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:
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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.
- 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
