KENYAN JURIST

State of Judiciary, Mashujaa Day and other things

2012-10-20T22:22:00.000+03:00

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.

ADDRESS BY THE CHIEF JUSTICE AT LSK ANNUAL CONFERENCE, 2012

2012-08-18T14:17:00.002+03:00

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.

CHIEF JUSTICE/ PRESIDENT

SUPREME COURT OF KENYA

CJ'S SPEECH AT SWEARING IN OF JUDGES OF EMPLOYMENT AND LABOUR RELATIONS COURT

2012-07-16T19:49:00.000+03:00

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.

DR. WILLY MUTUNGA, D.Jur, SC, E.G.H.,

CHIEF JUSTICE/PRESIDENT, SUPREME COURT OF KENYA

Chief Justice Welcomes Legal Researchers.

2012-06-27T17:58:00.001+03:00

Colleagues and Friends of the Judiciary, Good Morning

Welcome

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.

Coordination

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.

ADDRESS BY THE CHIEF JUSTICE AT THE LAUNCH OF THE JUDICIARY TRANSFORMATION FRAMEWORK

2012-06-04T18:02:00.000+03:00

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

CJ Remarks at the launch of Judical Working Committee of Election Preparation

2012-05-10T16:12:00.001+03:00

With Kenyans preparing to choose close to 2,000 individuals for public office, the forthcoming election is unprecedented in both scale and complexity. Elections on our continent have often been cast as meaningless periodic rituals, or as cataclysmic events characterised by upheaval and disruption. Where a balance is struck between these two extremes, electoral events are heavily scented by corruption.

Because of the entrenched culture and practices around elections, the numerous covenants signed and ratified with regard to political rights appear to have no more value than the paper on which they are printed.

For a long time, Kenya successfully disguised its electoral weaknesses from the world, and thus appeared to do better than most of her neighbours.

The electoral crisis of 2007 and its aftermath was caused by numerous malpractices and outright criminal activity, but exacerbated in large part by a refusal to take disputes to the courts. Numerous reforms later, the country’s ambition is to not only prevent a recurrence of past mistakes, but also to deliver an election that would be a model for other democracies. Through proper institutional conduct, we in the Judiciary intend to earn the public confidence that was so dented at the last election as to discourage parties from taking disputes to court.

As I have pointed out in the past, our democratic and developmental transition is promising but still fragile. We have an obligation to nurture, protect and promote it. Heading into the biggest election this country has ever held, the Judiciary is keenly aware of its multiple, special roles with regard to the elections.

First, the Judiciary has the responsibility to interpret the Constitution. There are many constitutional provisions governing the election that remain untested and could, therefore, be contentious. The Judiciary’s foremost role will be to interpret the Constitution and the law in order to deliver the fullest benefit due to each citizen.

Our national vision is derived from our Constitution. Article 38 guarantees every citizen the freedom to make political choices. The right to participate in the formation and activities of a political party or cause, to vote in and contest elections, as well as to hold public office is at the heart of our democracy.

Peaceful, free, fair and regular elections are not a pie in the sky – they are a right to be exercised by all citizens as an avenue for expressing the will of the people on how they wish to be governed. It is indeed high crime for an individual, an institution, or a group of people -- through incompetence, negligence or design to act or neglect to act in order to aid the subversion of the sovereign will of the people and thus make the expression of this will inarticulate.

The principles for the electoral system enumerated in Article 81 must come to life. The crossroads at which we stand as a nation demands that we follow only one route -- and that route leads us to the implementation of the Constitution. Never before has the call to service been clearer for the Judiciary than it is now. At moments of transition, the Judiciary is the guardian of all. We cannot be shy in the execution of our mandate. We shall be proactive in interpreting the Constitution to give the fullest effect to its intentions.

Secondly, the Judiciary has a role to uphold the rule of law and ensure that justice is done to all, regardless of status. The rule of law is the cornerstone of our national vision. Those who disobey the laws of the land should know they cannot hold public office. For all other citizens, this message cannot be over-emphasised: the Judiciary is for all Kenyans and the depth of one’s purse or the size of one’s stature will not buy anyone impunity before any court. Judges and magistrates are Kenyans, too. They can no longer hide their heads in the sand when the nation’s survival is constantly threatened by those who disobey our laws.

Those who say our politics are dirty have not read the Constitution. The intention of the Kenyan Constitution is to clean and cleanse our politics. The Judiciary is only its handmaiden. Those who wish to undermine the true purpose of elections should be cautioned that they could very well be writing the epitaph to their political careers. Chapter 6 of the Constitution, as well as the values expressed in the entire covenant, are collectively the perpetual guillotine for those who do not pass muster. As we campaign for public office we must never for a moment forget that our careers and those of those we support are perpetually on the line. All citizens must watch what they say, what they do, what they think and imagine, and always remember the Kenyan nation is bigger than all of us. Impunity is on its deathbed, placed there by the will of Kenyans as writ large in the Constitution.

Violence, in whatever form, is outlawed. Leaders at all levels must live by the values articulated in the Constitution. For political leaders and all those holding public office, the wages of violating any of the provisions of the Constitution are writ large in law.

Third, the Judiciary is required to provide leadership in ensuring the system of justice works from start to finish. The National Council for the Administration of Justice, of which I am chairperson by grace of the law, has been activated to enable conversations that allow all stakeholders to hold their own fort. The space for buck-passing has closed.

While respecting the constitutional mandates and independence of each of these institutions, the Judiciary has already convened meetings with stakeholders to raise preparedness for the elections at a par across this entire assembly line of justice. I am happy to report that the police, the Directorate of Public Prosecutions, the State Law Office, the prisons, and the Ministry of Justice, National Cohesion and Constitutional Affairs are already part of this conversation and will readily share their expertise and knowledge in the preparations we undertake as a nation. I want to urge each one of them not to conduct themselves in a manner that undermines our electoral and constitutional democracy.

Fourth, the Judiciary must arbitrate in electoral disputes. The Constitution, which includes an expanded Bill of Rights and values that underpin its interpretation, will be applied for the first time in deciding electoral disputes. Our approach to the Judiciary’s role in this regard is informed by the logic that the most useful forms of dispute resolution must occur at the initial stages of disagreement before differences escalate.

Should there be disputes, however, there are many avenues for resolving them, and the courts are only one of these. The Political Parties Act, enacted as required by Article 40 of the Constitution, provides for internal mechanisms of resolving disputes within parties. In the event that one is dissatisfied, one can then turn to the Political Parties’ Tribunal, followed by the Independent Electoral and Boundaries Commission.

We encourage all Kenyans to exhaust these mechanisms before turning to the courts. Parties to political disputes should take notice of the decisions by the Constitutional and Human Rights Division of the High Court in referring matters to relevant tribunals rather than it being a first port of call. The interaction between the Judiciary and the tribunals may not be neat at the moment, but we are committed to ensuring that it is ironed out to promote alternative dispute resolution as decreed in the Constitution.

If every Kenyan upholds the rule of law, and the organs of justice are functioning as they should, there should be no need for an election petition. However, in the event that election petitions do surface, preparations are under way to ensure that they are dealt with in the most expeditious and judicious manner possible.

Even so, the Constitution and the law have assigned specific responsibilities to the courts at various levels. The Supreme Court will handle any petition arising out of the presidential election within 14 days. The High Court is expected to deal with all other petitions arising from elections for the women’s representatives, senators, governors and assembly representatives at the county level, as well as for national assembly seats. The Court of Appeal has jurisdiction over all appeals arising from these disputes. The magistrates’ courts will process electoral offences.

The Constitution commands that all election petitions must be concluded within six months.

With the Judiciary’s task thus set out, we recognise that election petitions have the potential to impact the wider justice delivery agenda. The number of judges needed to handle the disputes as well as the volume of cases could be higher than anything Kenya has ever dealt with. We are aware that Kenyans are looking up to the Judiciary to resolve any disputes that arise from the elections.

All the matters arising from the delimitation of electoral units at the constituency and ward level also fall under the category of electoral disputes the Judiciary must resolve. In this particular instance, they raise fundamental constitutional questions. They have, therefore, been consolidated and will be heard by a five-judge bench, and disposed of within the three-month constitutional deadline.

Going forward, we recognise that the challenges ahead require careful consideration. In order to prepare the Judiciary for the exceptional roles that it is expected to play in the forthcoming elections, we intend to conduct intensive training for judges and magistrates who are expected to handle election offences and disputes in order to enhance their skills and knowledge.

As part of the Judiciary’s preparations to create and implement effective mechanisms and capacity to resolve electoral disputes and deal with offences, I am pleased to announce the appointment of an eight-member team to design and execute a Judiciary programme to build the capacity of judges, magistrates and other judicial officers on electoral matters, and suggest ways of working with other stakeholders. The Committee will operate under the aegis of the Judiciary Training Institute but report to the Chief Justice.

Mr Justice Mohammed Ibrahim of the Supreme Court will chair the Judiciary Working Committee on Elections. The Committee will also comprise Justice (Prof) Smokin Wanjala of the Supreme Court, Mr Justice David Maraga of the Court of Appeal, Mr Justice Paul Kihara Kariuki of the Judiciary Training Institute and the Court of Appeal, Lady Justice Helen Omondi and Mr Justice David Majanja of the High Court, as well as Hon. Roseyln Oganyo, Senior Principal Magistrate, and Hon. Lilian Arika, Principal Magistrate, and both based at the Milimani Law Courts in Nairobi.

The Working Committee’s terms of reference are to:

1.   Advise the Judiciary on administrative arrangements and measures for the efficient disposal of election related disputes.
2.   Develop and implement, in conjunction with the Judiciary Training Institute, a training programme for the efficient and effective management of election disputes for judicial officers and support staff.
3.   Develop and design a system for monitoring and evaluating the management and administration of election-related disputes in court.
4.   Liaise and coordinate with stakeholders to ensure efficient, effective and timely resolution of election related disputes and offences.
5.   Advise the Judiciary on the information that needs to be developed and disseminated to the public on the avenues open to it to pursue electoral disputes and the approaches that will be employed.

It is our intention to demonstrate that Kenya is serious about respecting, promoting and protecting the fundamental right to vote. That is why we are taking this early step to establish effective and efficient structures to resolve electoral disputes and deal with election-related offences. We expect concomitant action from the other actors in the election and justice sector so that it is never in dispute that our elections were free and fair.

Thank you.

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

Chief Justice and President of the Supreme Court of Kenya

JUDICIARY; NARRATIVE ON 2012/13 BUDGET

2012-05-01T19:44:00.000+03:00

Judiciary Short Narrative on the 2012/13 Budget Estimates

The 2012/13 Estimates seek a total resource sum of KShs 16.8 billion, which is KShs7 billion above the Treasury-set resource ceiling.

