Monday, 24 October 2011

Chief Justice Willy Mutunga's Mashujaa Day Speech

Here are some truncated excerpts from his speech that I found quite interesting, with some of my comments:

7:26 AM 10/24/2011

CJ's speech truncated excerpts (with my comments or clarifications in parentheses):

, the Judicial Service Commission (JSC) which, in many respects, has set the golden standard in the vetting of public officials. 

an oppressive system of government can easily use courts to perpetuate a miscarriage of justice.

(rate of progress would depend on):
  • the values and quality of the people who lead it;
  • the aspirations and design of the Constitution that creates it;
  • and the vigilance and civic consciousness of the people who continuously demand better.

to ensure equitable access to, and efficient and effective delivery of, justice.
only in their interest and for their benefit (the people's interest).

What is new is that we have the collective will of the Kenyan people, and the leadership in the judiciary to implement these reforms. In designing my reform agenda, We have borrowed heavily from these reports, while reviewing and updating them to reflect the context and demands of the Constitution.

(near the end of the speech in his concluding remarks he talks about the pace of change depending on the pace of our journey towards belief in integrity.  He seems very sure and I agree that while he can put in the systems he cannot expect instant change in the corruption level of the judiciary around the country.  But that is quite serious.)

We found an institution so frail in its structures; so thin on resources; so low on its confidence; so deficient in integrity; so weak in its public support that to have expected it to deliver justice was to be wildly optimistic.

We found a Judiciary that was designed to fail.

decentralised Judiciary with the Supreme Court and the Court of Appeal having their own Presidents and the High Court having a Principal Judge at their respective helms.

to give effect to the intentions of the Constitution. I have set up a Leadership Committee which will act as a management team for the entire Judiciary. Its composition – from the Chief Justice as Chair, DCJ, President of Court of Appeal, Principal Judge of the High Court, as well as representatives from the magistracy and the paralegal fraternity – permits all the voices of the Judiciary to be heard

the necessary political will to implement reforms that (address problems):

Some of these include
  • excessive bureaucracy and
  • silo mentality among organisational units and the court system;
  • backlog of cases;
  • endemic corruption;
  • inefficient and ineffective case flow management;
  • poor terms and conditions of service for judicial and administrative staff;
  • poor infrastructure;
  • absence of a clear transfer policy;
  • understaffing;
  • artificial workloads occasioned by unfilled approved vacant positions;
  • remuneration imbalances due to haphazard salary grading and compensation structures  where, for example, magistrates are poorly remunerated relative to other court officers; weak institutional and staff performance management systems;
  • blatant disregard for performance and financial audits;
  • fragmented reform interventions; and
  • inadequate implementation capacity of recommended institutional reforms by the various task forces.
Our transformation agenda seeks to address all these composite defects.

invocation to the Judiciary: Clean Up, Now!

One of the first actions I undertook was to appoint an Ombudsperson to receive and respond to complaints by staff and the public. In just three months, the office has received over 700 complaints of various categories!

The disparities in pay between judges and magistrates, on one hand, and judicial officers and administrative staff, on the other, were acute.

The JSC approved the creation of additional posts in the magistracy and Kadhis establishment and now has before it a recommendation from my office to immediately promote 278 magistrates and 12 Kadhis.

The Judiciary must be a place where the dignity of workers is respected and upheld.

adjourn cases, it is not surprising that the Judiciary would be swamped by close to one million case backlog.

close to two thirds of the cases are traffic-related. As an immediate response, I have appointed a Chief Magistrate to specifically deal with this issue in a comprehensive and speedy manner. 

(how?  this seems vague, sir:  you haven't mentioned the police and the intimate relationship between the security services and the judiciary.  what are you proposing to do about disciplining the police and city council officers?  Will the ombudsperson have jurisdiction over such questions?  to what extent is there an overlap between the ombudsperson for the judiciary and the general ombudsperson and to what extent have structures been created for interdisciplinary communications and relations - are various arms of your judiciary and the arms of other sectors especially the corrupt police service in communication with one another?  To what extent do you feel that it is important to address the need to identify the forces at play and to restructure how these forces are mediated?)

At the High Court alone, we found 2,015 pending criminal appeal cases. Some have been not been heard for as long as 20 years because their files are missing or the records are incomplete. It is a mockery of the oft-quoted legal adage that justice delayed is justice denied,

First, I am happy to report that the Judiciary has now completed digitising 60 million pages of cases for the High Court across Kenya. The Court of Appeal has digitised 10,000 records covering the years 1999 to 2010. Some 1,042 cases that should be progressing in the High Court are waiting arguments at the Court of Appeal while some 942 main appeals are yet to be heard. We have asked parties in the oldest cases, filed as far back as 2004, to take dates within the month

Further, my office and the ICT department are in the process of creating an electronic-based system for monitoring and tracking overdue judgments and rulings with a view to taking remedial action.

Queuing of cases will take away the incentive for corruption.

In the days to come, the public will be able to access case information by short text messages (SMS).

be empanelled automatically using computer software that removes the human hand from the choice of those who hear cases.

