Ladies and Gentlemen:
Almost
one year since the commencement of the Vetting of Judges and Magistrates Act,
2011, I am glad that your board has surmounted numerous challenges to conclude
the vetting of justices serving in the Court of Appeal before the promulgation
of the Constitution, and to deliver your report.
I
congratulate you on your achievement even as I encourage expeditious conclusion
of your mandate. As you know, the law requires the vetting of judges of the
High Court and magistrates to be concluded in short order.
For us in the Judiciary, speed is of the essence. The results of this exercise
lay the groundwork upon which we can plan our activities and programmes knowing
the finite resources at our disposal.
More importantly, this exercise will infuse in our institution a sense
of confidence and constitutional pride of place.
It is for this reason that I
appeal to the Vetting Board to carry out its mandate with speed and adroitness
without compromising professionalism and fairness. It is imperative that the
vetting exercise is completed quickly to remove anxiety from among judicial
officers. Prolonging the vetting process can pose a threat to the
administration of justice by creating pockets of fatalistic inertia and even
corruption.
Expeditious vetting satisfies
the aspirations of the constitution, for we see the clean-up of the Judiciary
as only the beginning of Kenya’s social transformation. It is important that
when the Judiciary is called upon to adjudicate on matters of leadership and
integrity, as is likely to happen at a time when the country chooses candidates
for executive and legislative positions, the Judiciary shall not be found with
a single blot on its character.
The unparalleled exercise your Board
has been tasked with is both delicate and difficult, but it is not for purposes
of mere ritual or spectacle. It fulfils a requirement of the Constitution as a
first step towards realising the national aspiration for a transformed society.
It is an exercise that is
unprecedented in the Commonwealth – one that requires a delicate balance of
high-level professionalism and deep sensitivity to both the judicial officials
whose record your Board continues to examine, as well as the public that has exceedingly
high expectations of those who would sit in judgment over its affairs.
We, as the Judiciary, accept the decisions of the
Vetting Board with humility and much circumspection – as we must. It is the
stock of the pessimist to look at the glass as half empty. We choose to be
optimistic in our outlook, and congratulate the majority of the judges of the
Court of Appeal whom the Board has found suitable to continue to serve.
Even
as we take stock of these decisions, it is imperative that we avoid the
temptation to see them through the sharp prism of narrow individualism which,
in the first place, put so many of our institutions in trouble in the
past. We must see these decisions from the perspective of the ordinary
Kenyan’s objectives in setting up the vetting process. Ordinary Kenyans
demanded a transformed Judiciary that would take seriously the task of winning
back public confidence. This is one of the tools they chose to test the
mettle and institutional commitment of the Judiciary to undergo transformation.
Judicial officers now
and in the future must be competent, diligent, knowledgeable, organised and
able to work with a variety of people. They must not only have excellent
written and oral communication skills, but also possess a high integrity
threshold in public and personal life; they must not only be impartial and
committed to equal justice under the law, but also be compassionate and humble.
They cannot be discourteous or uncivil in dealing with others, even when they
are under extreme stress.
These are not
criteria for recruiting angels; they are requirements for anyone who wants to
serve as a judicial officer in Kenya. She or he must be able to maintain grace
under pressure. Their office requires one to not only show good judgment, but
also possess legal and life experience, as well as a commitment to public and community
service that sustains them in their duties.
To those for whom the Board may have come to the conclusion that they were not suited to continue in service, we extend a hand of thanks for your service to the country and hope that you do not lose the lesson along with the opportunity.
My hope is that even as we lose
some of our distinguished members to early retirement, this exercise will
provide enduring lessons for the rest who occupy positions of public trust in
Kenya. As stinging as
these decisions are, the country must draw lessons
from the experiences that have generated them. The most obvious conclusion must
be that actions have consequences.
Today,
as we part company with our colleagues who have
given illustrious service to the country at periods that were politically
difficult and professionally stifling, we must remain alive to the reality that the idea of justice must
always be clear, its ends uequivocal and its manifestations apparent to all. Carrying
the lesson of this exercise forward, I am certain there will still be
opportunities for those leaving the Judiciary today and in the future to serve
their country in numerous other capacities.
I have spoken with my four colleagues and will soon meet up with them to discuss issues regarding their retirement.
I assure Kenyans that I will
not allow our departing colleagues to be stepped on while they are down. The
indignity visited on judges and magistrates in the so-called radical surgery of
2003 will not be repeated: not on my watch. The lesson we must follow is that
as Kenyans, notwithstanding our misgivings, those who have served our country
deserve to be so recognised and respected. In order to build strong
institutions, we must depersonalise them.
For the rest of us who continue
to serve, we must be aware that the bar of public service has been raised so
high that it will not be possible to merely do the bare minimum to get by.