These estimates reflect the following 10 key constitutional, policy and legal requirements that the Judiciary must now meet:

1. Hiring of Judicial Officers (Judges, Magistrates, Kadhis) as required by law. In 2012/13, the total number of Judicial Officers will rise by 70%, from 451 to 726. This measure was taken by the Judicial Service Commission in order to reduce the huge case backlog and waiting period which sometimes amounts to a period of twenty (20) years. Recruitment processes for the majority of these positions is complete and they are set to report on 1^st July. If the Judiciary does not obtain the requested funding we will be forced to cancel some of the contracts putting the Judiciary Service Commission in an embarrassing situation. It is important to note that this increase in the number of Judicial Officers is the single largest item that will impact the Judiciary budget when comparing 2011/12 with 2012/13. The unit cost in the Judiciary is pegged on a judicial officer and thus if the number increases there will be a proportionate increase in Q & M.

2. Infrastructure Development. The law requires the presence of a High Court in every county. The Judiciary has 17 High Court stations. The shortfall will be met within 10 years. The Judiciary is planning to build four (4) High Court stations during the year 2012/13. In addition, there are currently 111 Magistrate Court Stations out of the required 285. The Judiciary is planning to meet the shortfall in a 10 year plan. Four (4) have been earmarked for construction in 2012/13.

Other key requirements that must be met are:

3. Hiring of Technical Judicial Staff (Legal Researchers and Law Clerks) for every Judge as required by law

4. Hiring/Provision of the necessary Administrative Staff Support for every Judge as policy and practice demands. It should be noted that the current Administrative Staff Support vacancies are almost 50 per cent of the Authorised Establishment. This will be addressed over time.

5. Provision for Operational Tools for new Judicial Officers and Judicial Staff, which is reflected in a proportional increase in O&M to that in the number of Officers and Staff.

6. Fully operationalising the National Council for the Administration of Justice as required by law

7. Fully operationalising the Land and Environment Court as required by law

8. Bringing under the vote of the Judiciary, the Industrial Court (which currently falls under the Ministry of Labour budget vote). Additionally, this Court is being expanded from 5 to 15 Judges.Tribunals will also need to be brought under the Judiciary vote.

9. Providing for a fully operationalised Judicial Service Commission (including the Judiciary Training Institute), and establishing the JSC as a SEPARATE VOTE as required by the Constitution

10. Reinstating Development Expenditures placed in abeyance in consultation with Treasury in the 2011/12 financial year on account of an executive decision in the Judiciary to halt/rationalise ongoing court construction.

11. Providing initial O&M resources to sufficiently kick-start the Judiciary Transformation, including the launch of new operational, financial, human resource and document management systems.

Conclusion

The Judiciary enters the 2012/13 at a time when its reform path is transitioning from the first wave of institutional renewal that has taken place since the Constitution was promulgated in 2010 to a second wave of institutional transformation.

A Judicial Transformation Framework (JTF) now exists to reflect the requirements of the Constitution and the demands and expectations of the people of Kenya. Both a Strategic Plan and a Medium-Term Framework are in place to take forward the JTF. The 2012/13 Budget Estimates represent the first major opportunity to match intent with resources.

The Budget Committee’s foresight and leadership in 2011/12 re-established a basic budget for the Judiciary. For 2012/13, these qualities are in even greater demand as the Judiciary seeks the approval of this KShs 16.8 billion budget.

JUDICIARY BUDGET; STATEMENT BY CRJ TO BUDGET COMMITTEE

2012-05-01T19:41:00.002+03:00

STATEMENT OF

GLADYS BOSS SHOLLEI

CHIEF REGISTRAR OF THE JUDICIARY

BEFORE THE PARLIAMENTARY BUDGET COMMITTEE AND THE JUSTICE AND LEGAL AFFAIRS COMMITTEE OF THE TENTH PARLIAMENT

April 25^th, 2012

INTRODUCTION

Chairperson Hon. Elias Mbau, Chairpersons of the various Parliamentary Departmental Committees, Committee Members, Members of Parliament, I am Gladys Boss Shollei, the Chief Registrar of the Judiciary. I come before you to testify on the Judiciary’s budgetary estimations for fiscal period 2012-2015 as per Article 173 of the Constitution.

The Judiciary is undergoing a transformation programme to correct and cure decades of neglect and positioning itself in line with the changes in the new Constitution and the high public expectations.

JUDICIARY ESTIMATES FOR THE FINANCIAL PERIOD 2012/2013

I appear today on behalf of the Judiciary by thanking the Committee for increasing the Judiciary budget in the last financial year. Whereas this constituted a notable increase in our budget, it is still not sufficient. The new responsibilities imposed by the new Constitution and the enduring legacy of chronic underfunding of the judiciary calls for accelerated investment in the same.

In the exercise of its legislative mandate and in consonance with the Constitution, Parliament through a series of Act have provided for the following:

· The establishment of the Industrial Court

· The establishment of the Environment and Land Court

· Establishment of the Political Parties Tribunal

· The establishment of a fully functional secretariat of the Judicial Service Commission

· Establishment of the National Council for the Administration of Justice

· Provision of legal research assistant to each individual judge

The Judiciary is not only underfunded but also grossly understaffed. We are operating at staffing levels of 47% of the approved establishment. This partly explains the poor service in our courts as evidenced by huge case back log. Therefore we are hiring more judicial staff to get the work done. This has in turn resulted in an increase of our budgetary estimates to 16.8 billion. It is important to highlight at this point that the recruitment will be done in phases and spread over three years initially.

CONSTITUTIONAL BASIS OF JUDICIARY ESTIMATES

Kenya’s constitutional architecture has radically changed the practice of budgeting largely driven by interest in reinforcing the separation of powers and granting autonomy to each of the arms of government and independent institutions. In this regard, the Constitution through Article 173 has created the Judiciary Fund which shall be used for administrative expenses and such other purposes as may be necessary for the discharge of the functions of the Judiciary.

The effect is that previous approaches to budgeting, that is, engaging with Treasury have changed. The power has now reposted to Parliament. It is important for Treasury to realise that there has been a fundamental shift and therefore powers and duties it performs largely been taken by Parliament. For Judiciary to consult with Treasury, it is as a matter of courtesy and inter-branch relations and not so much that Treasury has veto powers.

JUDICIARY STAFFING AND WORKLOAD

I previously mentioned the expanded mandate of the Judiciary and the resultant increase of staffing levels. I must point out that we are way behind in having adequate number of judicial officers serving the public. According the last census in 2009, Kenya has a population of about 38.6 million. The current threshold number of High Court judges is 70 as per the Judicature Act. This means that we have 2 judges for every 1 million Kenyans. The proposed amendment to the Judicature Act will take the threshold to 150 and result in a ratio of 4 judges per million Kenyans. This number is still very low as compared to other jurisdictions albeit more developed ones. Statistics from sixteen years ago show that ago the numbers of judges for per million people were 41 judges in Australia, 75 judges in Canada, 51 judges in England and 107 judges in the USA.

Regarding the other judicial staff I must point out that 47% of the positions are vacant so we are only operating with half the staff we need. Indeed the Chief Justice is on record stating that his office only has two secretaries and six bodyguards! Given the scope of his duties, his office is grossly understaffed.

We understand the fiscal constraints under which you are operating and we will appreciate the funding levels you will able to provide. I am compelled to report to the Committee, however, that continued funding at Treasury levels could imperil the high quality of justice on which our nation yearns for.

We must take note that the elections are around the corner and judging by the last elections, there will be a large number of election petitions in court. Now, Parliament in its wisdom through section 75 (2) of the Elections Act of 2011, has provided for a six month duration for the conclusion of an election petition from the date of lodging the petition. Another requirement is that the petitions should be heard at the High Court within the County or the environs. We currently have 17 High Court stations out of the 47 counties. We foresee congestion of election petitions in some counties.

In exercising judicial authority, the Constitution provides that the courts should not delay justice. Further that justice should be accessible to all. The principle of devolution that is threaded throughout the entire Constitution necessitates having courts close to the people. Currently, the courts are found in major towns and at times far from rural areas. Many people therefore have to travel long distances to access the courts. For example, Ouko Task Force notes that in Northern Kenya courts are situated as far as 500 kilometres away from the users and that in such marginal areas, there is a dearth of legal service providers.

In response to the foregoing, the Judiciary plans to have High Court stations in all 47 counties. In addition subordinates courts will have to be constructed to reduce the distance between the litigants and the courts. This will not only help decongest some stations but will make justice affordable. For instance people of Mbita need to take a boat to go to court. The Judiciary has already liaised with other Government Departments and Ministries with a view of obtaining land to put up structures. For instance Mavoko County Council has allocated the Judiciary land to set up premises. The documents provided show a list of the locations the Judiciary proposes to put up court.

GOOD STEWARDS OF PUBLIC MONEY

The Judiciary endeavours to use public money in a prudent and responsible manner as provided for by Article 201 of the Constitution. Indeed our Judiciary transformation Framework is grounded on value for money activities. To that end, we intend to harness ICT to ensure efficiency and effectiveness. We are developing standardized approaches to delivering information technology products and services to the courts.

REVENUE GENERATION BY THE JUDICIARY

The Judiciary is streamlining processes to ensure haemorrhage of funds is a thing of the past. We are now deploying accountants and auditors to administrative regions. Come the new financial year we shall no longer rely on District treasury officials. Further, we are working on introducing an electronic cash receipting system to eliminate fraud.

Parliament through legislative amendments and new statutes is steadily increasing the fines that were outdated and did not reflect the gravity of offences. This coupled with the efficiency of our financial system, the revenue collection of the Judiciary is projected to improve from the 800 million collected in the last financial period to at least 1.5 billion in the next financial year.

CONCLUSION

As I mentioned before, we are aware of the economic environment. We remain concerned, however, that across the board budget cuts could negatively impact the Judiciary. Unlike many Ministries, we do not have programs or grants that we can cut in response to a budget shortfall. Consequently, we could not reduce the scope or volume of our work if we faced deep funding cuts. People will still file cases in court.

We recognize fully the serious fiscal condition of the country and the need to restrain spending. However, a functional Judiciary is critical to the enhancement of our productivity as a country. Therefore spending on the Judiciary is an investment decision both for justice and for the economy.

As you consider Judiciary funding, we ask the Committee to take into account the nature and importance of our work. The Judiciary performs constitutionally-mandated core government functions that are a pillar of our democratic system of government. If sufficient funding is not provided to the courts, we cannot function in the way the Kenyans envisioned when they overwhelmingly voted for the new Constitution.

Finally, the Judiciary is one of the pillars of Vision 2030. As the economy grows, the cases in court will increase exponentially. We should take this opportunity to put in the building block of a vibrant and accessible Judiciary.

Chairperson Hon. Mbau, I hope that my testimony today provides you with some insight into the Judiciary budget estimates. We are committed to containing costs and exploring new and better ways of conducting court business. We are very concerned we are approaching a point where we may be sacrificing the quality of justice as a result of budget constraints. I know you agree that a strong, independent Judiciary is critical to our nation. I urge you to continue making the Judiciary a funding priority to enable us to establish high standards of the Kenyan Judiciary.

Thank you for your continued support of the Judiciary. I would be happy to answer any questions the Committee may have.

