SPEECH - INDUCTION HIGH NEW JUDGES.pdf - The Judiciary

Address to new Judges
Chief Justice Dr. Willy Mutunga
Judicial Training Institute
October 3, 2011
Dear colleagues
Welcome to the Kenyan judiciary. You are part of my great team that
must reform the judiciary. While I am sure we will continue
brainstorming on what must be done to reform the judiciary I thought I
would share with you some thoughts on various aspects of our work. As
you settle in and start forming opinions on what must be transformed
you must let me know as soon as possible. I can tell you that settling in
may be easily said than done. I am now convinced I will settle in the
moment I leave!
The importance of the High Court
Article 165 of the constitution gives the High Court a critical jurisdiction
that makes it the most important court in the country in the
implementation of the new constitution. It is envisaged we will have a
High Court in every county and that will make the role of the Principal
Judge very pivotal in leading a team of over 100 judges who will hold
her/him accountable on many issues. The modern Bill of Rights
provides for a whole gamut of rights that give judges a jurisdiction that
has political ramifications. The High Court will called upon to pronounce
on issues of basic needs for all people, and consider issues of
corruption and waste in the implementation of economic, social and
cultural rights.
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I see Chapter 6 and the legislation under it bringing in litigation that will
call upon you to decide on issues that raise much political heat. Besides
election petition there will be many cases under this Chapter urging you
to disqualify individuals from holding any other State office. To my
mind you be called upon to decide on issues of probity in public office
whether elective or appointive. You will participate in the quest for
alternative political leadership in the country as a consequence of
implementing Chapter 6. We need to reflect on security issues that will
be faced as implement the new constitution.
Changing the face and image of the new judiciary
You are the first judges in Kenya to be appointed after public interviews
conducted by JSC. Kenyans were asked to participate in your
recruitment. The provisions of Chapter 6 of the constitution and the
values and principles laid out in Article 10 and other values provided for
in various provisions of the constitution. You can claim your
appointment complied with the provisions of Art 159 as your judicial
authority and appointment was derived from the people themselves. In
the eyes of the Kenyan public you represent the face of the new
judiciary they wish to see. The expectations are astronomical. You will
be subjected to pretty high standards of ethics and interest that will be
monitored through consistent and continuous public scrutiny. The trust
bestowed on you by the public must never be abused. You are the
cornerstones of a transformative judiciary.
Divisions are rampant in the Judiciary
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It is common knowledge that divisions (ethnic, religious, gender, region,
generation, race, nepotism, cultural and status) exist in the judiciary. I
hope none of you has been recruited into any of these divisions. The
JSC and I are committed to creating a patriotic judiciary that sees our
nation as bigger than any sectarianism. We will not hesitate to take
disciplinary action to eradicate these divisions. In my view such
divisions constitute such either gross misconduct or misbehavior under
Article 168 of the constitution.
The role of the JSC
You have all encountered the new and expanded JSC representing
respective interests in the judiciary, LSK, the Public Service Commission
and the public at large. The CJ in JSC is no longer the unaccountable
judicial monarch of the old constitution. The JSC is a realistic organ of
recruitment, discipline, and oversight over the judiciary as mandated by
the constitution and the relevant statute. Through its committees it will
make sure that the administrative arm of the judiciary serves the
judicial one while creating governance structures that modernize,
democratize and decentralize the judiciary. The JSC will make sure that
the new structure of the judiciary of the constitution is harmonized and
synergized through proper management by decentralized leaderships.
The JSC has the will to implement all reforms that the judiciary has
recommended in the past. It will also protect the judiciary, agitate for
better terms for the judiciary, and ensure the security of every judicial
officer and paralegal. The JSC will play its pivotal role in ensuring the
decisional and institutional independence of the judiciary is guaranteed
and it will conduct a consistent and continuous dialogue with judicial
officers and paralegals. It will oversee access to justice all over the
country. You have in the JSC a very able, effective, very learned and
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extremely hard working representative in Judge Lenaola. You should
always raise your concerns with him and above all come up with
solutions to problems that will benefit the judiciary.