We
stand to promise Kenyans that we are, indeed, committed to the institutional
overhaul they demanded, and which we swore to deliver. Judicial
officers must take note that the public is vigilant.
Should the judges affected by
the vetting exercise seek a review of the Board’s decision, as is their right
to, they will still not be able to serve in the Judiciary until their reviews
are disposed of. We urge the Vetting Board to expedite the process of review,
where it has been initiated, and advise us accordingly to enable the Judiciary
to respond appropriately to emergent staffing gaps.
Only this morning, I met with all the justices of the Court of Appeal to review the implications of the Vetting Board’s decisions. After the suspension of four judges, the Court of Appeal still has 11 judges available for duty, but one is on sabbatical leave and another is on secondment as head of the Judiciary Training Institute. Until the Vetting Board advises us on any reviews with regard to the judges it was unable to find suitable to serve, the Judiciary cannot deploy them or declare their positions vacant.
In the interim, the judges have
elected one from among their number as the Acting President of the Court of
Appeal in order to expedite the many urgent administrative matters that have
surfaced thus far. I congratulate Justice Erastus Githinji on his election, and
wish him well in his duties.
Let me now turn to the impact
of the Vetting Board’s decisions. Last year, I had directed the Court of Appeal
to fast-track and conclude the determination of cases pending before it. Steady
progress is being achieved but the decision of the Vetting Board will have an
effect on these achievements.
For instance, records of appeal
which were holding up the hearing of criminal cases at the Court of Appeal
continue to be fast-tracked. By January 27, 2012, the Court of Appeal had
received 1,005 records from High Court stations around the country. The balance
of 971 records of criminal appeal is expected to be in before the end of the
year.
Further, by accepting written
submissions rather than waiting for oral arguments, the Court of Appeal reduced
the old cases that had been pending since 2004 from 88 to 76. The waiting
period for civil applications is expected to be reduced from six months to one
week.
There are many gains being
realised from the various reform efforts initiated in the Judiciary. Some of
these gains will be slowed as the institution adjusts to the realities of the vetting
exercise.
The immediate effect of the
Vetting Board’s decision is that some 109 Court of Appeal judgments in cases
that had been concluded had not been delivered. The four judges who were
expected to write these judgments after the conclusion of hearing had not done
so at the time of the Vetting Board’s decision, and they cannot write them now.Of
these 30 judgments had been signed and are ready for delivery and will be
issued in due course.
Some 47 judgments in cases
already concluded where only one of the affected judges sat, will still be
delivered. The Court of Appeal rules allow that if one judge leaves the Bench,
the decision of two judges is still valid.
In total, 77 judgments will be
delivered in spite of the decisions of the Vetting Board.
Unfortunately, hearings will
have to start afresh in some 32 appeal cases where two of judges on the bench
were suspended.
My expectation is that the
Acting President of the Court of Appeal shall reconstitute panels to deal with
the 234 cases scheduled to be heard at the Court of Appeal in May, 2012. The
effect of this is that only 114 cases will be heard in May, representing a 50
per cent scale-down.
Our priority right now is to
conclude pending cases and deal expeditiously with emergency matters. I have,
therefore, directed the Court of Appeal to prioritise concluding the matters
pending before it with regard to the census and the elections. I am happy to
inform the country that I have received the assurances of the justices of the
Court of Appeal to facilitate smooth operations during this transition period.
At the conclusion of the vetting exercise, the Acting President of the Court of
Appeal shall facilitate a smooth, free and fair election of a substantive
President of the Court, and member of the Judicial Service Commission.
As the vetting exercise moves
to the High Court and the magistracy, we are taking the necessary
administrative and management measures to mitigate any negative effects that
may arise from it.
As high as the price of this
exercise may appear, it is important to see it in its proper, wider context. We
must remember that the change we are implementing today has come at the costly
price of life, limb and liberty. Kenyans have paid the highest consideration
for the Constitution. That is why we must not falter in its implementation.
We have to keep rising even
when we fall in order to maintain the momentum for the change for which many of
our compatriots have paid the ultimate price.
Although the vetting exercise
is time-bound and limited to those officers who were serving before the
promulgation of the constitution, I am certain that the public will not
hesitate to approach the Judicial Service Commission to ensure that our
conduct, individually and collectively, is up to par. The public still thirsts
for quality, accessible and affordable justice, and our duty is to provide it.
As Chief Justice, I encourage
public vigilance without vindictiveness. I would like to tell the Kenyan public
that we in the Judiciary welcome and expect this vigilance.
The Judiciary may seem to be
carrying the burden of reform on its own, but I hope the lesson extends to
other spheres of leadership in public life throughout Kenya.
Thank you.
Dr.
Willy Mutunga, D.Jur, SC, E.G.H.,
Chief
Justice & President, Supreme Court of Kenya