CJ'S REMARKS AT VETTING BOARD METTING

2012-04-30T16:05:00.001+03:00

The chairman of the Judges and Magistrates Vetting Board, Mr Sharad Rao, Distinguished members of the Board, among them Justice Georgina Wood of Ghana, Justice Fredrick Chomba of Zambia and Justice Albie Sachs of South Africa,

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

RESCUING NATIONALISM FROM VERNACULARISM

2012-03-15T11:57:00.004+03:00

RESCUING NATIONALISM FROM VERNACULARISM: THE CONSTITUTIONAL AND POLITICAL OBLIGATION TO BE KENYAN BY CHIEF JUSTICE DR WILLY MUTUNGA

SPEECH MADE AT THE ‘PEOPLE’S CONFERENCE ON NATIONAL DIVERSITY, ETHNICITY AND RACE’, HOSTED BY THE NATIONAL COHESION AND INTEGRATION COMMISSION (NCIC) AT KICC NAIROBI, 12^TH MARCH 2012.

The Prime Minister, Ministers, Ambassadors, Permanent Secretaries, Commissioners, Mr. Chairman, Citizens, friends, ladies and gentlemen:

I feel singularly privileged to speak at the ‘People’s Conference on National Diversity, Ethnicity and Race’. The timing of this conference is fortuitous as its substance is significant in Kenya’s continuing search for clarity around its identity. Coming just after the fourth anniversary of the National Accord and Reconciliation Agreement and in anticipation of a General Election, conversations such as these have a special significance in negotiating citizenship and nationhood.

Although I was asked to speak on the question of who is a Kenyan, I have expanded the focus of my remarks for reasons that will become apparent presently. And in doing so, let me start with an anecdote:

One of the biggest threats to nationhood has been the over-supply of the vernacular politician and vernacular Kenyan and a shortage of nationalists. Who is the vernacular politician or Kenyan? It is that person who views everything through the prism of the tribe. They equate national interest with ethnic interests. They are obsessed with ethnic hegemonic projects. They hold hollow but dangerous supremacist ideologies and, have invented false notions of ethnic entitlement, most of it anchored on exaggerated grievances, yet mostly fuelled by excessive greed. They revel in insults and derogatory remarks about other tribes and groups, as they descend into mindless orgies of mirth and self amusement. When they lose an argument, they rush to the defense of ethnic stereotype.

They are incapable of mobilizing across communities, and consider being referred to as the undisputed leader of the tribe as the ultimate political prize. They indeed treat it as a badge of honour. They excel in what divides us, and use their evil genius to create more divisions. They will never invest in the politics of issues, unless they are anthropological. When they are appointed to public office, their official trips to the countryside are regionally selective. They readily hide behind the community, when caught in a corrupt deal. They excel in rallying around the tongue; not the flag. They are sometimes very educated, professional and rich, but find satisfaction in spewing ethnic verbiage. They sometimes flaunt modern gadgetry as a mark of sophistication, but use these platforms to purvey sectarian drivel. Yet, both the vernacular politician and Kenyan thrive because they find fertile ground in the minds of Kenyans, who pretend to be powerless victims when caught imbibing this drivel. You cannot choose the days to be a nationalist and the days you will retreat to the comfort of ethnic cocoons. Being Kenyan is a full-time commitment. This country needs citizens who are Kenyans all the time; not those who are vernacular Kenyans most of the time. Just in case you forgot, Chapter Six is partly intended to eliminate this breed.

In Chapter Three, the Constitution is clear on who is a Kenyan: Anyone who is born in Kenya, or born of a Kenyan, is a citizen. Anyone who marries a Kenyan or applies for citizenship after living in the country for a certain period can become a citizen. That citizenship is universal and indivisible. But citizenship is not just a juridical concept; it is a sociological and political reality.

For the great majority, Kenya is the land of their birth. It is their home. This is where their lives are, and it is where they will be buried. They are Kenyans because they have no other nationality. Their idea of being Kenyan defines citizenship not just for themselves, but also for all others who seek to voluntarily join this nation.

For almost 50 years, Kenya has struggled to carve itself out as a distinct entity in the community of nations on the basis of its geography, attractions, potential and complex cultural heritage. It is the nation defined by peasants who died by the bullet clutching soil in their clenched fists as it is by those who were bewitched by its splendour and opportunities, and poured their energies into making it their home. It is a place of possibility for the human spirit to thrive in freedom, justice and dignity; a place to nurture hopes and dreams that could be bequeathed to future generations.

Yet, the idea of Kenya is also problematic. At independence, the responsibility of nurturing the nation’s hopes and aspirations passed to the new leadership. After all, history was already replete with examples of nations that had been forged on the basis of brute force and strong personalities alone. The results, in our case, are a mixed bag.

In spite of the many contradictions emanating from our competing hopes and dreams, a national character has emerged over time that is celebrated in the country’s remarkable successes across sport, innovation, academia, diplomacy, industry and creativity. No one has any problems recognising and embracing this Kenya – the world beater on the athletics track, the home of creative artists, industrious people and probing intellectuals. Kenya has a soul. Perhaps it also has a skeleton. The flesh and other details require work.

Diversity has been a painful resource for most of African countries. It has been the source - or even more accurately - the excuse for political conflict and instability. And, more recently, diversity has formed the basis for an emergent culture war on gender, sexuality, and reproductive health among others. However, I refuse to believe that diversity, or ‘differentness’, in and itself, is the cause of these conflicts. To a very large extent, it is the instrumentalisation of difference by the political class that has plunged our country into chaos, thereby undermining the emergence of a professional state of the Weberian variety. In our diversity, the political class has found and minted a negative currency for politics. The Kenyan political elite has achieved a remarkable feat in successfully conflating class and ethnicity thus eliminating traditional political ideology from guiding our political contests. In fact, they have succeeded in subordinating class to ethnic considerations in political discourse, which makes two Kenyans living in the slums or in the upmarket neighbourhoods, opt for different political choices. Our ethnic divisions have made us no respecter of our material conditions when making political choices. Instead we seem to derive a lot more useless value and satisfaction in ethnic esteem contests!

But this should not entirely surprise us. Our country, like most of African countries, was founded on divisions. The colonial state did not disguise its biases to serve a tiny elite and exclude the majority of the population. Kenya was founded on division; thanks to Lord Fredrick Lugard’s philosophy of Dual Mandate. Divide and rule has characterised the capture, use and abuse of state power. Ethnic groups, races, and other identity collectives have been brutalised or rewarded simply because of who they are. Ethnic profiling and stereotyping has become both a national fulltime and pastime. The discriminatory tendencies of the state inherited from the colonial period and perfected after independence, engineered severe shortages of public goods that severely undermined the nationalism project and negated the very foundation of the Kenyan nation.

This has institutionalised grievance, which exploded in our faces in 2007/2008. As we approach another election, I feel that the space for re-embarking on the nation-building project is reducing, and I find it worrying that we seem not to have learnt from the past, a least going by the utterances I hear, and the conduct I observe.

On August 27, 2010, we decided that we want to be a nation when we promulgated a new constitution. Sometimes, discussions on the Constitution appear abstract, thus obscuring the underlying truth (or is it assumption?) which is that Kenyans have considered the idea and decided that they want to be together.

The Constitution, in its preamble, celebrates the pride of Kenya’s ‘ethnic, cultural and religious diversity’, and proclaims our ‘determination to live in peace and unity as one indivisible sovereign nation’. The founding values and principles articulated in Article 10 highlight inclusiveness, non-discrimination, equity, and protection of the marginalised. The Constitution recognises culture as the foundation of the nation and as the cumulative civilisation of the Kenyan people and nation. Equality, diversity, is sprinkled in the entire document, including Chapter Thirteen on the public service. The constitutional commitment to equity and fairness is further reinforced in the devolved system of government that is in Chapter Eleven.

But being together is not the same as being united. There is nothing preordained and natural about Kenyans being together. It is a deliberate decision on the part of the citizenry, a choice we have freely made. We have signed a social contract among ourselves, and with our leadership now and in the future. That is why in the preamble we are exercising our sovereign and inalienable right to determine the form of governance in our country and adopt and enact the constitution to ourselves and to future generations. The boundaries of this nation, and the communities within it, will only remain if we respect the terms of that social contract.

Contracts are supposed to be performed. They contain rights and obligations. We have a duty as Kenyans to obey the law and to uphold the Constitution. In return, the state has a duty to protect life and property as well as to offer services.

Self determination and breakaway tendencies are part of human history not so much because those who lead them have a reflexive appetite for war and fragmentation, but because there is a failure to honour the social contract, or a political practice characterised by marginalisation, or lack of respect for the other, and frustration of the aspirations for some.

This country must not delude itself that it is inured from these afflictions. We must be careful. We must be sensitive. We must daily invest in the nation building project. In our conduct, our conversations, and decisions, we must demonstrate an interest in the survival and development of Kenya as a nation state. In this respect, every individual, every leader, every voter has a duty, a responsibility and an obligation.

Since national identity is inclusive, it has got to be negotiated as broadly as possible. It cannot be the exclusive province of a few. Citizenship is the great political equalizer that gives like voice to those at the centre as at the periphery. Because of the temptations to disengage from the centre, building a nation requires not just the consent, but also the active participation of those at the periphery. At the core of the nation must be rationale as well as guarantees of protection for those at the periphery to feel a part of the whole than if they were alone.

When we refer to certain regions as economically unviable, it is important to realize that this phraseology is loaded with stigma and discrimination. There is no region that is unviable. The world is replete with examples of deserts that have transformed into economic power houses – Israel, Dubai, Singapore and many more. Any leader who regards and refers to any region in this country as unviable is questioning the very viability of his or her own leadership. It merely demonstrates a remarkable poverty of ideas; a paucity of imagination; and a deficit of ambition. The language of high potential and low potential is a myth -- it is manifestly discriminatory, and has been used historically as a fig leaf behind which to hide to share state resources in an inequitable manner. These are the tendencies that undermine notions of citizenship. Besides, the constitution decrees devolution and equitable distribution of resources.

In numerous instances, the deliberate or unintended sabotage of certain hopes and dreams has alienated significant portions of the population from the idea of Kenya as a common good, a place of freedom, justice, dignity, self-actualisation and opportunity.

We cannot build a nation on the foundation of rhetoric alone. We must express our intention, but also follow it with action. We must demonstrate that something has changed. We must crack the constitutional whip to ensure that political parties that intend to obtain registration and participate in elections do not organise around our divisions – ethnic, regional, ability, or gender. We must design our electoral processes so that they embrace minorities.

Our citizenship must be universal, where every individual enjoys the civic rights granted by the Constitution even as he or she retains his or her other identities, including the ethnic one. We must ensure that those who attempt to trample on the rights of citizens do not find comfort in public office.

We must also fully discharge our obligations to each other as individuals who are part of this polity. These obligations start from the basics of requirements: respect for each other as individuals, as well as respect for communities and other identity groups. It is socially obnoxious, politically reckless, and economically ignorant to cheapen the presence of any community in this country by making derogatory remarks as has been all too evident in our country’s history. It is only the weak minded, people incapable of comprehending the origins of the modern state, its philosophy, its instruments and its edicts that resort to such approaches in managing expressing disagreement. Thus when I hear leaders warning whole communities that Kenya has its owners, I wonder whether such leaders appreciate the unconstitutionality and illegality of such comments.

