly your role in the creation of the jurisprudence I have referred to. I am sure this is a challenge you will take seriously the hurdles put along your way notwithstanding.
In one of my papers I also address in some detail our vision of the Judiciary Training Institute hosting this induction course. It is our institution of higher learning, training, brainstorming, and the nerve centre of our progressive jurisprudence. I advise you to have keen interest on what goes on at JTI and offer your expertise and intellectual talents to this institute.
Career Paths
Your positions as Legal Researcher launch you in a career trajectory that has numerous cross-roads two of which are prominent. You may want to pursue an academic career or a career in the Judiciary. Your position will prepare you for all these various options. I am sure those who excel will find opportunities for further learning here or abroad. You are definitely going to be taken through a culture of thinking, reading and researching in a historical, socio-economic, cultural, and political contexts of not only Kenya, but also the Eastern Africa region, Africa and the world at large. We will make you take your Social Foundations of Law seriously! We will also allow you to pick areas of specialization and interest so that you can broaden and deepen your knowledge of these areas. In my view our constitution shuns staunch positivism. You will, therefore, historicize, interrogate, and problematize the various schools of jurisprudence in search of the jurisprudence we have to create. I have in the papers indicated how we need to regard foreign jurisprudence. While we will still study it we will do that within our contexts and needs. We intend our jurisprudence, based on the most progressive constitution in the world to be one to be exported to the rest of the world as a beacon of the change we must have in the world.
At the end of the day, all you will have to ask yourself is how and to what extent you have contributed to a judgment that has become highly acclaimed in the country, the region and the world. Did you play a pivotal role in the export of our progressive jurisprudence?
Relations with Judges
I have no idea how judges will relate to research fellows. You are the initial guinea pigs. I have taken this opportunity to give some of the ingredients of the role you are supposed to play. You may use my authority on what you are supposed to do to resist any oppression that comes your way! Judges are not your pupil masters but your colleagues. They are your mentors, but you should also mentor them. I expect mutual respect in your relationships with judges. The judges will initially lay down the perimeters of this relationship, but it is a relationship that will be negotiated and that is based as I have said on the loyalty to the constitution, the Judiciary and its JTF. You must occasionally share your experiences on how you are being treated. Some judges I am sure will go to the extent of allowing you to draft decisions for their perusal. Others will be horrified that you should be allowed such leeway. We will end finding a great balance that is bigger than all of us; and that is loyal to our progressive jurisprudence.
Despite the job title, your work as Legal Researchers is more than researching. Depending on the judge you will be working with, it will include a broad range of duties including preparing the judge for the case including preparing bench memos; managing the judge’s docket; researching and writing memos on specific aspects of cases; handling correspondence; and drafting orders and opinions; and verifying citations.
Let me also tell you what you are not! You are not Judges or Assistant Judges. The analytical rigor, rationale and soundness of judgment squarely remain the responsibility of the Judge to whom you will be attached. Your role is to add value to the work of a Judge as a researcher by filling research gaps a judge would not normally, owing to the heavy schedule of work, comprehensively attend to.
You are not Personal Assistants to the Judges you will attend to. Your remit is not to attend to the personal or extra judicial requirement/needs of a judge to whom you will be attached. Your work is strictly professional and research related. The non-research related needs of a judge at work are the sole responsibility of my office and that of the Chief Registrar. In this regard, and perhaps to put it crudely, you are not briefcase carriers for judges. You are the locators, sifters, synthesizers, and analysts of intellectual, jurisprudential, constitutional, and legal literature and judicial authorities as instructed by the judges. Of these latter, (literature and judicial authorities) you are definitely carriers.
You will be availed the Judicial Code of Conduct and Ethics and you must comply with its letter and spirit. Sexual harassment must be reported as soon as it occurs.
The Code, Articles 10 and 232, and Chapter 6 of the Constitution are clear on the values that we must exhibit and reflect. There are clear consequences for violations of the values. It is important to internalize these values, live by them and holding colleagues to account on their basis. This is another area the Judiciary could be the teachers of the entire country, a beacon for integrity and leadership that this country sorely craves for.
Divisions in the Judiciary
It is common knowledge that the Judiciary has divisions based on ethnicity, nepotism, religion, race, region, gender and generation. I hope you have not been recruited to any of these groups. I have sworn to dismantle these divisions and I definitely shall. Our institution must teach other institutions in our society what the constitution decrees about nationhood and our progressive diversities. Judicial reform is about societal reform and we must not lose sight of this objective.
