International Justice Monitor

A project of the Open Society Justice Initiative

Kenyan Chief Justice outlines progress in judicial transformation

Part of the argument the Kenyan government has made the whole of this year against the International Criminal Court (ICC) taking up cases against six of its citizens is that the judiciary is on the path of reform and within a year will be able to meet international standards of justice.

When Chief Justice Willy Mutunga, however, presented his progress report last week on his first 120 days in office, he talked of an institution so frail that the work to transform it has barely started.

In January this year, one side of the coalition government sought and got the backing of the African Union (AU) to seek a deferral of the Kenya cases at the ICC, partly on the basis that the judiciary was being reformed. For good measure, President Mwai Kibaki nominated, on the eve of the AU deliberations, men to the offices of Chief Justice, Director of Public Prosecutions, and Attorney General. Prime Minister Raila Odinga challenged those nominations saying he had not been consulted as required under the constitution. A political impasse ensued with other organs of state raising the bar in the public argument by saying the constitutional standard of public involvement in such key nominations had not been met, irrespective of whether the president consulted the prime minister.

The result was a process of the Chief Justice’s post being advertised and public interviews being conducted. After the most gruelling vetting process any Kenyan public official has been subjected to to date, Mutunga took office on June 20.

At the same time Mutunga took office, Kenya had an appeal pending before the ICC asking the court to reconsider its application to have the two Kenya cases stopped as Kenya investigates the individuals named by the ICC prosecutor as suspects. To support its application, Kenya included the laws requiring judicial reform.

“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,” is how Mutunga described the judiciary he entered in June this year. He was speaking on October 19 to Supreme Court and other judges, the Attorney General and others as he presented his first public progress report.

“We found a Judiciary that was designed to fail. The institutional structure was such that the Office of the Chief Justice operated as a judicial monarch supported by the Registrar of the High Court. Power and authority were highly centralized,” said Mutunga.

In his first four months as Kenya’s 14th Chief Justice, Mutunga says he has begun to strengthen judicial offices, re-assigned judicial officers to begin cutting the huge backlog, and appointed an ombudsperson as one permanent measure to handle public complaints and restore confidence in the judiciary.

As an example of the judiciary’s frailty, Mutunga said he found the Office of the Chief Justice consisted of just two secretaries and six bodyguards. This was all the personnel he had to help him discharge his constitutional duty of overseeing a judiciary while at the same time holding in check the executive and legislative arms of government. No legal researchers. No liaison officers. No public relations office.

“This state of affairs imperil our democracy as the imperative of checks and balances effectively becomes inoperative when the balance of power is heavily tilted in disfavor of the judicial arm, as it is now,” said Mutunga.

In comparison, President Mwai Kibaki’s executive office consists of someone who is the link between him and the 250,000-strong Kenyan bureaucracy, another who manages his official diary, someone else responsible for his public image, and still another who runs his official residences across the country. This is separate from the Cabinet, which also helps the president execute his functions. This is in addition to the usual retinue of secretaries and bodyguards.

Mutunga said that an analysis of the estimated one million-case backlog showed two-thirds were traffic-related. He said he will appoint a senior magistrate to plan how to deal with the traffic-related backlog and begin clearing it. He will also write to the police chief to have his officers advice which cases cannot succeed so as to clear them from the backlog.

To also help with the backlog, Mutunga is focusing his attention on the Court of Appeal, which is just below the Supreme Court in hierarchy. He said he aims to have the Court of Appeal handling only fresh applications in six months’ time and also reduce the time for appeals to be determined to one year, from the current six years.

“Clearing the backlog will not only serve the ends of justice but also free resources into the economy and deepen investor confidence,” Mutunga said. In September, the Judicial Service Commission hired 28 new High Court judges after vetting more than 140 applicants in a process open to the public. The extra judges will also help ease the backlog.

To improve the quality of judgements made, the Judicial Service Commission has begun a process to hire legal researchers for all judges and some magistrates. This is the first time Court of Appeal and High Court judges and magistrates will have research assistants in Kenya’s history.

Also for the first time, Kenya’s Chief Justice has a chief of staff who initially will be the all-purpose man as he structures an executive office to help Mutunga discharge his duties. Mutunga said he hopes the heads of the Court of Appeal and High Court develop similar offices.

The big challenge now remains the constitutionally-required vetting of all judges and magistrates who were in office before August 2010. There is a court case challenging the law elaborating that constitutional requirement, which has jammed the process. Also, two foreign members of the panel charged with the vetting process have resigned further complicating matters. This vetting, which is to flow in stages, was set to be completed in one year but had suffered several delays. The aim is to restore public confidence in the judiciary by weeding out judges and magistrates found to be corrupt or inept.