Just as a fish that grows in a pond may consider itself the king of the sea until it is introduced into the ocean, we too must also awaken to the reality that our ethnic and sectarian interests may only matter if we are disconnected from the rest of the world. Unless we all recognise that Kenya is a confederation of cultures, languages and interests, we shall never be able to cultivate the sensitivity and respect for one another necessary to hold us together. We might never live up to true greatness as a member of the community of nations because we overstayed our welcome in the pond when the ocean beckoned.

The things that are seen to divide us – ethnicity, religion, race, class, clan, region, occupation, sexual identity, generation, disability – are also the raw materials needed to create the mosaic of one nation.

I also want to caution that pejorative commentaries, sometimes excessive even in comedy, should be purged from our national discourse. Negative ethnic profiling is sometimes aided by excessive parody. What was essentially parody sediments into ‘truth’ and the rest of us begin to make decisions in real life based on the emerging caricatures. I enjoy comedy, and I would be the last person to suggest that anybody should censor it, but let us give a thought to instances when well meaning activity may end up hurting the broader public interest. Comedy should complete the cycle by celebrating our idiosyncrasies, and deliberately banish any notions of ethnic hierarchy that may unwittingly be transmitted.

In our continuing search for identity, we need to settle the question of the philosophy that defines our nationhood not just as Kenyans, but also as Africans. We need to search and find that symbol of nationhood that will inspire us to create a just, peaceful society we all desire to live in.

The creation of the National Cohesion and Integration Commission in the aftermath of the sad events following the 2007 elections is an attempt to begin this conversation. It must seize the moment to align our daily endeavours towards nurturing a truly nationalistic culture. Beyond the commission, all Kenyans have a duty to construct the nation’s identity by embracing diversity, tolerance and respect for one another. Press coverage of the identity problem treats it as a problem only in the public sector. I think that this problem is probably more acute in the private sector. NCIC owes this country an audit on ethnic concentration in terms of employment, contracts, and promotion. We must cultivate a culture of tolerance draw from the spirit of the Constitution; the edicts across religions. NCIC needs to conduct attitudinal surveys so that we can improve on our tolerance levels and eliminate trust deficits.

In the Judiciary, we have acknowledged the challenges we have faced in the past in this regard. We shall partner with the NCIC within the context of the National Council for the Administration of Justice (NCAJ) to help NCIC deliver on its statutory mandate particularly in the context of the coming elections.

The Judiciary itself faces these challenges of diversity. Only recently in a station not too far from here, three of our judges stared the problem in the eye when the paralegal staff from one community boycotted a luncheon the judges had hosted because their colleagues had accused them of speaking in their local dialect while at work!

In conclusion, I know that while identity can be a puerile matter it can still be quite rewarding to some people. I am privileged to come from a profession, the law, that long recognized equality of human beings long before other disciplines. Physiologists now tell us that you cannot identify people’s identities through any other body’s organs such as the heart, brain etc. The Human Genome Project showed that we are 99.9 per cent the same. That, of the nearly 30,000 genes in the human body, the diversity within races and tribes is much higher than between them. It is still amazing that despite this evidence from science, a perversion of difference capture a large segment of our intelligent minds. Further, sameness is no guarantor of stability and harmony. Somalis and Koreans are some of the most homogenous people on every front: looks, culture, language, religion – yet we all know that these countries have been at war for many years. It is not enough to just look alike, or speak the same language. And a corollary to the right that we are all equal is the fact that none of us is better than the other on account of ethnicity or other identities. Nobody should be punished or rewarded on the basis of identity.

Finally, ladies and gentlemen, I hope that this conference and the deliberations that emanate from it awaken all citizens to the great responsibility each one of us bears in fashioning, perfecting and sustaining the Kenyan nation. As Kenyans we should daily ponder what brand of Kenyans we are. Are you a vernacular Kenya or are you a nationalistic and patriotic Kenyan?

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

Chief Justice and President of the Supreme Court

Republic of Kenya

BLAME NEITHER THE CONSTITUTION NOR THE COURTS

2011-12-15T06:51:00.000+03:00

PRESENTATION OF HONORARY DOCTORATE TO GEORGE BIZOS SC

DELIVERED AT SPRING GRADUATION CEREMONY
9 DECEMBER 2011

It is my sincere pleasure to be with you all today. I first want to thank the University of Pretoria for conferring this honour upon me. Being here today reminds me of the establishment in 1986 of the university's award-winning Centre for Human Rights as part of the efforts against apartheid. We should all be proud to be associated with a university whose Centre for Human Rights has made significant and numerous contributions to the advancement and strengthening of human rights and democracy across the African continent and abroad.

The title of my address today is "Blame Neither the Constitution nor the Courts." There have been many criticisms levelled against the Constitution and the courts, most of which are, in my view, unfair, unjustified and uninformed. Today I would like to discuss one particular target of criticism, namely, the ability of the Courts to declare government law or conduct that is inconsistent with the Constitution to be invalid.

We have seen in recent times many criticisms of the role of the courts in our constitutional democracy. I offer a few examples:

In an interview published in The Sowetan, Mr Gwede Mantashe, Secretary-General of the ANC, is quoted as saying that '...the judiciary is actually consolidating opposition to government' and that 'there is a great deal of hostility that comes through from the judiciary towards the Executive and Parliament,' and that judges were 'reversing the gains of transformation through precedents.'

Similarly, an article published by Adv Ngoako Ramatlhodi, chairperson of the Parliamentary Portfolio Committee on Justice and a member of the Judicial Service Commission stated that our constitutional framework reflects 'a compromise tilted heavily in favour of forces against change' and that 'power was systematically taken out of the legislature and the executive to curtail efforts and initiatives aimed at inducing fundamental changes. In this way, elections would be regular rituals handing empty victories to the ruling party.'

During the Third Annual Access to Justice Conference in Pretoria, on July 8th 2011, President Zuma gave a speech where he said: 'Political disputes resulting from the exercise of powers that have been constitutionally conferred on the ruling party through a popular vote must not be subverted, simply because those who disagree with the ruling party politically, and who cannot win the popular vote during elections, feel [that] other arms of the State are avenues to help them co-govern the country. This interferes with the independence of the judiciary. Political battles must be fought on political platforms.'

Less than four months later, on November 1st 2011, in a speech given during a parliamentary hearing to say farewell to Chief Justice Ngcobo and welcome Chief Justice Mogoeng, President Zuma stated: 'we also wish to reiterate our view that there is a need to distinguish the areas of responsibility, between the judiciary and the elected branches of the State, especially with regards to policy formulation. Our view is that the Executive, as elected officials, has the sole discretion to decide policies for government.'

These criticisms have led to a number of recent lectures and papers on the role of the judiciary and the executive. Today I wish to contribute to that dialogue.

I start with a recent quote from my friend and fellow advocate Geoff Budlender, who said: 'The theory that the executive has a monopoly of wisdom on policy questions, based on a democratic mandate, strikes me as somewhat remote from reality.'

The tension between the executive and the judiciary is not new to South Africa. In the 1897 case of Brown v. Leyds N.O. , then Chief Justice Kotzé held that the besluiten (informal laws passed without notice by a simple majority vote) were invalid on the ground of incompatibility with the Grondwet (the Constitution). He held that sovereignty vested in the people of the Republic and not in the Volksraand (the South African Parliament at that time); that the Constitution created fundamental law with which Parliament was obliged to conform; and that it was the duty of the court to declare invalid measures which were not in conformity with the Constitution.

John Dugard describes what happened next:

'Kotzé C.J.'s judgment precipitated a major crisis, as its effect was to nullify a large body of legislation with the result that it could "safely be said that not a single institution in the land was legal." President Kruger's reaction was to push a bill through the Volksraad denying the constitutional competence of the judiciary to exercise the testing right, and empowering the President to dismiss any judge who failed to assure him that he would not exercise the "so-called right of testing." In response, the judges adjourned the High Court sine die. At this stage Sir Henry de Villiers, Chief Justice of the Cape Colony, arrived on the scene and, after discussions with both Bench and President, secured an agreement that the judges would forego the testing right in return for an amendment to the Constitution guaranteeing the independence of the judiciary and protecting the Constitution from amendment except by special procedure. The President, however, delayed the introduction of such legislation and Kotzé C.J. informed him that his undertaking not to exercise the testing right had consequently lapsed. The President thereupon dismissed his Chief Justice, and Kotzé after publishing an Appeal to the Inhabitants of the South African Republic, in which he warned of the dangers of Volksraad supremacy, left the Bench.' (emphasis added)

Later John Dugard writes:

'The final word on the judicial crisis belongs to President Kruger. At the swearing-in ceremony of the new Chief Justice, R. Gregorowski, he enunciated a biblical-trekker legal philosophy which still haunts the minds of South African judges and lawyers. "The testing right is a principle of the Devil," he warned. The Devil had introduced the testing right into Paradise and tested God's word. Judges accordingly were advised not to follow the Devil's way, as Kotzé C.J. had done!'

More than half a century later, in 1951, the National Party Government enacted legislation that disenfranchised coloured voters. A group of coloured voters challenged the enactment in the case of Harris v. Minister of the Interior (the Vote case) in which the Appellate Division in a unanimous judgment delivered by Chief Justice Centlivres found that the act was of no legal force.

Once again, John Dugard provides a succinct description of what happened next:

'The Government's response was to pass, again by the ordinary bicameral method, the High Court of Parliament Act, which provided that any judgment of the Appellate Division invalidating an Act of Parliament was to be reviewed by Parliament itself, sitting as a High Court of Parliament. After this High Court had set aside the decision in the Vote case, the High Court of Parliament was itself struck down by the Appellate Division in Minister of the Interior v. Harris (the High Court of Parliament case). This time the five judges (Centlivres C.J., Greenberg, Schreiner, Van den Heever, and Hoexter JJ.A.) gave separate judgments in which they all found that the High Court of Parliament was not a court, but simply Parliament in disguise, and that the entrenched sections envisaged judicial protection by a proper court of law. Legislation such as this, which deprived the entrenched sections of their judicial protection, could not be passed by the ordinary bicameral procedure.'

These are but two examples of numerous disputes between the executive and the judiciary in South Africa. These are also two examples of how the apartheid regime responded when it was unhappy with the judiciary. I hope that our current ruling party does not intend to follow either the regime's example or that of President Kruger. But I do have some concerns. The courts, as well as the individuals and organizations that bring human rights cases against the executive, to whom some impute false motives, have been subject to severe criticisms bordering on demonization.

South Africa is a constitutional democracy. All power, whether of Parliament, the executive or the courts, must be exercised in accordance with the Constitution, which is the final word on the powers and roles of each branch. The court is the guardian of fundamental rights and provides a forum for public debate so that the exercise of public power by democratically elected persons remains accountable. Judges' interpretations support the rule of law, not executive whims, and judicial review allows courts to declare law or conduct that is inconsistent with the Constitution to be invalid.

