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