The Youth are in control
For those of you who are youths you will soon find out that the youth are in control of vital pillars of judicial reform. Let us know what you can do better and you will be encouraged to grow, to be innovative, inventive and proactive. The Judiciary is now a hotbed of creation of new knowledge through rigorous critique of the pillars of the status quo. There will be resistance no doubt, but I am convinced the options for us are either we transform or perish.
We are still thinking through how we will coordinate your critical roles in the judiciary. The Supreme Court will soon be recruiting clerks so those of you who will work with the Supreme Court will work closely with our clerks. The Supreme Court will coordinate the activities of our clerks and research fellows collectively.  The other courts will discuss the issue. You will definitely be consulted. I urge you to think through what effective coordination will look like.
As legal researchers for judges, you will be required to conduct yourselves with uttermost professionalism and confidence. You must resist the temptation to leak pending judgments, or lines of inquiries, or decisions before they are delivered. Trust and confidence are the soul of being a legal researcher for a judge. We shall treat very harshly- and in fact criminalize- these tendencies that undermine not just the trust among colleagues but also the Rule of Law.
National Council on Law Reporting
Judge Professor JacktonBomaOjwang, Judge of the Supreme Court will talk to you about your roles in reporting decisions by your judges that will ultimately be carried in our Law Reports. The CEO of the Council will also talk to you about this critical role you must play. This role is of course linked to the creation of our progressive jurisprudence.
Ruthless criticism
Finally, I want to tell you that some of us come from a tradition where ruthless criticism is glorified. Speaking for myself I will be delighted to get comments on the speeches, think-pieces, newspaper articles that I have authored. We have a vision for a transformative Judiciary that must be critiqued if we are to move forward with our transformation. If you shed your fears of academic terrorism of the Universities, surely you must be able to confront judicial terrorism of ideas!
Thank you.
Dr. Willy Mutunga, D.Jur, SC, EGH
Chief Justice & President of the Supreme Court of Kenya
Utalii Hotel, Thika Highway, Nairobi
June 25, 2011.

Monday, June 04, 2012


Ladies and Gentlemen, Country Women and Men, Friends and Colleagues,
I feel privileged to speak to you today about the distance we have covered and the journey upon which we wish to embark in reclaiming the Judiciary for the Kenyan public. In my Progress Report after 120 days in office, I painted a broad picture of the Judiciary we found. The details of that picture are much more engaging and warrant revisiting, even if only briefly. And in launching the Judiciary Transformation Framework today, I have chosen the eve of Madaraka Day, a day that marks our transition to self- rule as a signal to own our determination to create an independent and effective Judiciary.
An oft-repeated criticism of the Judiciary has been over how it has accumulated an impossible case backlog. Case delays have become the badge of inefficiency and ineffectiveness the Judiciary wears as its mark of distinction. Case backlogs constitute the single most important source of public frustration with the Judiciary. They open a door for fugitives from justice to seek refuge in the courts by turning them into a playground for the rich and corrupt.
Inefficiency manufactures artificial shortages of justice, manures the soils in which corruption is planted and manicures a culture of ineptitude. This environment distorted values and perverted the cause of justice. It created a vicious cycle where poor service, inadequate staff, graft and unfavourable working conditions fed on each other to create the crisis of confidence in whose grip the Judiciary found itself.
We sought innovative ways that would yield the quickest benefits for the Kenyan public. We adopted the rapid results approach to jumpstart organisational change and increase the capacity of staff to implement programmes. Confronting the issue of case backlogs in the Court of Appeal as well as in five divisions of the High Court has generated results as well as important lessons that inform the changes we wish to undertake in moulding the new Judiciary.

The Court of Appeal was an important starting point in this journey towards transformation. The average waiting period for a case in the Court of Appeal was six years. With the backlog of 3,800 cases, with each requiring three judges at the same time at current capacity levels, the Court of Appeal presented special logistical challenges. There appeared to be no way to conclude all the cases in under three years -- even if there were to be a sitting every day. Still, there are many roadblocks to justice in the unique Court of Appeal Rules, the special manner in which records of appeal must be prepared, and the low number of judges.