The process of drafting the South African Constitution was a long one that involved many people. There were many disputes and negotiations broke down for a time. Shortly after his release, Nelson Mandela visited the ANC Committee entrusted with drafting a proposed Constitution for South Africa of which I was a member. He said to us, 'Draft a Constitution that is good for South Africa as a whole and not only for the ANC.' And that is what we did. The Interim Constitution of 1993 contained 34 constitutional principles with which the new Constitution was required to comply. The Constitutional Assembly engaged in a massive public participation programme to solicit views and suggestions from the public. In1996, a new text was adopted with the support of 86 per cent of the members of the assembly and was sent to the Constitutional Court for certification.

The Constitutional Court had been established in order to adjudicate as an independent and impartial body free of any political interference. Judges were to be (and still are) appointed by the President on advice of the Judicial Service Commission. At the time of the appointment of judges to the Constitutional Court, the Commission was accused of having chosen judges that were either members or supporters of the ANC and who would favour the ruling party.

Imagine the critics' surprise when the Constitutional Court unanimously refused to certify the first text of the Constitution, which had been supported not only by an ANC majority, as a number of its provisions did not comply with certain constitutional principles. Parliament took note of the Court's reasoning, amended the first text, and on December 4, 1996, the Court certified the Constitution, which was signed by President Mandela a few days later.

About a year after Nelson Mandela became President, the Constitutional Court heard an urgent application challenging legislation that purported to confer powers on the President to legislate, which President Mandela did by way of proclamations. The proclamations dealt with the vital local government elections that were soon to be held. An application was brought on the basis that the legislature may not empower the President to legislate and to the extent that the President purported to do so, he acted in conflict with the Constitution. Mr Mandela was named as one of the respondents.

The challenge was successful. In an 89 page judgment, the Court held that the provision purporting to empower the President to amend the legislation was inconsistent with the Constitution. That was a function of Parliament and not within the President's powers. This despite that all political parties had agreed that the President should have the power to do what he did.

That same day, Mr Mandela rushed to the television and radio stations of the SABC and declared that he had signed the proclamation believing that he had the power to do so but that he respected the decision of the Constitutional Court and appealed to all concerned to similarly accept the Court's decision. He announced that he would recall Parliament to pass legislation necessary for the elections to be held. What a pity that some of Mr Mandela's successors have not followed his example. Many current government office holders have spoken out against the Court's role in ensuring that the government acts consistently with the Constitution.

Since its inception, the Constitutional Court has invalidated a number of government laws and actions. But the constitutional check on government laws and actions is not the exclusive judicial domain of the Constitutional Court. Recently, on December 1st 2011, a five-judge panel of the Supreme Court of Appeal declared President Zuma's appointment of Adv Menzi Simelane as national director of public prosecutions to be unlawful. The decision serves as a reminder to the President that he is not above the law.

The Court in Simelane cited the 1997 case of Hugo in which Krigler J said: 'Ultimately the President, as the supreme upholder and protector of the Constitution, is its servant. Like all other organs of state, the President is obliged to obey each and every one of its commands.' Citing from a speech of former Chief Justice Mahomed, the Court in Simelane also wrote:

'Dealing with critics who suggest that the power vested in the judiciary to set aside the laws made by a legislature mandated by the popular will, itself constitutes a subversion of democracy, former Chief Justice Mahomed, in an address in Cape Town on 21 July 1998 to the International Commission of Jurists on the independence of the judiciary, stated the following:

'That argument is, I think, based on a demonstrable fallacy. The legislature has no mandate to make a law which transgresses the powers vesting in it in terms of the Constitution. Its mandate is to make only those laws permitted by the Constitution and to defer to the judgment of the court, in any conflict generated by an enactment challenged on constitutional grounds. If it does make laws which transgress its constitutional mandate or if it refuses to defer to the judgment of the court on any challenge to such laws, it is in breach of its own mandate. The court has a constitutional right and duty to say so and it protects the very essence of a constitutional democracy when it does. A democratic legislature does not have the option to ignore, defy or subvert the court. It has only two constitutionally permissible alternatives, it must either accept its judgment or seek an appropriate constitutional amendment if this can be done without subverting the basic foundations of the Constitution itself.'

These statements are beyond criticism and apply equally when actions or decisions by the executive are set aside.'

We should refrain from expressing a view on the correctness or otherwise of the Simelane decision as the Constitutional Court may hear the matter.

Anyone who suggests that any of the five judges who decided the Simelane case are "apartheid-era" or "apartheid-style" judges is seriously misinformed. None are. The four permanent judges on the panel were appointed to the Court of Appeal by the Judicial Service Commission. The fifth, an acting judge, was appointed by the present Minister of Justice and promoted to the Court of Appeal as an acting judge. Two of these judges devoted the greater part of their professional lives to working for the Legal Resources Centre. The Commission, the majority of whom are members of Parliament and nominees of the executive , under the guidance of former Chief Justices Michael Corbett, Ismail Mahomed, Arthur Chaskalson, Pius Langa, Sandile Ngcobo and Mogoeng Mogoeng, has had due regard to its constitutional duty to transform the judiciary, which, in my view, it has done successfully.

The Cabinet's pronouncement just two weeks ago that it will appoint a body to assess the decisions of the Constitutional Court must give rise to great concern. This undefined and amorphous assessment body dangerously risks repeating our unhappy history.

In terms of the Constitution, the Constitutional Court has no right to formulate government policy, but it does have the right to adjudicate whether the implementation of government policy results in the deprivation of rights. The Constitutional Court has often drawn attention to this distinction between policy creation and rights compliance. One need only read the Court's judgments in Grootbroom , the HIV case and the very recent unanimous judgment of the Court, authored by Justice Johann van der Westhuizen, in Blue Moonlight for clear examples. Those who are preparing to assess court judgments may reconsider the necessity of their proposed action if they and their advisors read the judgments. They may even begin to question whether the proposed assessment body will pass constitutional muster.

Any such body may be construed as a challenge to the independence of the judiciary, a value that we as South Africans should hold very dear. At this stage there are more questions than answers:

• What does "assess" mean?
• What will they assess?
• Will they assess the judgments, the judges or both?
• Who will conduct the assessments?
• How will the assessors be selected?
• Will the assessment body hold hearings?
• Will the lawyers who represented the parties be interrogated?
• Will judges have to offer additional explanatory reasons for their judgments?
• Is this going to be a new court of appeal and subvert the Constitutional Court, the highest court of the land?
• Will this open the floodgates to thousands of applications from those who lost before the courts?
• Did the cabinet have regard to the sections of the Constitution that guarantee the independence of the courts and prohibit anyone from interfering with court decisions?
• Will there be a challenge to the constitutionality of such an assessment body?
• And most importantly: for what purpose and to what end is this body to be established?

I do not have the answers to these questions. But here is what I do know. Court judgments, in which judges set out the reasons for their decisions, are public. These judgments are already commented on by the media, academics, journalists, and many others through public dialogue. What need is there for an executive-appointed assessment body to comment on these judgments? Will such a body have an adverse impact on the public perception of judicial independence, impartiality and integrity? Will such a body be perceived by some as an implied threat to the judiciary to toe the line? Will such a body demean the proper administration of justice?

Judges are not infallible. And that is why we have superior courts to which one can appeal. There is no reason to establish a new oversight body not provided for in the Constitution. Nobody likes losing cases but this idea of assessing the decisions of the Constitutional Court, or any other court for that matter, is neither prudent nor wise. Any such assessment body would take the people of South Africa down a road that is unconstitutional, unreasonable, unsustainable, and that must be construed as nothing less than a resurgence of the methods of the apartheid regime.

How ironic that the very party that fought so hard against apartheid is now considering adopting one of the regime's most devious methods. The idea of assessing the courts is completely contradictory to the spirit, purpose and object of the Constitution and to the legacy of Nelson Mandela. Those responsible for conceiving of this assessment body should take the trouble to read section 165 of the Constitution, which guarantees the independence of our courts.

I believe there may in fact be a need for assessment but not an assessment of the work of our courts. Rather, the executive would be well advised to look in its own backyard and assess the constitutional validity of its laws and policies. If these laws and policies are contrary to the provisions of the Bill of Rights or other parts of the Constitution, the Courts are obliged to declare the laws and policies, or the implementation of any part thereof, to be invalid.

HOPE FOR THE FUTURE

I have been practicing law since 1954 and did so particularly during apartheid. I reject any suggestion that little has changed in South Africa since the Constitution. Tremendous advances and fundamental changes have come about, particularly in relation to the administration of justice. During apartheid, judges and magistrates, with rare exceptions, were keen supporters of the apartheid regime and believed in the superiority of the white man. Today we have an independent judiciary, a Constitution which is admired both within and beyond our borders for its Bill of Rights, and safeguards to prevent breaches of these enshrined rights.

Reasoned criticisms of the Constitution and the Constitutional Court by anyone – politician or citizen, lawyer or non-lawyer – are welcomed and indeed are integral to our functioning as a constitutional democracy. But they must be well-informed, rational and reflective of the law.

The resilience of the human spirit is a powerful thing. I have always been touched by the innate goodness, incredible generosity and unyielding courage of the human spirit, particularly of those who suffer most. It is not only well known leaders whom I admire, but also the women in rural areas who burned their passes, the children who refused to attend school on the first day Bantu education came into being, the men who challenged their banning orders, the men and women who were detained without trial, the family members whose sons and daughters were executed, and many others.

They are responsible for my optimism. It is why I defended hundreds of political prisoners during apartheid despite repeated threats from the regime. It is why, at the age of 83, I continue to practice law. It is why I am so honoured to be with all of you here today: to spread the message and to see your young faces full of hope and optimism. Please do not lose that.

The effect of a Constitution on a society does not depend entirely on the content of the Constitution itself. The Constitution can only provide a state with the tools to govern. How those tools are used depends on those elected to govern.

Our Constitution entrenches some of the deepest values that we share as a people. The Constitution does not and indeed cannot provide easy solutions to all of the moral, social, economic and political dilemmas that we face. We have agreed to the principles, but the application of these principles to specific cases must be done in the courts and through public dialogue. The pursuit of justice is a never ending struggle and in defining our rights, there will of course be times when we disagree, but each day, through court judgments and public dialogue, we reinforce the shared values in our Constitution that unite us as a country.

We must recall the words of prosecutor Benjamin B. Ferencz who, during the Nuremberg Trials following the defeat of Nazi Germany, said: "There can be no peace without justice, no justice without law and no meaningful law without a court to decide what is just and lawful under any given circumstance."

The history of South Africa is a dark one stained with profound injustice. But today the principles of equality and dignity govern. As global citizens, it is our responsibility to articulate the discourse around human rights in order to foster its continued development in South Africa and its continued growth all over the world. This is hard work, but let us be hopeful that this generation will meet those challenges and ensure that justice is protected in order to foster the spread and growth of democracy, the rule of law and human rights where they are needed most.

Injustice in South Africa is far from conquered and there will be many challenges in the future. But if we follow the Constitution, our most fundamental law, I am optimistic that we will not go wrong.

George Bizos SC

9 December 2011

Pretoria

Adieu .....