Update

To see the Report of the Kenyan Chief Justice, please see:

http://www.judiciary.go.ke/index.php?option=com_content&view=article&id=2123&Itemid=2123

5 Comments
  1. Where can one look up and download the public progress report? I would expect a link to it in the article.

  2. Dear Taegin, thank you for the welcome link, much appreciated. The report indeed deserves a visit and a fair reading. I quote only one of many passages here:

    “For the past 20 years, no less than four internal reports on the Judiciary have been published. These fairly robust and honest self assessments identified long standing problems that plague our system of justice, and in their pages are some very progressive recommendations. Most of these have remained unimplemented. There was lack of will and support to implement the recommendations. ”

    Mutunga would be very, very well advised, to learn from the experiences of GJLOS, He knows that project, the greatest and most ambitious reform endeavour that ever was in Kenya since 1895. Somehow, alas, I have the feeling that he has not yet entirely assessed the reasons both why GJLOS was so great and masterful, and why it largely failed in the end, after very promising beginnings.

    As to the *intra-judicial* weaknesses, the reports assesses one of the most important ones only casually and superficially, although it was already spelled out in 2004 in an important judicial reform seminar: the fact there there exists zero judicial independence, and that the fundamental principle of the “lawfully determined judge” is not even known as such in Kenya. But Kenyan jurists do never learn from foreign best practice.
    The two other main weaknesses have not been addressed and tackled, probably because they are not within the realm of a chief justice to influence or to change. These are the firstly legal system, based on the middle ages (Common Law), with incredibly bad and ineptly drafted statutory laws, either of them totally unsuited for Kenya; and the near total lack of judicial learning. Both bench and bar are so unlearned that they do not even qualify for positions of legal secretaries and typists in any developed legal system. Look only at Keriako Tobiko (new and old DPP), who in trial showed that he did not even know elementary basics of the laws of criminal evidence, as I was shocked to witnessed. The lawyers with one or two exceptions are as bad and unlearned as the judges. Hardly any Kenyan has education, leave alone proficiency in any Civil Law system, and those who have, have not come back, but remained abroad.

  3. Dear Sir/Madam,

    Hello and how are you doing? I hope you are carrying on well.

    Iam the above named person and I come from Nakuru – Kenya.

    On 21st June 2008, I was involved in a road traffic accident along Nakuru – Nairobi highway,near Kunste hotel and Shell Petrol Station.It is also Nakuru- Nyahururu Highway.

    My right shoulder got broken inside and got deformed. I still live with this problem and back bone pain.

    I was admitted in hospital for 6 days.Same I was reffered to Amaco Insurance Company,owned by a prominent Kenya Politician,William Kipchirchir Ruto.

    Through the influence of a lawyer, whom I requested assistance,the insurance used my documents and paid out to 2.1 Million Kenya Shillings.

    The Insurance took 1. Million Kshs and the advocate 1.1 Kshs.

    I myself Personally,I was given nothing.

    With the executive directives of the executive Director of Amaco Insurance Company,William Samoe Kipchirchir Samoe Ruto,I was beaten and assulted so as not to ask my compensation.

    I come from a less fortunate family.

    After been admitted for 9 days in hospital,recently, I found it wise to request you to kindly publish my problem.

    I was food poisoned,and got treated with surgery,after having abdomen pain.This is because,I was begging Money to buy medication,food and money from the kind people,that politicians beg votes.

    I blame the William Samoe Kipchirchir Ruto,who as a politician has rights to investigations,of such problems, like mine to avoid losing customers in his Company.Same he has right for investigations,to avoid his political ambitions.

    Please help me.

    Thank you.

    Warm regards,
    Joseph. Tel 0727448461.

  4. Good day!
    In the year 2002, as a former employee of Kenya civil aviation authority(then DCA),together with 68 others were dismissed from service following an industrial action.We were taken to court and all of us were acquited.We sued the government after it became aparent that the employer had refused to reinstate us back to work and it was ruled in our favor and the order was that the dismissals were null and void hence werr to be paid all our salary arrears and accrued interest from the date of dismissal.The respondent filed a notice of appeal which has never taken place todate.
    The 69 proffessionals are still out of work and efforts even thru parliamentary motions to have the reinstated have not succeeeded.
    How long can an appeal notice remain valid?
    Can it be used to block justice to the aggrieved?
    What should we do to atleast get our court awarded compensation paid.We are suffering together with our defendants.

    RURIANI MICHENI-0721403127/0733724098
    CASE NO.1278 of 2004 High court of Nairobi

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