These challenges notwithstanding, the Court of Appeal judges voluntarily adjusted their work schedules and created training manuals for preparing records of appeal. In 100 days, the Court of Appeal had reduced its case backlog by 451 cases. The Court continues to encourage those who take cases before it to file written submissions as a time-saving measure, and is reviewing its rules to place greater emphasis on efficiency and concluding matters with dispatch.
The Judiciary is transforming.
 At the High Court, similar initiatives were rolled out with encouraging results. Although the case backlog in the Environment and Land Division was 5,000, a baseline survey established that 16,907 new cases had been filed between the year 2000 and 2011. Within 100 days, this division of the High Court had reduced its backlog by 3,419 cases. In the Commercial and Admiralty division, where a baseline survey surfaced 29,000 cases, a whopping 27,000 cases were removed from the backlog: Many cases consisted only of files that had been opened, with no further action. They had been floating around the courts for years in the guise of backlog.
Similar initiatives have been launched in the Constitutional, Human Rights and Judicial Review, the Criminal and the Family divisions. Out of the 58,800 cases captured as backlog in these courts, 30,670 were disposed of in just 100 days. I salute the judges and staff in these courts for demonstrating what is possible even under difficult circumstances.
The Judiciary is already transforming.
The lessons from this initiative, as from many others like it, are numerous. In many instances, the cases were greater in number than had previously been thought, and in some instances, far less. This speaks to the importance of court records and their management. Where the records storage, management and retrieval system is weak or non-existent, the sagacity of a judge or magistrate alone can be woefully inadequate in preventing a miscarriage of justice.
Some of the archives and exhibits stores around the country had fallen into such neglect as to become the habitations for snakes and rodents. Termites had developed a literal taste for the delicacy of the court file, which they would devour without a thought on the details contained therein. In several instances, some staff, acting on their own initiative, have created accessible filing and storage systems that facilitate the easy retrieval of records. We continue to encourage these efforts as we tap into the reservoir of creativity and energy that already abounds in the Judiciary. Already, the Judiciary is transforming.
 Concomitant with these rapid results approaches have been other emergency interventions to deal with roadblocks the public encounters in the quest for justice. The Office of the Judiciary Ombudsperson, set up to receive and investigate complaints against judicial officers by the public, and by the staff against each other or their employer, has opened a great avenue for contact and interaction. With the Ombudsperson’s office now peopled with liaison officers from court stations across the country and the establishment of an online and short text message service through the number 5834, I am confident that responses to complaints will be faster, better, more transparent and cost-effective. This office will be the beachhead of the strategy to reduce the citizens’ alienation from the Judiciary and demonstrate that the institution is open and available for all those who seek its help.
 Across the board, the Judiciary is making heavy investments in information communication technology to improve service delivery, increase efficiency, lower the transactional cost of justice and modernise the Judiciary. It is one of the platforms on which we continue to encourage public participation. A recent, remarkable outcome of this approach was the crowd sourcing of designs for the prototype court. Besides the many brilliant designs entered in the competition, whose winners were unveiled and awarded this week, Kenyans spoke candidly about the discomforts they suffer when they use the present court infrastructure – from lack of toilets to the absence of separate holding cells for men and women. Inconveniences around paying court fines and fees, and the deficit of compassion in the manner courts treat people are some of the other observations the public has voiced.
 Aware that happy staff make happy clients, we have undertaken several measures within the Judiciary to professionalise the work environment. A revised code of conduct and ethics is being finalized, as well as a sexual harassment policy whose enforcement are a matter of priority. Staff are being trained and sensitized on their implementation. We have undertaken nepotism and ethnicity audits, as well as a disability survey among Judiciary staff as first steps towards eliminating artificial barriers to career progression and creating a safe, rewarding work environment.
 Additionally, we have sought to give every member of staff the tools they need to perform their duties. We have also begun to improve the compensation packages for the staff working in the Judiciary. We embrace training and continuous learning as the anvil upon which we sharpen our professionalism and prepare us for the challenges the environment will throw at us.
In return for the heavy investment the public is being required to make to secure the comfort of Judiciary staff, they must obtain value for money in the services they receive. That is why I remind my colleagues that no one has a title deed to a job in the Judiciary.