2011-09-02T17:03:00.000+03:00

Justice Mumbi Ngugi congratulated by the President upon being sworn in as Judge of the High Court

I was sworn in today, 2^nd September 201,1 as a judge of the High Court of Kenya. As part of a team of 27 HighCourt Judges, I join the bench, after a competitive, rigorous and transparent process under a new Constitutional dispensation that values freedom, transparent, accountability and all those national values set out in Article 10 of the Constitution. I have of course been reflecting on what happens to this blog. For me, it has been a labour of love and a space where I can think aloud without the usual constraints that accompany old media. As an advocate I had the freedom to think aloud and make comments on any issue. My current position now makes this difficult. Judicial service comes with an obligation to be independent, impartial. A opinion blog like may lead the public to a different conclusion.

The Public Officers Ethics Act, 2003 (No. 4 of 2003) Judicial Service Code of Conduct and Ethics established by the Judicial Service Commission under section 5(1) of the Act provides as follows;

RULE 14

PUBLIC STATEMENTS AND COMMUNICATION WITH THE PRESS

1. A judicial officer and any officer in the Judicial Service shall not make public statements on matters affecting Government programmes or policies of the Judicial Service without the specific authority of the Chief Justice. A public statement includes communicating with the press;

2. A judicial officer shall not, without express permission of the Chief Justice:

(a) act as the editor of any newspaper or take part directly or indirectly in the management thereof; nor

(b) publish in any manner anything which may be reasonably regarded as of a political or administrative nature, whether under his own name, under a pseudonym or anonymously.

3. A judicial officer, and any officer in the Judicial Service whether on duty or on leave of absence, should not allow himself to be interviewed on questions of public policy affecting Kenya or any other country without the permission of the Chief Justice.

4. Whilst it is not desired to interfere with a judicial officer’s liberty of free speech, any lack of discretion on his part likely to embarrass the Government or the Judicial Service may result in appropriate consequences for the officer responsible.

This is not a easy or simple matter as Article 168 of the Constitution provides that a judge of a superior court may be removed from office only on grounds of, "a breach of a code of conduct prescribed for judges of the superior courts by Act of Parliament."

I hope that in the future that this there will be discussion how judicial officers can contribute to public discourse about administration of justice and rule of law, of course having regard to their ethical obligations to be independence. After all, the Constitution provides that judicial authority is derived from the people in whose name it is exercised.

Thank you all for your support in immeasurable ways. The proceedings on this blog are now adjourned sine die ….

Githu Muigai Appointed Attorney General

2011-08-29T08:02:00.000+03:00

Githu Muigai, Attorney General courtesy of Capitalfm

I would be remiss if I did not mention that the distinguished law professor, Githu Muigai has been appointed the Attorney General succeeding the long serving Amos Wako. Professor Muigai's credentials are impeccable and it is not surprising that he is the only survivor of the ill fated legal trio whose nominations were sunk by the court. Prof. Muigai is expected to be sworn in today.

Supreme Court Judges Sworn in, High Court Judges Appointed

2011-08-28T16:27:00.000+03:00

(Sitting Left to Right) Njoki Ndung'u, JSC, Dr Willy Mutunga, CJ, President Kibaki, Nancy Barasa, DCJ, Mohammed Ibrahim, JSC, (Standing Left to right) Philip Tunoi, JSC, Dr Smokin Wanjala, JSC, Glady Boss-Shollei, Chief Registrar, Prof. Jackton Ojwang', JSC

The 1st Anniversary of the Constitution is here. Changes abound and reform continues ......

Supreme Court Judges

After dismissal of the case filed by FIDA on Thursday, 25th May, the Supreme Court Justice were sworn in the next day Friday. The Supreme Court, which is the apex court in the judicial hierachy is expected to be the final arbiter of the contentious legal issues of the day. It is important to point out that the court has no original jurisdiction to hear constitutional cases. Similarly, the court will have to decide the extent of its advisory jurisdiction after the Court of Appeal declined to express its view on the matter by declining jurisdiction. The main agenda for the court now will now be the promulgation of its rules under Article 163(9).

High Court Judges

The Judicial Service Commission (JSC) announced the appointment of 28 High Court judges. Prof Ngugi Joel Mwaura, Ngugi Grace Mumbi (Ms.), Mutava Joseph Mbalu, Muriithi Edward Muthoga, Nyamweya Pauline (Ms.), Kimondo George Kanyi, Majanja David Amilcar Shikomera, Githua Cecilia Wathaiya (Mrs.), Jaden Thuranira Beatrice Nthiori (Mrs.), Korir Weldon Kipyegon, Grace Lidembu Nzioka (Mrs.), Meoli Christine Wanjiku (Mrs.), Ong’undi Hedwig Imbosa (Mrs.), Mutuku Stella Ngali (Ms.), Wakiaga James, Ougo Rose Edwina Atieno (Mrs.), Ogola Erick Kennedy Okumu, Odunga George Vincent, Stella Munai Muketi (Mrs.), Havelock Jonathan Bowen, Chemitei Hilary Kiplagat, Makau James Aaron,Tuiyot Francis, Korir Roseline Cherotich Lagat (Mrs.), Mwongo Richard Mururu,Mabeya Alfred, Achode Lydia Awino (Mrs.) and Mshila Abigail (Mrs.). The Chief Justice described the choices as "excellent", saying the JSC was guided by the constitutional values of transparency, openness and fidelity to the law. "We have picked candidates from rich diversities decreed by the Constitution and law, including gender, ethnicity, county, generation, minorities and other forms of marginalisation. We have recruited 14 women, two Kenyans in the Diaspora, a Kenyan European, a woman with albinism, 11 serving magistrates and this representation is also from various countries." The judges are expected to be sworn in on 30th August 2011.

Chief Registrar of the Judiciary

The JSC also announced the appointment of Gladys Boss-Shollei as the Chief Registrar of the Judiciary. She takes over from Ms Lydia Achode who is now a High Court judge. The Chief Registrar of the Judiciary is an office established under Article 161(2)(c) of the Constitution and is designated as the chief administrator and accounting officer of the the judiciary. The Chief Registrar is also the secretary of the JSC and administrator of the Judiciary Fund.

South Africa President nominates Chief Justice

In the meantime, President Zuma nominated Justice Mogoeng Mogoeng', a judge of the Constitutional Court, as his nominee for the position of Chief Justice of South Africa. The Judicial Service Commission is set to hold public hearings next month. The nomination has stirred controversy and more details can be found here.

Land Disputes Tribunal Act to be repealed.

2011-08-18T18:44:00.000+03:00

The proposed Land and Environment Court Bill, 2011 proposes to repeal the Land Disputes Tribunal Act (LDTA). I think the LDTA was a political palliative for the wananchi. The thinking at the time was that the wananchi would be happy to have their disputes resolved by the wazees rather than the courts which were considered. This Part III of the Magistrates Court Act was thus repealed to pave way for the Land Disputes Tribunals. I don’t think the Act was useful in resolving land problems because it turned out that the High Court held, in several judicial review cases, that the Tribunals had no jurisdiction to deal with matters affecting title to land. The repeal of the land jurisdiction of the Magistrates Court, merely meant that the High Court took up most of the cases relating to land. Repeal of the Land Disputes Tribunal Act without more will put enormous pressure on the proposed Environment and Land Court. This provision should be accompanied by a suitable amendment to the Magistrates Court Act enabling subordinate courts to deal with a defined class of land cases..

Some cases and comment.

2011-08-17T14:08:00.001+03:00

Authority to commence prosecution for Anti-Corruption Offences

Under the provisions of Anti-Corruption and Economic Crimes Act, sections 35, 36 and 37, the Kenya Anti-Corruption Commission (KACC) must report its investigation to the Attorney General and its report, it may recommend prosecution of a person for corruption or economic crimes. The AG may, in turn, either accept or regret the recommendation to prosecute. Where the AG rejects the recommendation to prosecute, his report to the National Assembly shall set out the reasons for not accepting the recommendation.

In the case of Nicholas Muriuki Kangangi –vs- The Attorney General Nairobi Civil Appeal No. 331 of 2010 (unreported), the Court of Appeal considered the case where the accused, charged under the provisions of the Anti-Corruption and Economic Crimes Act, challenged his prosecution on the basis that the prosecution was conducted in violation of the Act. The accused, after investigation by KACC, was charged through the Kenya Police for offences under the Act. The Court of Appeal held that the charges were ultra vires the Act as it was clear that the procedure prescribed by the Act was not followed. In essence, the court held that KACC cannot circumvent the provisions of the Act, by enlisting the Kenya Police to prosecute the matter where the Attorney General has not accepted the recommendation to prosecute the accused for charges under the Act.

The proposed Independent Ethics and Ant-Corruption Bill, 2011 seeks to grant the successor commission power to prosecute any matter within its mandate.

Legal Contortion and Stay of an injunction

The Court of Appeal has been criticized for its formal and legalistic approach to issues. One of the controversial issues that comes up from time to time is whether the court in exercise of its jurisdiction under Rule 5 (2) (b) of the Court of Appeal Rules can stay an order of injunction issued by the High Court. Though the court has been divided on this issue the preponderance of authority is that it cannot do so because the effect of such an order would be to dissolve the injunction before hearing of the appeal. In the case of Interim Independent Electoral Commission &Another –vs- Paul Mwangi [2011] EKLR, the Court of Appeal held that the overriding objective principle under enacted by sections 3A and 3B of the Appellate Jurisdiction Act entitled it to consider the peculiar circumstances of the case and issue an order “suspending the operation of the injunction issued by the High Court.” The order was issued under prayer D of the Motion which prayed, “that court issue, such further, other and consequential orders this Honourable Court deems fit and just. “ In a warning reminiscent of Bush –vs- Gore the court stated, "We must caution however, that it is not in all cases that an omnibus prayer as couched in “prayer [D]” would attract independent orders. As stated earlier, this is a peculiar case.” The court actually struck out all the substantive prayers for injunction. But for the overriding objective the application would have had no legs to stand on.

Appellate Jurisdiction and the Courts of High Court Status

2011-08-16T16:46:00.000+03:00

In the case of the Interim Independent Electoral Commission & Another vs Paul Waweru Mwangi Civil Application No. NAI 130 of 2011 (unreported) (eKLR) (the Kamukunji By Election Case), the Court of Appeal had this to say about its jurisdiction, “The jurisdiction of the Court of Appeal as provided in Section 164(3) of the Constitution is not different form its jurisdiction under Section 64(a) of the former Constitution. It is limited to “hear appeals from the High Court” and in any other Court which Parliament may prescribe….” The Constitution at Article 164(3) provides that the Court of Appeal has jurisdiction to hear appeals from (a) the High Court and (b) any other court or tribunal as prescribed by an Act of Parliament. Accordingly, then the scope and exercise of appellate jurisdiction must be in accordance with the provisions of the statute. At common law a court has no jurisdiction to hear an appeal against a decision of another court. It can only do so if that authority is conferred on it by the statute under which it is constituted, and then it must function in terms of that statute.

Section 16 of the Environment and Land Court Bill, 2011 provides that “Appeals from the Court shall lie to the Court of Appeal against any judgment, award, order or decree issued by the Court in accordance with Article 164(3) of the Constitution.” This kind of provision is not helpful as it merely re-states the power of the Courts to hear appeals. Appeals from the High Court exercising civil and criminal jurisdiction are regulated by the Civil Procedure Act and the Criminal Procedure Code. As a general rule, where the High Court exercises original jurisdiction, there is a direct right of appeal and to the Court of Appeal. Where the High Court exercises appellate jurisdiction, the second appeal is usually limited to matters of law. Interlocutory appeals are limited by way of provision for leave from either court.