Promoting robust jurisprudence
I have discussed the role of the High Court in the implementation of the
new constitution. We should assume that not all your decisions will be
appealed against in the superior courts. We must get it right from the
start. We have to conference, share views on legal issues before us, and
create a robust jurisprudence that makes the law certain. We have
systems in place that can help know what our sisters and brothers are
deciding on some issues. There is no reason for us a jurisprudence of
leadership in various aspects of the lives of our people. I believe we
have an opportunity under the new constitution to give leadership,
through proper interpretation of the law and constitution, on critical
matters that are burning in the nation. The constitution in my view
shuns staunch positivism and encourages innovation and creativity. A
cursory reading of Article 10 of the constitution will give you an idea of
what I am talking about. In this regard I hope we will be able to revisit
and understand the concept of judicial activism that I believe is
misunderstood in the corridors of our judiciary.
Judicial etiquette and new value system
JTI should be able to give you the final draft of our judicial ethics and
code of conduct. We have material that will determine our value
system as judicial officers. We now have a legal and moral code that
governs our behavior. As we talk about the public perception of the
judiciary our value system as individuals and collectively as judicial
officers is critical in changing those perceptions.
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I do not expect the judiciary to be a convent. We must tell Kenyans
what we do and what we cannot do. I believe leaving the church before
the service is over so that you do not create a perception that you are
not independent is ridiculous! You must talk to the congregation. If any
of them has the audacity to talk about their cases in court you simply
tell them it is not done. I believe we will be believed by Kenyans if we
interact with them and let them know that justice is not for sale. I
expect you to give that message to your family, your friends, relatives,
club members and people you meet in schools and places of religious
worship.
We must demystify the “status” of a judge; stop calling courts “ours”
since they are now public courts. We need to exhibit modesty,
humanity, caring, and patience as we hear cases. It will do no harm to
have eye contacts will counsel and the parties. I have been in courts
where our colleagues do not even look at the accused persons in the
dock who may be bloodied up and need to be taken to hospitals!
The role of JTI
JTI must become our judicial think-tank, an institute of excellence, the
nerve centre of robust and patriotic jurisprudence. I know many of you
have great skills and expertise that can benefit JTI, the judiciary and the
country. JTI will map these skills and expertise so that we have internal
direction that can be reinforced by external interventions. I would like
to see JTI host conferencing on critical issues attended by judges and
magistrates where our collective intelligence can benefit the country.
JTI will the institution where both mentorship and peer reviews are
discussed. JTI must own its facilities and gradually become an institute
of higher learning. I salute the vision, drive, commitment of Judge
Kariuki and the invaluable assistance and insights that Judge Mureithi
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has brought to bear in the JTI. I know some of you have been great
trainers and will continue to assist. JTI will train magistrates and
paralegals. I know that soon JTI will be asked to help strengthen the
capacity of the embryonic judiciary in South Sudan and soon other
countries in the East African Community will follow suit.
I need say no more. JTI is and will have to be one of the engines for
undertaking fundamental reforms in the judiciary. Its approach must be
multi-disciplinary and I hope we will be able to recruit not only
specialists on stress management but counselors as well!
One final comment on research that is important. I know that research
has been punished rather rewarded in the past. This will never be the
policy of the new judiciary and such work will find itself in the seminars
of JTI. I hope the works of Judges Meoli, Nzioka and Weldon Korir, for
example, can be the subject of brainstorming in JTI.
Vetting of Judges and Magistrates
I urge that we approach the vetting of our colleagues as an institution.
We must make sure that the process is just, impartial and transparent. I
know there are people who see the process as yet another radical
judicial surgery. We must ensure the exercise is concluded as quickly as
possible so that the despondency and anxieties among our colleagues
comes to end and we can get down to the business of administering
justice to our compatriots. We have urged that the Board be well
resourced. We have recommended certain amendments to fast track
the entire process. We must jealously guard the integrity of the
institution of the judiciary.
The next elections pose the real test for the judiciary
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I am convinced that a critical benchmark for judicial reforms we are
undertaking shall be Kenyans coming to the courts convinced they will
have justice over their claims over the concluded elections. We must
make it known to all Kenyans and the world that we demand free, fair
and peaceful elections. As a critical arm of the state we owe that
position to our fellow citizens. If our demand is to be taken seriously we
must start building confidence among Kenyans that we can be relied
upon to give justice to both the poor and the rich. We must be sure
going forward that Kenyans will not only fund the judiciary, but also
solidly defend it. This can only happen if the judiciary becomes a
judiciary for all Kenyans.
Dr. Willy Mutunga, SC
Chief Justice/President, Supreme Court of Kenya
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