Talking of confidence, technocratic reforms alone are not sufficient to win public confidence. They may produce results, but they are not sufficient to deliver fully on the promise the Constitution makes to Kenyans. They are probably reactive to situations that have undermined the Judiciary in the past but do not speak to the totality of our constitutional mandate. The face of justice in Kenya has remained forbidding and unapproachable because the Judiciary has largely been bereft of compassion, disinterested in the daily lives of ordinary people and manifestly indifferent in the name of maintaining neutrality.
The Constitution does not require the Judiciary to merely clear case backlogs, eliminate the problem of lost files and computerise its operations for greater efficiency – important as these are. It demands a cultural shift to enable the Judiciary to lead the transformation of the Kenyan society to bring it in line with national values.
The Judiciary will only lead this transformation by interpreting and defending the Constitution, but it can only do so by first transforming itself.
This transformation, therefore, aims to ultimately reconstruct the Kenyan society. That is why reform alone would be not be sufficient. The Judiciary is transforming because the Constitution requires it to. And this is how we intend to answer the command of the Constitution.
 As the engine of societal transformation, the Judiciary is required to adopt a culture of service that is people-centred. We must create an environment that supports the delivery of justice, upholds the rights of the Kenyan people and promotes national values. We must recapture the public imagination, not through outdated rituals and posture, but by evoking a common appeal. Drawing on the lessons of the last elections, we have established a Judiciary Working Committee on Election Preparedness to draw up a curriculum that will prepare judicial officers to try election offences and resolve election disputes.
 The Judiciary Transformation Framework that we launch today will be carried out in line with four pillars: focusing on people outside the institution; focusing on people within the institution, providing the resources and infrastructure required, and employing information communication technology across the board.
 In order to give structure to the numerous initiatives we are undertaking, and create coherence among them, I am happy to unveil the following 10-point action plan for transforming the Judiciary:
1.     Access to and expeditious delivery of justice: Justice is not the privilege of a few. We seek to expand access to the expeditious delivery of justice for all Kenyans. Every court shall have a customer care desk and a court counsel to provide information about the procedures one’s needs to follow, especially in cases where one would like to represent oneself. Court documents will be simplified. Our justice system will give due regard to traditional mechanisms of dispute resolution, as far as the constitution allows. There will be a High Court in every county and a magistrate’s court in every district and decentralize the Court of Appeal. We shall increase the number of mobile courts, and ensure that they work. Ultimately, our performance will be weighed on the scales of humanity and democracy. These commitments will be published in a Litigants’ Charter, which will be our contract with the Kenyan people.
2.   Public participation and engagement: We will never forget who the boss is. We shall explain ourselves simply and coherently even as we seek the views of the public in undertaking our various activities. We shall listen keenly, not just to satisfy the letter of the Constitution, but also to respond appropriately. For it is not our intention to talk at the Kenyan public, but rather to begin a conversation with them. The Office of the Ombudsperson will be strengthened and supported through technology to be responsive, effective and efficient at all times. We shall open dialogue with students and the public so that people know what we do.
3.   Stakeholder engagement: We take our responsibilities in the justice chain seriously and encourage our partners to do likewise. The independence of the Judiciary is complementary to our interdependence with others working within the justice system. We shall lead the National Council on the Administration of Justice in unlocking problems that hinder our work, just as we will collaborate with the Executive, independent commissions and other actors. We shall always defend our independence as a separate arm of government is guided by the national values of patriotism and national unity in helping the other arms of government to realize a new Kenya.
4.   Philosophy and culture: We shall evolve a new philosophy and culture that recognises the people of Kenya as the source of judicial authority. We pledge to offer imaginative leadership on law, accountable service with integrity, openness, and an orientation towards delivering results and ethical conduct.
5.    Leadership and management: People are our most critical asset. That is why we are adopting professionalism in leading and managing this critical resource. We shall equip our staff with skills, motivate them to perform, reward them fairly and create opportunities for their personal and professional growth. We shall match staff to work, skills to career progression, and additionally set up mortgage, medical and loan facilities. Policies on transfer as well as training and scholarships will be designed to make working in the Judiciary a competitive career choice. Our management style will be participatory and representative of all sectors of the Judiciary.
6.   Organizational structure: We will simplify the way the Judiciary is organised in order to clarify reporting lines and create clear accountabilities in order to fast-track decision making. Our organisational design will be devolved to encourage discipline and reward performance. There shall also be a court inspectorate unit. Human resource and finance functions will be devolved to 17 regions around the country.