As drafted section 16 means that the Court of Appeal will be inundated with appeals on both final and interlocutory matters. These provisions negate one of the principles of the overriding objective that interlocutory appeals must be kept at a minimum. The general trend is to limit the scope of interlocutory appeals as these have the effect of delaying litigation but also increasing costs.

The Employment and Labourt Court Bill, 2011 takes a different approach. Section18 provides that any party to any proceeding may appeal to the Court of Appeal against any final judgment, award or order of the Court. Section 18(2) further provides that the appeal shall be limited to matters of law only. Two issues are to be noted; First, interlocutory appeals are excluded completely from the scope of appeals and second, whether the appeal is from an original or appellate judgment, award or order the appeal will be only on a matter of law.

It is imperative the right of appeal in both bills be harmonized with that provided for in the High Court exercising general jurisdiction in order to ensure equality of litigants.

Weekend Miscellany

2011-08-06T13:05:00.000+03:00

Meanwhile a round up of some stuff going on legal circles while I was away ......

Vetting of Judges and Magistrates Board Members nominated

The President in consultation with the Prime Minister has nominated Sharad Rao as the Chairman of the Vetting of the Judges and Magistrates Board. Other members include Justus Munyithya, Roseline Odede, Ngotho wa Kariuki, Meuludi Iseme and Abdirashid Abdullahi. They shall be appointed once approved by the Parliament.

Sharad Rao was appointed to the position of Director of Public Prosecution in the 1980 under the then Attorney General Charles Njonjo. Justus Munyithya and Roseline Odede are members of the Council of the Law Society of Kenya.

Subordinate Court Jurisdiction on employment and labour matters

The Chief Justice by Gazette Notice No. 9243 dated 27^th July 2011 has now designated all Courts in the 47 Counties presided over by magistrates of the rank of Senior Resident Magistrate and above as Special Courts to hear and determine employment and labour relations cases within their respective areas of jurisdiction. The matters relate to the following specific areas; work injury related matters, offences under the Labour Institutions Act, 2007, offences under the Employment Act, 2007, offences under Occupational Safety and Health Act, 2007 and offences under the Labour Relations Act, 2007.

Section 12(1) of the Labour Institutions Act grants exclusive jurisdiction to the Industrial Court to deal with all disputes between employers and employees. This situation had created practical problems in the filing of claims as the Industrial Court only sits in Nairobi and the ordinary civil courts have turned away litigants who seek to file suits. To deal with this problem the Deputy Chief Justice issued the circular dated 27th June 2011 instructing heads of stations and deputy registrars as follows, " Kindly note that claims arising out of employer/employee relationship that are of tortuous nature are not labour disputes and therefore fall within the jurisdiction of the courts and should be filed in the court not in the industrial courts. Kindly, note this clarification in order that litigants of this king are not any more sent away from the courts."

The practice direction has now been superseded by the Notice issued by the Chief Justice. I have discussed the issue of exclusivity and criminal jurisdiction of the Industrial Court and I now hope this issue can now be laid to rest.

Court allows Kamkunji By Election to proceed

On 29th July 2011, the Court of Appeal issued an orders suspending the orders of the High Court stopping the Kamukunji by-election. Relying on its own previous decisions, the court noted, "We nevertheless appreciate too the right of the people and electorate of Kamukunji Constituency to participate in national debate through a lawfully elected representative, particularly at this crucial time .... There must therefore be a delicate and proportionate balance to achieve a just result. There is no telling when the applicants and the respondent will finalise their battle in court." The date for the by-election has now been set for 18th August.

President appoints member of the JSC

The President has nominated Dr Samuel Kobia to be a member of the Judicial Service Commission. He replaces Bishop Anthony Muheria who resigned. The nomination is subject to parliamentary approval.

Extension of term of South Africa Chief Justice unconstitutional

In a ringing endorsement of the principle of judicial independence, the Constitutional Court of South Africa declared that the purported extension of the term of the Chief Justice of South Africa, Justice Sandile Ngcobo by President Zuma was unconstitutional. By the time the court rendered its decision the Chief Justice had in fact indicated to the President that he would be leaving office by 14th August 2011. The President must now appoint a new Chief Justice by 15th August.

Reflections on the end of Term

2011-08-05T15:02:00.000+03:00

Naked Justice, Supreme Court, Nairobi

Another court term has come to an end. Time for reflection and accounting. I am afraid my court report is not good. My performance is below par as there is little turnover of cases heard and determined. The promise of the new rules and the overarching "Overriding Objective" is yet to be felt or implemented. In order to move forward, I think, there must be a concerted effort to clear backlog which can only be done with sufficient judges and magistrates and co-operation of counsel.

I also think that implementation of the "overriding objective" requires a change of attitude and a level of pro-activeness by the court and practitioners. The implementation of the O2 principles relies on control of proceedings by the court. Thus, the first plank of implementation is intensive training of judges and magistrates on the application of the new rules. I have just seen, in the newspapers, a request for expression of interest for a consultancy to develop a curriculum for training on the Civil Procedure Rules, 2010 and Court of Appeal Rules, 2010 for the Judicial Training Institute. I hope this signals an investment in training of court officers.

Without judicial control, the second plank of the O2 principles is unlikely to be achieved. Part of the problem of delay and backlog is attributed to the manner in which advocates prepare and try cases. Court insistence on meeting timelines and sanctioning advocates with costs for non compliance with directions will assist the court in meeting the overriding objective. I hope that the LSK CLE programme will be an avenue for education and training. Good trial advocacy is indispensable if the overall objective of expeditious, fair and just disposal of suit is to be achieved.

The third plank for success is investment in appropriate technology. I believe that a substantial amount of time spent on manual recording of proceedings will be saved by instant and computerized recording. This must be implemented as soon as possible. Technology will also assist in tracking of cases and allocating resources where they are required. In fact without appropriate technology, it will be difficult to make any headway in speedy determination of cases.

Another issue that must be dealt with is the 3-judge High Court Bench. The constitution of a three judge bench to hear a matter for one, two or three days has a horrendous effect on other cases in the High Court. The Constitution requires that where a matter raises substantial issues of law are raised in a matter of enforcement of the Bill of Rights or interpretation of the Constitution then the matter will be heard by a minimum of three judges. It is now apparent that the High Court is facing a deluge of constitutional cases which demand quick resolution yet there must be had, regard to the scarcity of judicial resources to deal with all the cases I would suggest that the Chief Justice issue a practice direction, where possible to determine what constitutes "substantial issue of law."

I still lament the death of the commercial court!

Jurisdiction of the Courts of High Court Status

2011-07-30T15:05:00.000+03:00

I have no doubt that the proposed Employment and Labour Relations Court and the Environment and Land Court (High Court Status Courts) to be established under Article 162(2) will lead to a lot of litigation. I have written about some of the issues here and I think the overarching issue of jurisdiction will give the courts some heartburn.

Exclusivity of Subject Matter

The nature and extent of the jurisdiction of High Court Status Courts to be established under Article 162(2) deal with specific subject matter. First, there is the issue of exclusivity of the subject matter. It is argued that on a reading of Articles 162(2) and 165(5) means that the court must be empowered to deal exclusively and wholly with the subject matter as defined. So that if the Employment and Labour Relations Court is empowered to deal with labour matters then that court is to deal with the whole spectrum of matters regarding labour including criminal matters. Second, the argument is then extended further to argue that Article 162(2) does not grant authority to the legislature to create a “court system” so that subordinate court cannot be granted jurisdiction to deal with the subject matter of the courts defined by Article 162(2).

Parliament to Determine Jurisdiction

The answer to this question is to be found in Article 162(3) which is clear that “Parliament shall determine the jurisdiction and functions of the court contemplated in clause (2).” Parliament is thus entitled to determine the nature and extent of that jurisdiction including the exclusivity aspect. Article 162(2) does not require that the High Court Status Courts shall deal with all the disputes but that Parliament shall determine the extent of that jurisdiction. The import of Article 165 then is that once the jurisdiction of that court is provided for then that of the High Court is excluded.

In addition to the power granted to the legislature to determine the jurisdiction of the High Court Status Courts under Article 162(2)¸ parliament is empowered by Article 169 to enact legislation conferring jurisdiction, functions and powers to subordinate courts. The implication of this is that the court may grant subordinate courts the jurisdiction to deal with the subject matter granted to High Court Status Courts under Article 162(2) and confer appellate jurisdiction to that court.

Criminal Jurisdiction

To my mind, the issue of criminal jurisdiction should not arise in the case of the High Court Status Courts. A plain reading of Article 162(2) is that the courts so established are intended to “hear and determine disputes.” Criminal matters are not, in my view disputes as contemplated by the article. As a practical matter though, conferring criminal jurisdiction to special status court would pose serious challenges of access to justice. Imagine a system where the High Court was dealing with all types of criminal offences. The system would be simply overwhelmed thus it make sense to remove criminal offences from the High Court Status Courts.

Interpretation of the Constitution and enforcement of the Bill of Rights

One of the issues that need resolution is whether the High Court Courts have jurisdiction to enforce the Bill of Rights under Article 23(1). The proposed Employment and Labour Bill, 2011 seems to imply that the court has such jurisdiction. Jurisdiction over enforcement of Bill of Rights matters can only be donated, by Parliament, to subordinate courts in accordance with Article 23 (2) of the Constitution. Unless the High Court Status Courts are deemed to be the High Court for purposes of these provision then such jurisdiction would be lacking. Since Parliament is empowered to define the jurisdiction of the High Court Status Courts, does this power include the power to carve out from the Constitution jurisdiction ordinarily granted to the High Court outside the subject matter of Article 162(2)?

Ultimately the contours of jurisdiction will have to be determined by practical issues relating to access to justice, within the constitutional framework.

Certificate of Urgency and midweek miscellany

2011-07-19T20:56:00.000+03:00

The last two weeks of the court term are usually hectic hence my inability to post as much as I would like. Due to the dysfunctional nature of our practice, we now practice by way of Certificate of Urgency where the only way your matter can be heard or fixed for hearing is if you file an application under certificate of urgency.

Independent Commissions and salaries

The CIC pay saga has brought to the fore the role and cost of Commissions and Independent Offices established under the Constitution. In the context of the Kenyan Constitution, these independent bodies are a response to the imperial presidency, all powerful executive and the general distrust of politicians. They are sometimes referred to as fifth branch of government. The focus on salaries and costs alone I think is misplaced. This debate does not take into account the overall or aggregate benefits of these bodies. If we were so worried about the expense of these commissions, would we dissolve the CIC and let the politicians run the show. Or if we found the remuneration bill of the JSC on the higher side, would we let the President pick the judges himself.

I agree that the remuneration of Commissioners must be rationalised and I expect another Commission; the Salaries and Remuneration Commission, will look into these matters. It must also be accepted that the public service pay can never match that of the private sector. Public service does not require a vow of poverty but demands civic consciousness.

