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.
Dr Willy Mutunga, SC. D.Jur., EGH
Chief Justice & President
Supreme Court of Kenya