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.
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.
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!
Dr. Willy Mutunga, D.Jur, SC, EGH
Chief Justice & President of the Supreme Court of Kenya
Utalii Hotel, Thika Highway, Nairobi
June 25, 2011.