New Commissions and self preservation

One of the features of the Labour Court Bill, 2011 is that it tries to parachute the current judges into new positions without the necessity of some public examination and assurance that they meet the requirements and standards set by the Constitution. The Ombudsman Commission Bill, 2011, the Kenya National Human Rights Bill, 2011 and the National Gender Commission Bill, 2011 all have the same transitional provisions saving the current commissioners and entitling them to futher fixed terms.

A good case can be made for ensuring continuity of institutions but if our national agenda is that of renewal, of promotion of accountability, transparency, good governance and above all establishing a new constitutional order, isn't it proper that all incoming commissioners of these bodies be subjected to the same rigour and standards the Constitution demands. Such standards must not be confined to the judiciary.

Vetting Panels are the in thing!

High Court and Constituency Boundaries

The current impasse on constituency boundaries is the result the High Court granting an injunction restraining publication of the constituencies delineated by the now defunct Interim Independent Boundaries Commission. The 5th Schedule of the recently enacted Electoral and Boundaries Commission provides for the resolution of the issues arising from the first review. Section 4 of the schedule provides that a person may apply to the High Court for review of a decision of the Commission made under the Constitution or the Act. Article 89 of the Constitution is also to the same effect save that the period the court is expected to decide the matter under the Constitution is three month and not one month as provided in the Act.

Given the controversy surrounding the last review, the High Court will obviously be the final arbiter of Constituency Boundaries. Both the Constitution and the Act do not determine or prescribe the guidelines, remedies and procedure on how the court should exercise jurisdiction. The difficulties of this should not be underestimated. Let me give two examples.

The first concerns, the name of a constituency or ward. A group of constituents assert that the name of that constituency does not reflect the history of the area, or is negates the contribution of a section of the community. If the court agrees does it rename the constituency or refer the matter back to the Commission for consideration of another name.

The second concerns actual boundaries. Say a person from Lurambi Constituency complains about the boundary. There are no appeals regarding the neighboring constituencies. Obviously, interference with the Lurambi boundary would affect the neighboring constituencies like Shinyalu, Ikolomani, Mumias and Malava. In the event the case is made for interference the court will have several options in the case; redraw the boundaries itself or direct the Commission to act in accordance with its directive by redrawing the boundaries.

The Chief Justice, as the rule making authority, will require to promulgate rules for the purpose of operationalising these provisions as lawyers prepare to litigate.

Chief Justice, Supreme Court and litigation

It is not only in Kenya that the position of Chief Justice is under litigation. The reappointment of the South Africa Chief Justice, Sandile Ngcobo is under consideration by the Constitutional Court. In the meantime, the case challenging the appointment of the judges of the Supreme Court of Kenya has now commenced after the judges dismissed an application by the applicants seeking to have Justice Mwilu disqualify herself from the matter on account of her relationship with the Attorney General.

The Disciplinary Committee and the Midweek Miscellany

2011-07-13T20:13:00.000+03:00

Naomi Wagereka, Member of the Advocates Disciplinary Committee courtesy The Standard.

The Disciplinary Committee

I would like to correct some impressions created by Pravin Bowry in his article titled, “Spotlight need to shine on lawyers too” in regard to the Disciplinary Committee. Firstly, the Disciplinary Committee is not an “in house Committee of the Law Society of Kenya.” It is a statutory body established under the Advocates Act (Cap 16 of the Laws of Kenya). It is headed by the Attorney General or his duly appointed representative. Though the secretariat of the Committee is housed by the LSK, the Committee functions independently and its decision making is not influenced by the LSK.

Secondly, the Committee is a judicial body which hears complaints against advocates on matters relating to professional misconduct. The Committee does not investigate complaints itself but hears complaints brought before it by the Advocates Complaints Commission, the Law Society of Kenya itself or any person who has a complaint against an advocate. Anyone, including the KACC can lodge a complaint regarding professional misconduct against an advocate. The Committee as a judicial body, is bound by the rules of natural justice and must make its decision according to the law and based on the evidence before it.

Thirdly, where criminal offences are committed by advocates, then the relevant authorities, like KACC, the Police and the Registrar of the High Court must take action. That Mr Bowry is aware of criminality and does nothing in the position he holds is perhaps an indictment on that office. The status of an advocate does not confer immunity and anyone with evidence of wrongdoing must take the issue to the relevant authority.

The Committee sits every Monday, whenever possible, at the Professional Center. Its proceedings are open to the public.

Illegally acquired land; Minister to seek Supreme Court Opinion

Demands on the Supreme Court are not relenting. Honourable Orengo, the Minister of Lands, says that he will seek the Court opinion of the validity fraudulently obtained titles. The Government strategy to invalidate titles has been to issue gazette notices. This has come under scrutiny by the courts and if recent decisions are anything to go by, this strategy is destined for failure.

I think this is an issue that should be tackled through the legislative process rather than the judicial process. The judicial process may not yield or permit the necessary outcomes that take into account various policy objectives of the state and balance them with individual rights. Article 40(6) of the Constitution excludes unlawfully acquired land from the scope of protection. The legislature should take the cue and enact appropriate legislation that ensures due process.

HIV and AID Tribunal

The HIV and AIDS Tribunal established under the HIV and AIDS Control Act (ActNo. 14 of 2006). The Act creates a legal regime that promotes public awareness on matters of HIV and AIDS. More importantly, it provides a regime for the protection of the human rights and liberties of persons infected by HIV and AIDS by prohibiting compulsory HIV testing contrary to the provisions of the Act, guaranteeing the right to privacy of the individual, outlawing discrimination in all its forms and subtleties against persons with or persons perceived or suspected of having HIV and AIDS and ensuring the provision of basic health care and social services for persons infected with HIV and AIDS.

The tribunal is vested with jurisdiction to hear and determine complaints arising out of the breach of the provisions of the Act and is entitled to award damages.

The tribunal is headed by Ambrose Rachier, a Nairobi based advocate.

CIC Commissioners pay

CIC Commissioners are constitutional officers and their remuneration is governed by the Constitutional Offices (Renumeration) Act (Chapter 423) which sets out the salary scales applicable for particular offices. The fact that the Commissioners have not been paid for seven months is disconcerting and may negatively affect the implementation of the Constitution. One may not be wrong to conclude that the failure to pay salaries may be intended to put pressure on the Commissioners, who have been very vocal in voicing their concerns on the pace of implementation of the Constitution.

Gender and the Constitution

This article raises interesting issues on gender and the Constitution. Is the not more than two-thirds requirement cast in stone? This issue will ultimately be answered by the courts.

Kituo cha Sheria and Access to Justice*

2011-07-10T18:34:00.001+03:00

Courtesy of Joan Litivini

This week Kituo cha Sheria celebrated its 38^th Anniversary. Founded primarily as a legal aid organization for empowering the poor through the provision of legal services, Kituo is now the largest, indigeonous and premier pro bono legal services provider. It is no surprise that one of its founders, Dr Willy Mutunga is now the Chief Justice of Kenya. If there is a common thread that can be found through the recent pronouncements of the Chief Justice is that of access to justice.

Under Article 48 of the Constitution, the State is obliged to ensure access to justice for everyone. The content and scope that access to justice is infinite and encompasses the recognition of rights, awareness, understanding and knowledge of the law, protection of those rights, the equal access to all of judicial mechanisms for such protection; the respectful, fair, impartial and expeditious adjudication of claims within the judicial mechanism; easy availability of information pertinent to ones rights; equal right to the protection of one’s rights by the legal enforcement agencies; easy entry into the judicial justice system; easy availability of physical legal infrastructure; affordability of the adjudication engagement; cultural appropriateness and conducive environment within the judicial system; timely processing of claims; and timely enforcement of judicial decisions.

The words of our national anthem are very deliberate. “Justice be our Shield and Defender” come before, “May we dwell in Unity, Peace and Liberty.” In the Nyayo days we were taught to live in Peace, Love and Unity with no justice. Our history is demonstrates that without Justice there can be no Peace. Justice is first, without it there can be no Unity,Peace and Liberty.

Congratulations Kituo cha Sheria on your 38^th birthday and may you continue your great work of empowering the poor access justice.

* The address by the Chief Justice of South Africa, at the just completed Conference on Access to Justice, setting out the challenges on access to justice in South Africa is just as relevant and applicable to Kenya today.

Court of Appeal avoids decision of Advisory Opinion

2011-07-08T12:07:00.000+03:00

Court of Appeal Registry

In a terse order in the matter of the advisory opinion filed by the Commission on the Implementation of the Constitution, the Court of Appeal sitting as the Supreme Court under the provisions of the Sixth Schedule section 21(2) of he Constitution stated as follow, " In view of the fact that there now exists the Supreme Court of Kenya and Judges thereto have been appointed and gazetted, it is doubtful whether the Court of Appeal sitting as the Supreme Court is still seized of the jurisdiction to hear and determine this application. In the circumstances, this application is stood over sine die."

Labour Court of Kenya; A superior court with an inferior status?

2011-07-06T20:33:00.000+03:00

The Labour Court of Kenya Bill, 2011 is an attempt to give effect to Article 162 (2) of the Constitution which that Parliament shall establish “courts with the status of the High Court to hear and determine disputes relating to employment and labour relations.” The Constitution does not define what “status” means but in my view it implies that the court so created must have the same juridical independence as the High Court. The current Industrial Court which is the Bill seeks to elevate, is a statutory creation rooted in the Ministry of Labour. It is considered a "subordinate court or inferior tribunal" in relation to the High Court. This also been a source of controversy and confusion. Granting the Court “the status of a High Court” must necessarily means it must be removed from the ambit of control by the Ministry of Labour and placed within the mainstream Judiciary. The question of determining the status of that court and whether it meets the standard of the High Court is not just a question of form but one of substance and one of the key issues that must be dealt with in this regard is that of the judges who will preside over the court.

The independence of Judges is hallmark of status of the court. Section 5 and 6 of the Bill creates a statutory regime of judges’ appointment outside the Constitutional realm. Though, the statute may give the guarantee of independence through appointment and tenure of office, the fact of statutory appointment implies that they are somewhat “less than High Court Judges.” This fact was not lost to a previous appointee who declined to take up her position on the Industrial Court.

The only way the Labour Court can maintain the “status of the High Court” is to have High Court judges. The Bill should be amended to simply state that judges of the Labour Court shall be Judges of the High Court appointed in accordance with the Constitution. The Judicial Service Commission when making recommendation for appointment of judges to the Court shall have regard to experience and knowledge in Labour Law and Industrial relations practice. Put is another way, can legislation once enacted, be amended, in manner detrimental to the judges appointed under it? As this is ordinary legislation, the answer can only be yes!

The Bill also fails the “status of High Court” smell test. Section 36 (3) of the Bill provides, “The persons who, at the commencement of this Act are Judges of the Labour Courts shall be deemed to have been appointed under this Act.” Unlike High Court Judges who must be vetted by virtue of the Section 23 of the Sixth Schedule to the Constitution, Judges of the Industrial Court are “deemed” to have been appointed. Judges appointed under the Labour Institutions Act, 2007 and its antecedent legislation cannot be equated to those judges who have been vetted or appointment in accordance with the Constitution. This provision really must be removed.