(seems that here he is clearly aware that the root of corruption is still elusive)

Kenyans have suggested extending the sitting time, having night courts.

I have also redeployed three other experienced Chief Magistrates to clear the backlog of cases in civil, criminal and commercial appeals courts.

Case backlogs also result from understaffing.

In the past 120 days, the Judiciary has hired 28 new High Court Judges, bringing the total number of to 80. We have advertised for 7 additional Court of Appeal Judges and another 160 magistrates. An amendment to the Judicature Act makes the High Court judges not to be less than 120 and the Court of Appeal not to have less than 30 judges.
In order to free judges to do what they are primarily mandated to do – hearing and deciding cases -- we have completely separated the judicial function from the administrative.

Performance based management
I intend to strictly enforce deadlines on writing of judgments and the hearing of cases.

every judge has a research assistant.

The Steering Committee, under the strong and able leadership of the Deputy Chief Justice Hon. Nancy Baraza, has developed an Integrated Comprehensive and Institutional Transformation Framework. The Judicial Transformation Comprehensive Strategic Plan whose 10 clusters will be given to all of you today is a product of this Steering Committee.

The office of the Chief Justice cannot operate as it does now with two secretaries and six bodyguards and still discharge its functions effectively as well as hold the other arms of government to account.
To remedy this problem, I have appointed a Chief of Staff to oversee the establishment of the Executive Office of the Chief Justice. Both the President of the Court of Appeal and the Principal Judge will also have to establish nimble but efficient executive offices to be able to perform their functions. We must modernise our Judiciary informed by known models and practices of 21st century management science.

The reform of the administrative limb of the Judiciary is one that rarely receives sufficient public attention.

We have advertised for six positions of Directors for Finance, ICT, Procurement, Administration and Chief Accounts Controller and five Registrars, each to serve the Supreme Court, the Court of Appeal, the High Court, the subordinate courts and the Judicial Service Commission.

We have also launched the Sexual Harassment Policy to protect our own staff from predatory social behaviour

Supreme Court is now operational following the establishment of its registry and publication of its interim rules of procedure. Its courtroom is being restructured

The Court of Appeal is to be decentralised to Garissa, Nyeri, Eldoret, Kisumu and Mombasa. The construction of some of these Courts are at an advanced stage.

reorganised and reconstituted the divisions of the High Court in an attempt to honour and respect the spirit of the Constitution and the popular aspirations of our people as expressed through their sovereign will in the referendum. There are now divisions for Land and Environment, Judicial Review, Commercial and Admiralty, and Constitution and Human Rights. The Commercial and Admiralty division will accelerate the adjudication of commercial disputes and reduce the transaction costs of justice for the private sector.

The Constitution and Human Rights division will be the court of first instance in constitutional cases; and will play a leading role in addressing the many issues around the interpretation and enforcement of our expanded Bill of Rights. The Land and Environment division will deal with the critical issues of sustainable development and equitable distribution of resources. We intend to reinforce these divisions as the Judiciary recruits more staff.

fast-tracking certain matters relating to children, victims of sexual offences and older persons. We also recognise the need to fast track and conclude cases that have been in court for over three decades.

14 new courts in places where the Judiciary has never before had a footprint. Additionally, 8 mobiles courts have been set up and 38 new vehicles released to serve court stations in historically marginalised areas. For the first time in Kenya’s history, a judge of the High Court of Kenya has been posted to Garissa. More court stations will be subsequently established in Lodwar, Isiolo and other marginal districts including Archer’s Post, Wamba, Kakuma, Lokitaung, Lokichoggio and Loitoktok, as a way to reduce the cost of justice for litigants.

of continuous learning, vigorous debate and peer review. Until now, there has been no organised training for judicial officers. A curriculum is under development for the Judicial Training Institute and a full time Director has been appointed.  Justice Paul Kariuki we have a well respected and innovative Director.  The JTI will provide the intellectual anchor in making our Courts the home and hearth of a robust jurisprudence.

An important component of the reform of the Judiciary is the vetting of judges and magistrates as called for in the Constitution, and further provided for in the Vetting of Judges and Magistrates Act. Given the enormity of public interest in this matter and its direct bearing on the confidence of my judicial officers, I directed that the constitutional case filed on this matter be fast-tracked and a quick and fair determination made on it.  A ruling on this matter is expected in November.  When it does take place, the position of the Chief Justice and the JSC is that it should not be on the basis of witch hunt but must be fair and transparent and concluded in the most reasonable time possible. Should this process not be concluded within a reasonable time, the case backlog will become a Sisyphean boulder we keep pushing uphill only for it to roll back. I also urge the Executive to expedite the process of appointment of foreign members to the Vetting Board and do so in a consultative manner.

In conclusion, I would like to point out that the Judiciary will not change until those who serve in it and the public change their attitude and behaviour. When we say that judicial authority is derived from the people the implication is that the people should be law abiding –
(so what happened to the will of the Kenyan People that the CJ wants to keep uppermost in mind?  He obviously needs to keep reminding himself that much needs to be done to inspire them to believe in the system and that he is in a chicken/ egg dilemma.)

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