7.    Growing jurisprudence and judicial practice: Training, research and partnerships will be at the heart of our efforts to enable judges and magistrates to develop the law and its application in order to bring it to par with practices around the world. We shall embrace continuous learning, mentoring and peer review in order to create new thinking about the law and how it is applied.
8.   Physical infrastructure: We shall have courts that are friendly, accessible and have the required facilities. We have begun the process of creating a model court from the designs received from a recent competition. Once the public makes further contributions to these designs, they will be turned into a model design to be used in building standard courts. We shall also have an infrastructure development master plan to guide development, and an inspectorate department.
9.   Financial resources. We shall get the Judiciary Fund working in order to secure our financial autonomy, but we shall also embrace budget for results, manage our finances responsibly and be accountable at all times. Although some of the Judiciary’s activities are currently supported by development partners, the public must eventually pay for it in order to own it and demand the requisite accountability of it.
10.    ICT as an enabler: We shall harness ICT to improve the administration of justice and right across all the key result areas. We undertake to deploy electronic case management, integrated document management and audio-visual recording to cut back on delays and other opportunities to frustrate the search for justice.
This blueprint encourages every court station to innovate. It allows the creativity of every Judiciary official to show. With it, we are creating a structure that encourages resourcefulness and enables it to thrive. Unlike other reports, plans and frameworks, the Judiciary Transformation Framework will not just be a document. It is a roadmap for action. That is why I have created a full-time Judiciary Transformation Secretariat within my office to drive its implementation. The person I have picked to lead the Judiciary Transformation Secretariat is highly talented and has shown a remarkable sense of commitment to serve by leaving a tenured position as professor at one of the foremost universities in the world to take up a position as a judge. Justice Professor Joel Ngugi, who has been a critical part of implementing the pilot transformation programme at the Machakos Law Courts, brings invaluable insights into how each station can make this framework a living reality.
All citizens must be reminded that this is their Judiciary. They pay for it, and it must work for them. This Judiciary Transformation Framework is their tool for holding each of us, at every level of the Judiciary, to account.  Civil Society has a special role as our partners in promoting this framework as the new template for how the Judiciary will work. As stated before, we regard the co-ordinate branches of government as interdependent and look forward to a healthy relationship as we seek that society the Constitution commands us to build.
We require more scrutiny from the media – not just here in Nairobi, but around the country, so that it can never be said we had a good plan that we failed to implement.
Finally, for those who may be inclined to resist this Judiciary Transformation Framework, I would say this to you: the train has already left the station. The forces against change have no alternative but to obey the Constitution -- unless they want to overthrow it. This I am certain of: the old order is dead. What is uncertain is how expensive the forces of resistance will make the funeral.
Those who may think focusing on an individual can halt or derail this transformation have not made the necessary mental shift. There is a critical number of Kenyans in the Judiciary who share this vision for transformation.
They would do well to note that the office of the Chief Justice is not a transmission station for instructions from any quarter – the Executive, the legislature, civil society, capital or any organised interest. I do not tell judges what to decide and no Kenyan, however low or high, should think that they can ask me to do so. I have not done it and I will not do it. Ultimately, our aim is not to defeat or humiliate anyone. It is only to deliver to Kenyans what is promised to them in the Constitution.
And to my colleagues in the Judiciary, I wish to say this: The journey of an earnest transformation of the entire Judiciary begins today. It is a cause long pre-determined by the Constitution and high expectations and on which we have no choice. You owe it to yourselves to create an institution of pride – make the Judiciary the most prestigious, attractive, and effective arm of government. I am sure that a great deal of professional satisfaction is to be derived from working for an institution of distinction and not one that is the object of constant public scorn and ridicule.
 As the Chief Justice and head of this institution, I will do my part to help us realize our transformation objectives. The burden of history requires me to provide leadership in the creation of a new institution. It is a burden I have taken up with pleasure and will pursue with uttermost conviction. No decision will be too tough for me to make if that is the price we have to pay to meet the aspirations of the Kenyan people. The time for testing is past. Now is the time for results. We must all transform or perish.
Thank you.
Dr Willy Mutunga, SC. D.Jur., EGH
Chief Justice & President
Supreme Court of Kenya